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Per.LUr. :'.A. 7,^J3(

L.L.

U .8 . A •
106

UNITED STATES

SUPREME COURT REPORTS.

Vols. 63, 63, 64, 65.

(BMBBAdHG ALL OPINIONS IN 21, 28, 28 AND 24 HOWARD, WITH OTHERS.)

Attorney at Law

490 Loui$iamAv«.
WASHmOTOH, D, c.

ARGUED AND DECIDED

IN THS

SUPREME COURT

THE UNITED STATES,

IN THtt

COMPLETE EDITION

WITH HEAD LINES, HEAD NOTES, STATEMENTS OP CASES,

POINTS AND AUTHORITIES OF COUNSEL, FOOT

NOTES AND PARALLEL REFERENCES.

STEPHEN K. ^VILLIAMS,

Co-anselor at X^a'w.

THE LAWYERS' CO-OPERATIVE PUBLISHING COMPANY,

NEWARK, WAYNE COUNTY, NEW YORK.

1884.

i.»B«^^

Entered aooordinff to Act of Congreas, In the year elg-hteen hundred and eiffhty-f our, by

THE LAWYERS* CO-OPERATIVE PUBUSHING CO..

In the Office of the Librarian of Ck>ngTe88, Washington, D. C.

B. R. Andrkws, Printer, Rochester, N. Y.

JUSTICES

OP THS

SUPREME COURT OF THE UNITED STATES

DURINO THE TIMB OF THBSB BBPOBTB.

CHIEF JUSTICE.

HON. KOGEB BROOKS TANEY.

ASSOCIATE JUSTICES.

Hon. John McLean,
Hon. James M. Wayne,
Hon. John Catron,
Hon. Peter V. Daniel,

Hon. Samuel Nelson,
Hon. Robert C. Grier,
Hon. James A. Campbell,
Hon. Nathan Clifford.

AtTORNEY-GENERAL.

Hon. Jeremiah S. Black,

to Dec. 26. 1860; after that

Hon. Edwin M. Stanton,

to March 6, 1861; after that

Hon. E. Bates.

clerk.

William Thomas Carroll, Esq.

reporter.

Benjamin C. Howard, Esq.

ALLOTMENT, ETC.,

OF THE

JUSTICES

OP THB

SUPREME COURT OF THE UNITED STATES,

AS IT OTOOD DXJBIKO THB TBRMB OF 1868-9-60, TOOBTHSR WITH THB DATB»
THBIB OOMMIBMONB, AMD TBRICB OP 8BBV1CB, KB8FBCT1VBLT.

Namb op Juoticb, AKD
whbncb apfoimtbd.

Chief Jubticb.

ROGER BROOKS TANEY,

Maryland.

Abbooiatbb.

JOHN McLEAN,
Ohio.

By whom Ap-
pointed.

JAMES M. WAYNE.
Georgia.

JOHN CATRON,
Tenneflsee.

PETER V. DANIEL,
Vir|i:inia.

SAMUEL NELSON,
New York.

ROBERT 0. GRIER,
Pennsylvania.

JOHN A. CAMPBELL,
Alabama.

NATHAN CLIFFORD,
Maine.

President
Jackbon.

CiRcurre,
1842-1862.

COMMIB-
8IONBD.

1886. 1836. Died.
(Mar. 16.) (Mar. 22.) 1864.

(Oct. 12.)

President
Van Bukbn

President
Van Bubbn

President
Tylbb.

FOXJBTH.

Dblawabb, Maby-

1.AND AND VlB-
OINIA.

Seybnth.

Ohio, Indiana. Il-
linois and Mich-
igan.

Sixth.

NOBTH CaBOLINA,

South Cabolina
AND Gboboia.

Eighth.
Kbntucky.Tbnnb-

BBB & MiSBOUBI.

Ninth.
Arkansas & Mib-

BI8BIFPI.

SWOBN Tbrmina-
IN. ' TICK.

1829.
(Mar. 7.)

1886.
(Jan. 9.)

1887.
(Mar. 8.)

1841.
(Mar. 8.)

18801 Died.
(Jan. 11.) 1861.

(April 4.)

188& Died.
(Jan. 14.) 1867.
(July 6.)

1H88.

Died.

(Jan. 10.) It566.

(May 30.)

1842.
(Jan 10.)

President
Polk.

President

PlKKCB-

President
Buchanan.

Second.

Vbbmont, Connec-
ticut AND New

YOBK.

Third.

Nbw Jebbey and
Pennsylvania.

Fifth.
Alabama and Lou

ISIANA.

FiBST.

Massachusetts,
New Hampshibe
<& Rhode Island.

1846.
(Feb. 14.)

1846.

(Aug. 4.)

Ib58.
(Mar. 22.)

1868.
(Jan. 12.)

1846.
(Mar. 3.)

1846.
(Dec. 7.)

Died.

1860.

(M ay 81 .

Resi^^ned.

1872.
(Dec. 1.)

Resigned.

Ift70.'
(Jan. '81)

1863. Resigned.

(Dec. 6.)

1868.
(Jan. 21 )

1861.
(May 1.)

Died.

1881.
(July 25.)

GENERAL TABLE OF CASES REPORTED

l]Sr THIS BOOK.

VOLUMES 62, 63, 64, 65.

Ableman v. Booth, ...

Adiuns «. Noma,

Adams v. Preston, -

Addison, U. 8. «.

Adler ». Fenton,

Alabama «. (Georgia,

Allen V, Newbenv, -

Almy «. California,

Alviso, U. 8. «.

Amey «. Mayor of Allegheny,

Anderson, Mont^mery «.

Anson v. Blue Ridge ll. R. Co.

Appomattox, RR Co., Powhatan 8t. Co. «.

Arkansas, Lytle v.

Aapinwall «. Daviess County,

Aspinwall, Knox Co. «. -

Aspinwall, Knox Co. «.

Ballanoe «. Forsyth,

Ballanoe v. Forsyth,

Bait. 8. P. Co, Haney «.

Bancroft, Sutton v.

Bank of Pittsburgh «. Neal, •

Banning, Jenkins v.

Barber v. Barber,

Bamaby, Britton «.

Barreda v. 8ilsbee,

Barreda, Heirs of, U. 8. v.

Bassett, U. 8. «. •

Beaubien «. Beaubien,

Belcher v, Lawrason,

Belcher v. Linn,

Belcher et al. «. Linn,

Bell «. Yicksbure, -

Benjamin «. Hillard,

Bennitz, U. 8. «.

Berthold et al. v. Qoldsmith,

Berthold v, McDonald,

Bigelow «. N. J. R R. Trans. Co

Binell et al. v. Jeffersonville.

Bliven «. New Eng. 8crew Co.

Bliven v. New Eng. 8crew Co.

Blue Ridge R R. Co., Anson «.

Bolton. U. 8. «. -

Bondies v. Sherwood,

Booth, Ableman «.

Booth, U. 8. «. - -

Boston, Richardson «. -

Boston Belting Co., Chaffee

Bowen, Clark «. •

Boyer, Sturgis «.

Boyreau, Campbell v, -

Brewster v, Wakefield,

169
689
278
804
696
056
110
644
456
614
160
617
682
806
296
208
786

148
788
662
464
828
680
226
177

86
474
186
484
128
764
758
679
618
454
762
818
799
664
610
614
617
669
288
169
169
626
240
887
690

96
801

Britton v, Bamaby, - . . . 177

Brown et al. «. Huger, .... 126

Bryan, Reddall v. .... 740

Bugbee, Howard «. 768

Bulklev «. Naumkeag, &c., 699

BuUard, Castle «. 424

Bullitt, Ehnbro «. - • • - 818

Butler Co., Curtis «. - - - - 746

Cage's Ex'ra, Cassidy v. - - 480

Canfomia, Almyv. .... 644

Callan «. Statham, 682

Campbell «. Boyreau, .... 96

Card, Maguire «. 118

Carey, Perin «. 701

Carney, Tate «. 698

Cassidy, Cage's Ex'rs «. • • • 480

Castillero, U. 8. «. 498

Castle «. Bullard. 424

Castro «. Hendricks, .... 576

Castro, U. 8. «. 669

Chaffee «. B. B. Co., • - - 240

Chamberlain «. Ward, • • - - 211

Chamberlain, Ward «. - - - - 219

Chana, U. 8. «. 611

Chandler «. Von Boeder, - - • 688

Chapman, Roach «.-••• 294

Cheek, Overton «. 286

Chiappella, Wiseman v, - - - 466

Claflin, Lawler «. 289

Christ Church v. Co. of Phila., • 602

City Bank of Columbus, U. S. vf - - 180

Clark V. Bowen, 887

Clearwater «. Meredith, - • - - 201

Clements v. Warner, .... 696

Clev. Ins. Co. «. Reed, • • - - 686

Clifton f>. Sheldon, • - - • 429

Cloueh, Sturgis «. 188

Coe, Pennock v. 486

Coleman, yerden«. 886

Collins V. Thompson, • - - - 280

Combs «. Hodge, 116

Cone, Morrell «.--••- 268

Converse «. U. 8., - - - - 192

Conway, Hooper «. .... 462

Cordes, The Niagara v. - - 41

Co. of Phila., Christ Church «. - • 602

Cov. Draw Bridge Co. v. Shepherd, 88

Creighton, Fitch «.---- 696

Creighton, Green's Adm'rs v. - - 419

CucuUuv. Emmerling, . . . • 800

Curtis 9. Butler Co., - - - 746

Custard, Green «. 471

C, C. & C. R. R Co., Zabriskie t>. - 488

Caabs Rbportbd.

Dalton «. U. 8., - - -

Davenport, Poeter v, -

Davenport, Sinnotv.

Daviess Coontv, Aspinwall v.

Davidson «. Lanier,

Davilla v. Mumford, -

Day «. Washburn, -

Day«. Washburn,

De Cordova, Bheirbum «.

De Haro, U. 8. «.

Dennison, Com. of Kentucky v.

Den. McEwen v, -

Dermott«. Jones, •

Dibble, People v. -

Dicken's Lessee V. Mahana, •

Dill, Whitridge «.

Doe V. Wilson,

Dubuque & P. R. R. Co.

Easton «. Salisbuiy,
Eberly «. Moore, -
Edgerton, Phleps «. -
Egery, Foote «.
Egery, League «.
Emerson v. Blater,
EmmerUng, Cucullu «.
Emmerline, Kock t,
Enequiflt, Morewoodv.

V. Litchfield,

Fackler c. Ford,
Feam, U. 8. «. -
Fenn «. Holme,
Fenton, Adler «. -
Fisher, The Louisiana «.
Fitch «. Creighton,
Flowers v. Foreman,
Foley, Porter «. -
Foley, Porter «.
Foote «. Ecery, -
Ford, Fackler «.

Ford, Oelricks v, -
Ford V. Williams,
Foreman, Flowers v. -
Forsyth, Bal lance «.
Forsyth, Ballanoe «. •
Forsyth, Gregg v,
Forsyth, Kellogg «.
Forsyth, Keluy v. -
Forsyth, Meenan v,
Fossatt, U. 8. V,
Foster «. Davenport,
Frederickson «. La.,
Freeman t>. Howe,
French's Lessee «. Spencer,
Frost V. Frostburg Coal Co. ,
Fuentes «. U. 8.,

806

248
248
206
706
610
712
551
741
848
717
672
442
140
158
581
584
500

181
612
740
656
655
860
800
202
516

- 600
882

• 108
606

. 20
506

• 405
154

- 740
656

■ 600
584

- 86
405

. 788
148

- 731
654

■ 82
780

185,186

248

. 577

740

687

- 876

Green's Admr's «. Creighton,
Greenwav. Howland «. •
Greer v, Mezes,

- 264

770

- 205
221

. 81
888

. 556
412

- 762
552

- 882

Green «. dustard, 471

Gaines, Hale «.
Gaines «. Hennen,
Gaines, New Orleans «.
Galbraith, U. 8. v.
Gamble, Mason «. -
Garcia, TJ. 8. «. -
Georgia, Alabama «.
Goddard, Richardson «.
(Goldsmith, Berthold «.
Gk>mez, U. S. v. -
Gonzales v, U. 8., •
Gray, Wiggins «.

Gresg «. Forsyth, -
Gridiey v. Westbrook, -
Gridley t>. Wynant, -
Gue «. Tide Water Can. Co..

Hale «. Gaines
Hall «. Papin
Haney «. Bait. 8. P. Co. -
Hartwell. U. 8., «.
Hendricks. Castro v.
Heirs of Berreyesa, U. 8. v.
Hennen, Gaines «. •
Hewitt, Jeter «. -
Hillard, Benjamin «.
Hill «. 8mith,
Hodge, Combs «.
Hodge V. Williams,
Hoge, Union Ins. Co. «. -
Holcombe. Tracy v.
Holme, Fenn «.
Hooper v, Conway,
Hooper «. Scheimer,
Hopkins, U. 8. «.
Howard «. Bugbee,
Howe, Freeman v.
Howland «. Green way,
Huger, Brown «.
Humphreys, Leggett «. -
Huntingdon, Tesse «. -

' I.

Ihmsen, Martin «.----
Ins. Co. of Valley of Va. «. Mordecai -
Ins. Co. of Vallev of Va. e. Mordecai
Irvine v. Redfield, ....

James Gra^, The, «. John Fraser, The«
Jeflersonville, Bissell «. - - •
Jenckes, Livermore «. • - -
Jenkins «. Banning, ....
Jeter «. Hewitt. ....
John Fraser, The, «. James Gray, The,
Johnson, Nations «. ...

Jones. Dermott «. ....

Jones «. 8oulard, ....

Kane, Parker t>.

Kellogg 9, Forsyth, ....

Kelsey «. Forsyth,

Kendall v. Windsor, ....
Kentucky 9. Dennison, . . . .
Kilboume v. 8t. 8av'gs Inst, of 8t. Louis,
Kimbro «. Bullitt, ....

Knight «. 8chell,

Knox Co. V. Aspinwall,

Knox Co. «. Aspinwall,

Knox Co. V. Wallace,

Knox Ins. Co., Ogilvie v. - - -

Kock «. Emmerling, ....

lianier, Davidson v,
Larue, Mintum «.
Law, Rogers «.
Lawler «. Claflin,
Lawrason, Belcher v.

410
801
661
781
412
411
685

264
641
569
840
576
474
770
845
518
118
115
287

61
742
108
452
452
882
758
740
801
125

50
470

184

820

418

106
664
55
580
845
106
628
442
604

286

654
82
165
717
870
818
760
785
208
211
840
202

706
574
208
280
128

Cahbb Rbpobtbd.

▼ii

Lawson, Thomas «.

Lawrence «. Tucker,

Lea «. Polk Co. Copper Co.,

I^eRoy T. Tatham,

Linn, Belcher v,

Linn. Belcher «.

Litchfield. Dubuque & P. R. R. Co. v

Livermore v. Jenckea,

Lockett, Pemberton «.

Louisiana, The, «. Fisher,

Lownsdale v. Parrish,

La., Frederickson v,

Lueov. U. 8.,

Lytle «. Arkansas,

McCann, Smith «. -

McCarty «. Roots,

McDonald, Berthold «. • - -

McEwen ». Den, ... -

McOrew, Middleton «. - - -

McEinlay v. Morrish, -

McMickens' Ez'rs «. Perin, -

M. <&; I. R. R. Co., Pearce «. -

Mag. Tel. Co., West. Tel. Co. «.

Maguire v. Card, ....

Mahana, Dicken's Lessee «. •

Martin «. Ihmsen, . - . .

Martin «. Thomas,

Massey v. Papin, ....

Mason «. Gamble,

Maxwell v. Moore, ....

Mayer, Ac, v. White, &c., -

Mayor of Allegheny, Amey v.

Medberry v, Ohio,

Meehan «. Forsyth, . . . •

Meredith, Clearwater v.

Mezes, Greer «. ....

Middleton o. McGrew, -

Milner v. N. J. R. R. A. T. Co.

Milner v. N. P. R & F. Co.

Milwaukee, Richmond «.

Minn. & N. W. R. R. Co., Rice v.

Mintum v. Larue,

Montgomery V. Aiiderson,

Moore, Ebcrly «. -

Moore, Maxwell «. •

Moore «. Trans. Co.,

Mordecai, Ins. Co. of Valley of Va. «.

Mordecai, Ins. Co. of Valley of Vs. n.

Moorehouse v. Phelps,

Moorewood «. Enequist,

Morrill t. Cone, ....

Morrish, McKinlay v. -

Mumford, Davillaf.

Murphy, U. 8. «, -

Nations «. Johnson,

Kaumk^g, &c., Bulkley «.

Naylor, vlgel «.----

Neal, Bank of Pittsburgh, v.

Nelson «. Leland, ....

Nesbitt, Wheeler v. - - -

Newberry, Allen «. -

New Eng. Screw Co., Bliven v. -

New Eng. Screw Co., Bliven v.

New Orleans v. Gaines,

N. Y., Ac., Co., Union St Co. «. -

82
474
308
655

50
269
866
764
758
500

55
137

80
577
545
806

714
162
818
672
408
100
259
184
189
118
158
184
689
784
81
251
657
614
789
780
201
661
408
799
799
60
72
81
574
160
612
251
B74
94
829
140
516
258
100
619
470

628
599
646
828
269
765
110
510
514
295
699

N. Y. & E. R. R. Co., Winans v.

N. Y. tJ. Ransom,

N. Y. & B. Trans. Co. «. Phil., &c., Nav.

Co..

N. Y. & Liv. U. 8. M. Steamship Co. v,

Rumball,

N. J. R. R & T. Co.., Milner «. -
N. J. R. R. A T. Co., Bigelow «.
N. P. R. & F. Co., Milner «.
Niagara, The, «. Sexton,
Niagara, The, «. Cordee,
Noe, U. 8. «.

Norris, Adams v. - - •
Nye, U. S. «.

Oelricks V, Ford,
Ogden «. Parsons, * •
Ogilvie V. Knox Ins. Co.,
Ohio, Medberry «. - - -
Orient M. Ins. Co. «. Wright,
Orton, Smith «. - > -
Oslo, U. 8. «.
Oslo, U, S. «. -
Overton u. Cheek,

Pacheco, U. 8. «. •

Page, Pearce «. - - -

Page, Phillips «. - • •

Pumer t>. U. 8., -

Papin, Hall «. -

Papin, Massey «. -

Parker «. Kane,

Parrish, Lownsdale «. -

Parsons, Ogden v, - - -

Pearce v, M. & L R. R. Co.,

Pearce t. Page,

Pemberton v. Lockett, -

Penniman, West. Tel. Co. 9. -

Pennock «. Coe, -

Penn «. Ravenel,

People V. Dibble, -

Perin V. Cary, ....

Perin, McMlckens' Ex'rs 9. -

Phelps V. Edgerton, •

Phelps, Morehouse «. -

Pico, U. 8. «.

Phil., &c., Nav. C, N. Y. & B? Trans.

Co. t>. - - . _-
Phil, Wil. &Balt. R. Co.,% Phil. & H.

de G. 8. T. Co. -
PhiL,Wil. & Bait. R. R. Co. «. Quigley,
Phil. & H. de G. 8. T. Co. PhU. Wil. &

Bait. «.

Phillips «. Page,

Pico, u . 8. c.

Polk Co. Copper Co., Lea 9. -
Poorman t. Woodward,

Porter «. Foley,

Porter «. Foley, - - -
Powhatan St. Co. o. AppomatoxR.R. Co.

Pratt, U. 8. tJ.

Preston, Adams «.

Quick, Springlleld e. ■ ■ ■ ■
Quigley, PliU.,Wil. & Bait. R R. Co. «.

Ransom, N. Y. «.

Ravenel, Penn «. . . . -

68
515

897

144
799
799
799
41
41
462
589
185

584
410
849
789
524
104
467
462
286

886
628
689
609
641
784
286

80
410
184
628
187
191
486

88
149
701
259
749
140
857

897

488
78

483
689
464
208
151
154
740
682
470
278

256
78

515
88

▼Ill

CABB8 RBFOBTBD.

Reddall ©. Bryan, . - - -

Redfield, Irvine «. • - -

Reed, Clev. Ins. Co. «. -

Refold «. Woodfolk, -

Rey 9, Simpson, - - - -

Rice V. Minn. & N. W. R. R. Co.,

Itichardson et al. v, Boston et al., •

Richardson «. Goddard,

Richmond et aL «. Milwaukee et al.,

Richmond «. Milwaukee,

Roach V. Chapman, ....

Roberts, Thompson «. •

Roe, Thompson «.-•••

Rogers v. Law, ....

Roots, McCarty «.-•--

Rose, U. S. t>.

RumbalL, N. Y. & Liv. U. S. M. Steamshi
Co.

Salisbury, Easton «. ....
Sampson et al. v. Welsh el al.,
Scheimer, Hooper «. ...
Schell, Eniffht «. ...

Sexton, & The Niagara «.
Sheirbum «. De Cordova,
Sheldon, Clifton «.---•
Shepherd. Cot. Draw Bridge Co. «.
Sherwood, Bondies «. • - •
Sickles, Wash. Alex., &c., Co. «.
Silsbee, v, Barreda,
Simpson. Rey «. -
Sinnot «. Davenport,
Slater, Emerson v. - - -
Smith V. McCann, ....
Smith, Hill «.----
Smith V, Orton, ...

Smith, Walker «. ...

Soulard, Jones «.-••.
Spencer, French's Lessee v. •
Springfield «. Quick,
St. Savg's Inst, of St Louis, Kilboume
Statham, Callan v. ...

Sturgis «. Boyer,

Sturgis V. Clough, ....
Sun M Ins. Co. v. Wright,

Sutter, V,S.v.

Sutton V. Bancroft,
Suydam «. WilMamson, •

« T.

Tatev. Carney,
Tatham, Le Royo.
Tesse «. Huntingdon,
Teschmaker, U. S. v. -
Thomas v. Lawson,
Thomas, Martin «.
Thompson, Collins o.
Thompson «. Roberts, •
Thompson «. Roe, -
Thompson, Ward «.
Tide Water Can. Co, Guet>.
Tracy v, Holcombe,
Trans. Co, Moore «.
Tucker, Lawrence «.

Union Ins. Co. «. Hqge,
Union St. S. Co. «. K Y. &c
U. S. o.^Addison,
U. S. tJ. Alviso,
U. S. D. Basset,
U. S. V, Bennitz,

740
418
686
870
260
81
626
412
60
72
294
648
887
208
162
448

144

181
682
462
760

4i
741
429

88
288
650

86
260
243
860
714
118
104
228
604

97
256
370
582
591
188
529
119
454
742

U. S. V. Bolton, 569

U. S. «. Booth, 169

U. S. «. Castillero, - - - - 498

U. S. V. Castro. 659

U. S. «. Chana, 611

U. S. V. City Bank of Columbus, • - 180

U. S., Converse «. . . - -• 193

U. S., Dalton v. 895

U. S. f>, De Haro, - • • - 348

U. 8. «. Feam, 882

U. 8. V. Fossatt, • - 185, 186

U. S. Fuentes v. .... 375

U. S. 9, Galbraith, 821

U. S. V, Garcia. 338

U. S. «. Qomez, 552

U. S., Gonzales «. • • - - 332

U. S. V. Hartwell, 340

U. S. 9. Heirs of Berreyesa, 474

U. S. V, Hopkins, 382

U. S., Luco e. 545

U. S. «. Muiphy, 470

U. S. c. Noe, 426

U. 8. V, Nye, 185

U. 8. «. Osio, 426

U. S. «. Osio, ... .457

U. 8. f>. Pacheoo, - - - - 886

U. 8., Palmer «. 609

U. 8. f>. Pico, 357

U. 8. «. Pratt, 470

U. 8. «. Pico, 464

U. 8. D. Rose, 448

U. 8. V. Sutter, 119

U. 8. «. Teschmaker, - - . - 353

U. 8. 9. Vallejo, 359

U. 8. «. Walker, 382

U. S. «. West, 317

U. 8. «. White, 560

U. 8. V, Yontz, 473

U. 8. V. Yturbide, 342

Vallejo, U. 8. «. - - - 359

Vallette, W. Water Valley Canal Co, «. - 154

Von Roeder, Chandler v. - - - 633

Verden «. Coleman, .... 330

Vt. & Mass. R R. Co., White v, 221

Verv «. Watkins, - - 522

Vicksburg, Bell v. - - - 579
Vigel «. Naylor, ... .646

Wakefield, Brewster v. - • - 301

Walker «. Smith, - - - • 228

Walker. U. 8. «. 382

Wallace, Knox Co. «. • • • 211

Ward e. Chamberlain, • 219

Ward, Chamberlain v. - - 211

Ward «. Thompson, • - - - 249

Warner, Clements «. .... 695

Washburn, Day «. - . . - 712

Washburn, Day «. 551

Wash. Alex., &c,, Co. «. Sickles, 650

Watkins, Very v, 522

Welsh, Sampson «. .... $82

Westbrook, Gridlev «. - - - • 412

West. Tel. Co. «. Mag. Tel. Co., 189

West. Tel. Co. «. Penniman. - 191

West, U. 8. «. 817

Wheeler v, Nesbitt, .... 765

White, U. 8. «. 560

White f>, Wright. .... 279

White, &c., Mayer, Ac., «. - 657

Ca8B8 Rbfortbd.

W. Wat«r Valley Canal Co. c. Vallette, - 154

White «. Vt & Mass. R R. Co., ^1

Whitridge tt. Dill. .... 581

Wiggins «. Gray, - - - • 688

WifiSuns. FoPdfo. 86

Williams, Hodge «.--•- 287
Williamson, Suydam «. • -742

Wilson, Doe v. 584

Winans v, K Y. & E. R. R. Co.. - 68

Winsor, Kendall «.--•- 165

Wiseman v. Chiappella, - • • • 466

Woodfolk, Redfleld «. ... 870

Woodward, Poorman v. •
Wright, Orient M. Ins. Co. «.
Wright, San M. Ins. Co. «.
Wright, White v.
Wynant, Gridley v.

Yontz fj. U. 8.
Yturbride «. U. 8.

Zabriskle v. C. C. & C. R. R. Co.

151
524
52»
27»
411

472
842

48a

CITATIONS

IN OPINIONS OP THE JUDGES CONTAINED IN THIS BOOK.

CASBS CITED.

AbBton «. AbetOQ, 14 La. Ann. 187 784

Adams, The, Edw. AdoL 810 894

Adams v. Law, 16 How. 148 518

Addison «. N. Orleans Sav. Bk., 15 La.

PJ27 409

Alder «.* keighley/l5'MV A W. in! \V.\ 522

Aldridge «. Williams, 8 How. 28 886

Alexander 9. Stokely, 7 Berg. & B. 800. 648
Alexander v. Duke of Wellington, 2 Buss.

&Myl. 85 604

Alger «. Scoville, 1 Gray, 891 865

Allegheny Go. «. Lecky, 6 Berg. & B. 166 749
Allen V, Merchants' Bk. N. Y, 22 Wend.

224 589

Allen «. Newberry, 21 How. 244 118

Amer. Fur. Co. t. U. 8.. 2 Pet. 358, 864.

92,255

Ames t>. Drew. 11 Post. 475 117

Andrews v. Pond. 18 Pet. 65 828

Andrews «. Bussell, 7 Blackf . 474 158

Androscoggin Bk. f. Kimball, 10 Cush.

878 329

Ail^er 9. ^gier, Finch. Pre. Ch. 496. . 229

Anon., 3 Leon. 48 783

Anonymous. 1 HUl (8. C), 259 488

Arguello 9. U. 8., 18 How. 539. .610, 668, 745

Armstrong «. Toler, 11 Wheat. 258 317

Armstrongs. Treas. Athens Co., 16 Pet.

281

Aspden «. Nixon, 4 How. 467 658

Atkins V, Owen, 4 Ad. & £11. 819 153

Atkinson f. Bitchie, 10 East., 580 394

Attorney-Ghen. «. Comthwaite, 2 Cox, Ch.

844 428

Attomey-Gkn. v. Jolly, 1 Bich. (Law.)

176; 1 Bich. Eq. (8. C.) 99 (note), ... 710
Attomey-Gkn. «. Earl of LonsdaJe, 1 Sim.

105 ; 711

Attorney Gen. v. Stewart, 2 Mer. 143. . . 709

Aylett «. Ashton, 1 Mylne «& C. 105 375

Badon «. Bahan, 4 Ann. (La.) 468 185

Bagley «. Snelham, 1 Sun. & Stu. 78 783

Bf^ell «. Broderick, 18 Pet. 436-450. . .

201,205,269,381

Baker ». Wheeler, 8 Wend. 505 817

Baldwin c. Ely, 9 How. 580 117

Baldwin t?. Peet, 22 Tex. 708 684

Ballance «. Forsyth, 18 How. 19 781

Balmanno o. Lumley, 1 Ves. & B. 224. . . 875

Bancroft «. Hall, Holt. (N. P.) 476 469

Bancroft 9. Paine, 15 Ala. 834 580

Bk. of Augusta 9. Earle, 18 Pet. 519 185

Bk. of Ky. c. Wister, 2 Pet. 318 223

Bk. of Ey. 9. Wistar, 8 Pet. 481 82

Bk. of Louisiana «. Ford, 9 La. Ann. 299 348

Bk. of Tennessee «. Horn, 17 How. 157. . 428

Bk. of U. 8. «. Beverly, 1 How. 184 291

Bk. of U. S. «. Chapin, 9 Wend. 471 ... . 808

Bk. of U. 8., «. Deveaux. 5 Cranch. 61 . 77

Bk. of U. 8. V. Dunn, 6 Pet. 51 188

Bk. of U. 8. «. Huth, 4 B. Mon. 428 158

Baptist Ajbso. t. Hart, 4 Wheat, 1 710

Barbarie «. Eslava. 9 How. 421 821, 694

Bargate 9. Shortridge, 5 H. L. C. 297 497

Barnard r>. Ashley, 18 How. 48 810

Barry «. Merchants' Ex. Co.,1 Sandf. Ch.

280 158

Bartlett «. Kane, 16 HqwV272. 757

Bartlett «. Pentland, 10 Barn. A; Cress. 760 153

Bartholomew «. Carter, 3 Man. & G. 125 614

Batavier, The, 40 Eng. L. & Eq. 25 701

Bates 0. Conkling, 10 Wend. 889 428

Bates D. Barber, 4 Cush. 107 488

Baubien v, Stoney, Spears, Ch., 508 521

Baverstock «. Boffe, 8 Adol. & EU. 652. 80

Beall c. Fox, 4Ga. 404 710

Beauregard «. New Orleans, 18 How. 497

290 745

Beers d. Phcenix Glass Co., 14 Barb. 858. ' 158

Bein v Heath, 6 How. 228 228

Beman v. Bufford, 1 81m. (N. 8.) 550. . . . 496

Bennett f. ButterworUi, 11 How. 669

200, 201, 472

Bingham v. Cabot, 3 Dall. 882 78

Birdeback v. Wilkins, 10 Harr. 26 117

Bird V. Jones. 5 La. Ann. 648 409

Birkenhead, The, 8 W. Bob. 75 81

Bissell V, Haynes. 9 Tex. 556 656

BlBsell f>. Penrose. 8 How. 817. 387 148, 735

Blackett «. Assurance Co., 2 Cr. & J. 249, 588
Bladwellv. Edwards, Cro. Eliz. 509; Noy

85 782

Blair v. Davis, cited 7 East., 470 448

Blair v. Pathklller, 2 Yerg. 414 586

Blanchard 9. Cawthom. 4 Simons, 566. . . 41

Blood «. Goodrich, 9 Wend. 68 366

Bloomer McQuewan, 14 How. 549 242

Bluck «. Colnaghe, 9 Sim. 411 291

Ely the «. Easterling, 20 Tex. 565 404

Bobinett o. Verdun. 14 La. 542 794

Boileau v. Butlin, 2 Exch 665 116

Bonafee t. Williams. 8 How. 574 228

Bond f>. Pittard, 8 Mees. & W. 857 765

Bonne v. Powers, 8 Martin (N. 8.). 458. . 548

Boston, City of v. Lecraw, 627

Boswell «. Otis. 9 How. 850 631

Bosworth «. Swansey, 10 Mete. 863 436

Boteler «. State (Md.). 8 Gill & J. 881 . . . 658

Bowmer «. Hicks, 22 Tex. 161 628

Boyce o. Grundy, 3 Pet. 210 229

CiTATIONB.

Boyd «. Moyle. % Com. B. 644 52t

Boyle «. Zacharie, 6 Pet. 648 288

Bnnch Bk. at Decatur v. Hodges, 17 Ala.

42 470

Bristol. Mayor of, v. Whitton, Duke 81 ;

877 708

BroDSon v. Einzie, 1 How. 8L1 754

Brooks V. Brooks. Finch. Pre. Ch. 24. . . . 229

Brotherton v. Livingston, 8 Watts. 384. . 428

Brown v, Howard, 14 Johns 122 427, 428

Brown «. Maryland, 12 Wheat. 419,448.

247. 646
Bryan v, Forsyth, 19 How. 834, 386. .. .

648, 781, 788

Bucklin v. State of Ohio. 20 Ohio, 18. . . . 488

Burbank v. Beach, 15 Barb. 826 470

Burt ». Stcmburgh. 4 Ctow. 568 779

BurweU «. Jackson. 9 N. T. 585 875

Campbell «. Mackay, 7 Sim. 564; 1 Mylne

iC. 608 599

Cannel v. Buckle, 2 P. Wms. 248 229

Caron v. 3Iowatt. 2 Edw. Ch. 57 424

C^penter «. WaU. 11 Ad. & E. 808 488

Carr «. Le Fevre, 27 Penn. St. 418 228

Cary v, HotaUing, 1 HUl. 816 429

Cass V. DiUon, 2 Ohio St. 607 497

Castling «. Aubert, 2 East. 825 865

Castle «. Bullard. 28 How. 187 647, 648

Castro V. Castro, 6 Cal. 158 548

Catharine, The. v. Dickinson, 17How. 170 110

Catlett V. Brodee. 9 Wheat. 555 518

Cayusa Bk. «. Hunt, 2 Hill. 685 470

Chamberlain v. Ward. 21 How. 548-570.

220, 899. 568

Chancellor «. Milton, 1 B. Mon. 25 648

Chapm V. The Vt. & Mass. R. R. Co., 8

Gray, 575 228

Chapman v. Mad. Riv. <& L. E. R. R Co..

6 Ohio. St. 119 496, 497

Chapman v. Weimer, 4 Ohio, 481 442

Charles Riv. Bridge «. Warren B'g, 11

Pet. 426,509 576

Charnley f>. Grundy. 25 Eng. L. & Eq. 818 117

Chew. V. Read. 11 Sm. & M. 182 470

Chichester v. Donegal. 1 Addam's Eccl. 5 280

Child V, Chamberlain, 6 C. & P. 218 428

Chifiholm v. State of Georgia. 2 Dall. 419 725

Chouteau v. Eckhart. 2 How. 345. 872. . . 810

Chouteaux v. Leech, 18 Pa. St. 288 48

Christ Hospital v. Grainger, 1 Macn. & G.

460 708

Church «. Chambers, 8 Dana. 278 560

Clapp V, Bromagham. 9 Cow. 530 291

Clark V. Barnwell, 12 How. 272 48

Clark V. Clark, 6 Watte & S. 85 281

Clark V. Matthewson, 12 Pet. 164, 170. .682, 752

Clark V. Smith, 18 Pet. 208. 598

Clarke, Succession of, 11 La. Ann. 124. . 786

Clarke «. Davenport, 1 Bosw. 96 744

CUu>ke t>. Van Surlay, 15 Wend. 486. .. . 744
Clendenning v. Clendenning. 8 Mart. N.

S. 588 784

Clerk V, Russel. 8 Dall. 415 865

Cloesman «. Barbancey, 2 Rob. 348 278

Clontier v. Lecomte, 8 Mart. La. 481 779

Cochran v. Van Surlav. 20 Wend. 865. . . 744

Cocke 9. McGinnis, M. & Terg. 865 99

Cockrell v. McQuinn, 4 Mon. 62 180

Coglar t>. Coglar, 1 Ves.. Jr., 94 229

Cohens «. Virginia, 6 Wheat. 410 632

Colman v. Eastern Counties Ry. Co., 10

Beav. 1 185

Coleman «, Riches. 29 Eng. L. & Eq. 823. 602

Coles «. Coles, 15 Johns. 160 817

Columbian Ins. Co. «. Wheelright, 7

Wheat. 584 806

Comefliys o. Vasse. 1 (Pet. 198 609

Com.£ R.R.Bk.of Vicksburg v. Slocomb.

14 Pet. 65 202

Commer. & R R. Bk. Vicksburg v. Slo-
comb, 14 Pet. 60 580

Commonwealth v. Bird, 12 Mass. 443 604

Commonwealth v. Moore, 8 Pick. 196. . . 488
Company of Carpenters v. Hayward, 1

Doug. 885 634

Conard c. Atl. Ins. Co.. 1 Pet. 886 770

Conard v, Atlantic Ins. Co., 1 Pet. 448. . 479

Cook 9. Doremus, 10 La. Ann. 682 779

Coombs «. Lane, 4 Ohio St. 112 160

Coopers. LampterTownship.8 Watts.128. 749

Cooper «. Lawson, 8 Adol. & Ell. 746. . . 80

Comet t>. Winton. 2 Yerg. 147 586

Coetar «. Brush. 25 Wend. 631 576

Cotton t>. Butler. 2 Strange, 1087 470

Cottrell V. Conklin, 4 Duer, 45 117

Course «. Stead, 4 Dall. 22 72

Cousin V. Blanc Ex'rs. 19 How. 202 694

Coulter «. Cresswell. 7 La. Ann. 867 409

Covington Drawbridge Co. «. Shepherd.

21 How. 112 157

Craft «. Boite, 1 Saund. 242 80

Craig t>. Ohio. 5 Ohio K S.605 488

Craig V, Vicksburg, 81 Miss. 216 228

Crane «. Morris. 6 Pet. 609 427

Crawford 9. Hunter, 8 Term. 16 (note). . . 582

Cross V. Hepner, 7 Ind. 859 157

Crosse «. Smith, 1 Maule. & S. 345 469

Cullum V. Branch Bk. of Ala. , 4 Ala. 21 . 875

Cummings v, Arnold, 8 Met. 489 365

Cunningham v. Ashley. 14 How. 877 810

Curling «. Chalklen, 8 M. & S. 502 521

Curd f>, Wunder, 5 Ohio St. 92 442

Cutler tJ. Powell, 6 Term, 820 448

Dale V. The Govenor. 3 Stew. 387 604

Dan t». Brown, 4 Cow. 483 778

Dana v. Bk. of U. S., 5 W. & S. 228. . . . 158

Danbury v. Lockburn, 1 Mer. 626 255

Dartmouth Coll. v. Woodward, 4 Wheat.

627 800

Davis «. Braden, lO Pet. 288. 689

Davis V. Living, Holt (N. P.), 275 428

Davis t>. Wood, 1 Wheat. 6 647

Davison v, Robertson, 3 Dow. P. C. 228. 829

Davy «. Hallett, 3 Caines, 16 832

Dawson «. Dawson, 7 Ves. 178 229

Day «. The State, 13 Mo. 422 483

Day t>. Woodworth, 18 How. 871,872.482,770

Deacon v. Oliver, 14 How. 610 658

Delafleld v. Illinois, 2 Hill, N. Y. 177. . . 228

Delassus v. U. S.. 9 Pet. 117 881

Delavigne e. Gainnie. 11 Rob. 171 278

Denny v. Cabot, 6 Mete. 90 765

Denton v. Denton, 1 Johns. Ch. 864 281

De Vilemont v. U. S., 13 How. 261 464

DeWolf V, Rabund, 1 Pet. 497 427

Dickinson v. Valpy, 10 Barn. & C. 188. . 317

Dodge V. Woolsey . 18 How. 331 496

(Doe) Willis v. Martin, 4 Term. 89 255

Doe, or Shewen, v. Wroot, 5 East, 132. . . 199

Xll

CXTATIOMS.

Dorr 9. Pacific Ins. Ck>., 7 Wheat. 610. . . 882

Dos Hermanos, The, 10 Wheat 811 618

Douville V, SuD. Mut. Ins. Co. N. Y., 12

La. Ann. 250 629

Dovaston v. Payne, 2 Smith's Lead. Ca.

226 609

Downes u. Church, 18 Pet. 207 828

Drew V. Drew, 8 Fost. 489 292

DriggB V. Morgan, 10 Rob. (La.) 120 185

Duncan «. Manchester Water Worlu, 8

Price. 65)7 167

Dundas «. Dubins, 1 Yes., Jr., 196 284

Dunnv. Clarke, 8 Pet. 1 752

Dunn «. Com. Bk. of Buffalo, 11 Barb. 580 117

Dunn «. Kinney, 11 Rob. 249. 250 185

Duplessis V. White, 6 La. Ann. 514 794

Dupuy, Succession of, 4 La. Ann. 570. . . 785

Dutton 9. Woodman. 9 Cush, 255 653

Dwight «. Simon, 4 La. Ann. 492 278

East Ang. Ry. Co. «. Eastern Co. Ry. Co.,

11 CC B. 808; 78 Eng. C. L 185

Eastman v. Cooper, 15 Pick. 276 654

East'n Co.'s Ry. Co. v. Brown, 6 Ezch. 814 76
E. Carver Co. v. Manuf. Ins. Co., 6 Gray,

214 527,581

Edwards «. Davis, 3 Tex. 821 ; 10 Tex. 816 656

Egerton v. Creditors, 2 Rob. 201 279

Elliott V, Gurr, 2 Phillim. 16 786

Elliott V. Roesell, 10 Johns. 7 48

Ellis V. Lafone, 18 Eng. L. & Eq. 561 . . . 602

Elmore «. Grymes, 1 Pet. 469 427

Emmet v. Dewhirst, 8 Eng. L. & Eq. 88. 865

Enthoven «. Hoyle. 9 Eng. L. & Eq. 434 228
Entwisle v. Ellis, 2 Hurlst. & Nor.549. .627, 628
Etting «. B'k of U. S.. 11 Wheat. 69, 75.76, 98

Europa., The, 2 Eng. L. & Eq. 564 701

Evans«. Gee,ll Pet.80 776

Evans e. Percifull. 5 Ark. 425 86

Everhart t?. Phil. & W. C. R. R. Co., 28

Pa.St.340 496

Express, The, 1 Blatchf. 865 595

* F.

Fanning v. Gregoire, 16 How. 524 576

Farley «. Cleveland, 4 Pow. 482 865

Farmer t>. Darling, 4 Burr. 1974 769

Famum «. Towle, 12 Mass. 89 417

Fector v. Philpott. 12 Price. 197 157

Fellows V, Blacksmith. 19 How. 866 151

Fenn v. Holme, 21 How. 481, 482 454, 742

Field V. Mayor of N. Y., 6 N. Y. 179 . . . . 442

FljTgins ff. Willie, 2 W. Black. 1186 418

Fuinie 9. Glasgow^ S. W. R. Co. , 84 Eng.

L.&Eq. 14 76

Fisher's Negroes «. Dabbs, 6 Yerg. 119. . 648

Fitch «. Jones, 5 Ell. & Bl. 245 211

Fitzherbert v. Mather, 1 Term. 16 829

Fleckner v, Bk. of U. S., 8 Wheat. 888. . 188

Fleming v. Gilbert, 8 Johns. 528 865

Ford f>. Ford. 7 Humphr. 92 488

Forgay c Conrad. 6 Efow. 201 804

Fo^ay V. Ferguson, 2 Den. 617-619 769

Foss9. Harbottle. 2 Hare. 461 497

Foster v. Ramsey, 2 Sid. 149 783

Fouvergne v. Ciij of N. O., 18 How. 471 278

Fowler t>. Brantly. 14 Pet. 318 328

Fowler 9. Shearer, 7 Mass. 14 544

Frazier •. Willcox. 4 Rob. 517 158

Freeman, The, v, Buckingham, 18 How.

189 602

Fremont V. U. 8., 17How. 542, 560.382, 464, 661

French v. Bankhead, 11 Gratt. 136 130

French v. Spencer, 21 How. 288 258

Fripp «. Chard Ry. Co., 21 Eng. L. & Eq.

53 157

Frye v. Bank of Illinois, 11 III. 367 483

Fuentes v, U. 8., 22 How. 443 661

Gahn v, Niemcewicz, 11 Wend. 312 621

Gaines c. Chew, 2 How. 619-651 278. 774

Gaines v. Chew, 12 How. 593 786, 793

Gaines v. Relf, 15 Pet. 9 233

Gaines «. Relf, 12 How. 4^^-598

774, 776, 777, 788, 796

Galloway t>. Finley, 12 Pet. 264 253, 375

Qantly v. Ewing, 3 How. 716 754

Gardner v. Buckbee, 3 Cow. 120 658

Garland u.Wynn, 20 How. 8 310, 320

Gass V. Simpson, 2 Sumn. 610 488

Gazelle, The, 1 Wm. Rob. 471 899

Genesee Chief, The,f. Fitzhugh, 12 How.

443 Ill, 112, 149. 879, 461. 468, 564

Gen. Smith, The. 4 Wheat. 439 118

Genet «. Wood, 3 Wend. 27 779

Georgia v. Brailsford, 2Dall., 402; 8 Dail.

1 ^ 725

Georgia v, Madrazo, l Pet. 110 726

Gether v. Capper, 80 Eng. C. L. 696 91

Gibbons v. Ogden, 9 Wheat. 194 Ill, 11&

Gibbons v, Ogden. 9 Wheat. 210. .. .246, 247
Gibson v. McCall, 1 Rich. (S. C.) Law.

174 710

Gilbert v. Faules, 2 Freem. Ch. Eng. 158 291

Gilbert v. Sheldon, 13 Barb. 623 488

GUchrUt V. McKee, 4 Watts. 880 488

Gildart v. Gladstone. 12 East, 638 50$^

Gill «. Oliver, 11 How. 529 65a

Glyn V. Baker. 18 East, 509 117

Golding v, Crowle, Saver, 1 769

Gooding «. Oliver, 17 How. 274: . . .658, 659

Goodman v. Simonds, 20 How. 361 828

Goodtitle v. Jones, 7 Term. 49 199

Gordon v. Gordon, 1 Mer. 141 788

Goes V, Nugent, 5 Bam. & Ad. 65 865

Governor, The, Abb. Adm. 110 588

Grace v. Smith, 2 W. Black, 998 764

Grant «. Norway, 2 Eng, L. & Eq. 837. . 602
Graves «. McCaU,l Calrs R (Va;) 364. . . 54

Gray, Caseof, Dyer, 318 788

Gray «. Monongahela N. Co., 2 Watts &

S. 116 496

Grayson «. Yirginia, 8 Dall. 820 725

Great Western R Co. v, Rushout, 5 De

Gex. &S. 290 496

Greely «. Burgess, 18 How. 418 758

Greely v, Thompson. 10 How. 228 758

Green 9. Biddle, 8 Wheat. 1 448

Green 9. Eopker, 36 Eng. L. & Eq. 396. . 6S9
Green v, Tunstall, 5 How. (Miss.) 688. . . 424
Greensladev. Dower, 7 Bam. & C. 685. . 817

Greggv. Wyman, 4Cu8h. 322 430

Griffith V, Bogert. 18 How. 162 891

Griffin v. Graham. 1 Hawks (N. C.) 130 708

Grignon v. Astor. 2 How. 819 290--631

Grimes v. Norris, 6 Cal. 621 548

Gue v.Tide Water Can. Co., 24 How. 257 752

Guesnon v. Creditors. 7 Rob. 382 278

Guild «. Frontin, 18 How. 185 88. 96

Citations.

xiii

Hadley v. Baxendale, 9 Kxch. 841 5^

HAffey V. Hafley, 14 Yes. 261 229

Hall V. Combes, Cro. Eliz. »68 292

HaUett V. Collins, 10 How. 174 282

Ballet V, Desban, 14 La. Ann. 685 765

Hammond v. Inloea, 4 Md. 18&-178 716

Handly «. Anthony, 5 Wheat. 879 560

Hanes v. Peck, Mart. & Yerg. 236 795

Hargrave v. LeBreton, 4 Burr. 242 80

Harmon «. Kingston, 8 Camp. 150 582

Harris v. Clarissa, 6 Yerg. 248 648

Harris «. Hardeman, 14 How. 889 682

Harrison v. Guest, 85 Eng. L. & £q. 487 157

Harrison «. Jackson, 7 Term, 207 816

Harteau v. Harteau, 14 Pick. 181 230

Harvey «. Grabham, 5 Ad. & E. 61 . . . . 865

Hasbrouck v. Tappen, 15 Johns. 200 865

Hawken v. Bourne. 8 Mees. & W. 710. . . 816

Hawkes v. Phillips, 7 Grey, 284 264

Head v. Providence Ins. Co., 2 Cranch,

127 185

Headley «. Bainbridge, 8 Q. B. 817 317

Henderson 9. Kenner, 1 Pick. 474 654

Henderson v, Tennessee, 10 How. 823. . . 269

Hendricks v. Robinson, 2 Johns. Ch. 283 714
Hibblewhite v. McMorine, 6 Mees. & W.

200 223

Higgins V. Senior. 8 Mees & W. 843. ... 38

HUl €. Smith, 21 How. 288 202

HUlam, Case of, Duke, 80-375 708

Hine«. Allely, 4 B. & Ad. 624 469

Hines v. Papin, not rept'd 237

Hogan V, Walker, 14 How. 29 428

Holdsworth v. Hunter, 10 Barn. & Cres.

449 828

Holllman «. Peebles, 1 Tex. 678 404

Hollings worth v. Barbour, 4 Pet. 475 682

Holroyd «. Humphrey 18 How. 69 85

Hopkins V. Lee. 6 Wheat. 109 779

Homer v, Keppel, 10 Adol. & Ell. 17 614

Homsby v. Bacon, 20 Tex. 556 404

Hospital 9. Philadelphia Co., 24 Pa. St.

12 Harris, 282 604

Househill Co. e. Neilson, 1 Webs. Pat. C.

088 868

Houseman «. The North Car, 15 Pet. 49. 104

Housten t. Perry, 2 Tex. 87 628

Houston V, Newland, 7 Gill & J. 493. . . 717

Houston V. Robertson, 2 Tex. 1 . 623

Horenden v. Annesley, 2 Sch. & Lef . 607 488

Hoyt, exparte,\H Pet. 279 305

Hoyt 9. Thompson, 5 N. Y. 820; 3 Saund.

416 138

Hoyt V. U. 8., 10 How. 141 198

Hubbell 9. Inkstein, 7 La. Ann.252. . .784, 785
Hugg 9. Augusta Ins. & B. Co., 7 How.

595 882

Hughes 9. Alexander. 5 Duer, 488 654

Hughes 9. Howard, 3 Harr. & J. 9 654

Hull 9 Heightman. 2 East. 145 448

Hume 9. Scott, 3 A. K. Marsh. 262 483

Humphry s v. Leggett, 9 How. 313 52, 53

Hunt 9. Adams, 6 Mass. 521 690

Hunt 9. Wickliffe, 2 Pet. 214 fi82

Hutchins v. Hulchins, 7 Hill, 104 698

lasagi 9. Brown, 17 How., 183 93

Illinois 9. Delafleld, 8 Paige, Ch. 527. .. . 223

Ins. Co. of Va. 9. Mordecai. 21 How. 195 154

Irving 9. MoUy, 7 Bing. 543 428

Jackson 9. Chew, 12 Wheat. 162 745

Jackson 9. Louw, 12 Johns. 255 130

Jackson 9. The Magnolia, 20 How. 296. . 278

Jackson v. Moore, 6 Cow. 706 292

Jacobs 9. Bogart, 7 Rob. 162 278

Jackson 9. Lewis, 18 Johns. 504 488

James Watt, The, 2 W. Rob. 271 81, 399

Janney 9. Col. Ins. Co., 10 Wheat. 418. . 332
James Gray, The v. The John Praser. 21

How. 185, 194 595, 701

Jewell 9. Parr, 18Com. B. 909 684

Jewell 9. Schroeppel, 4 Cow. 564 448

Jobert 9. Pitot, 4 La. Ann. 805 7«6

Johnston 9. Beard, 7 Sm. & M. 214 580

Johnston 9. Dutton. 27 Ala. 245 317

Johnston 9. M'Intosh, 8 Wheat. 608 586

Johnston 9. Smith, 21 Tex. 722 628

Johnston 9. Sutton, 1 Term Rep. 544. . . 769

Jones 9. Borden, 5 Tex. 410 656

Jones 9. The Slate, 18 Tex. 168 483

Jones 9. Williams, 2 Amb. 651 711

Juliet Erskme, The, 6 Notes of Cas. 684 701

Jung 9. Doriooourt, 4 La. 178 794

Kane 9. Bloodgood. 7 Johns. Ch 90 488

Kane v. Parker 4 Wis. 128 290

Kelsey 9. Forsyth 20 How. 85 96

Kelsey v. Murphy, 26 Pa. St. 78 698

Kendall 9. Stokes, 8 How. 100 726

Kendall v. U. 8., 12 Pet. 524. 615. . . .305. 726

Kennell 9. Abbott, 4 Ves., Jr., 802 783

Kewley 9. Ryan, 2 H. Black. 343 532

Kilpatrick 9. Lisneros, 28 Tex. 118 623

Kimmel 9. Kimmel. d S. & R. 888 483

King 9. Inhab. of Cheadle, 8 Bam. & Ad.

888 94

King 9. Shepherd. 8 Story. 858 47, 48

Kirk V. Bell, 16 Q. B. (71 Eng. C. L.) 290 183
Kissell 9. St. Louis Public Schools, 18

How. 19 608. 609

Knox Co. Com. 9. Aspinwall, 21 How.

539, 544 671,738

Knox Co. 9. Wallace, 21 How. 546 618

Krider 9. Lafferty. 1 Whart. 814 94

Lafayette City 9. Cox, 5 Ind. 88 668

Lamaster 9. Lair, 1 Dana, 109 779

Lamb 9. Stone. 11 Pick. 527 698

Lambert 9. Lambert. 2 Bro. P. C. 26 234

Landes 9. Brant. 10 How. 348-375 100

143, 205. 20S. 320, 321. 473, 7:35.

Landry 9. Garnet, 1 Rob. (La), 862 409

Lane 9. Williams, 2 Vern. 277 316

Laugher 9. Pointer, 5 Bam. & C. . 547. . . 595

Langhom 9. Cologan, 4 Taunt.. 830 527

Langton 9. Horton, 1 Hare, Ch. 549 441

Lawrence 9. Caswell, 18 How. 488 758

Lawrence 9. Hunt, 10 Wend. 82 650

Lawrence 9. Mintum, 17 How. 100. .. . 101
LcPage 9. New Orleans Gas Light Co., 7

Rob. (La.), 188 409

Leeds 9. Cameron, 3 Sumn., 492 479

League 9. E^ry. 24 How. 264 745

Lee, Succession of, 4 La. Ann. 578, 579. . 776

Leeds 9. Cameron, 3 Sumn. 492 479

Lefebvre9. DeMontilly, 1 La, Ann., 42.. 779

Lennard 9. Robinson, 5 Ellis & B. 125. . 539

Leonard v. Vredcnburg, 8 Johns. 39. . . 8K5
LeRoy r. Tatham, 14 How. 156 .387, 868. 369

Les Bois v. Bramcll, 4 How. 449 821

xiv

ClTATIONB.

Leflsieur v. Price, 12 How. 50 269

Lestrade v, Perrera, 6 La. Ann. 898 298

Levistones v. Landreauz, 6 La. Ann. 26. 298

Lewis t.Whillon, Noy. 85 80

Lexington, The, 6 How., 284 681

License Cases, 5 How. 578 247

Life & Fire Ins. Co. v, Wilson. 8 Pet. 294 805

Lingen. (^ of. j j^«. ^„K»)= } . 788

Linsley «. Lovely, 26 Vt 187 518

Livingston t. Story. 9 Pet. 682 229, 428

LochUbo, The, 8 W. Rob. 818 701

(Loe)Locke v. Franklin, 7 Taunt. 9 655

Logan V. Patrick, 5 Cranch, 288 752

Loni V, €k>T. & Co. of Copper Miners, 2

Phil. Ch.740 497

Lord 9. Veazie. 8 How. 258, n 795

Louisville & Cincinnati, &c., R. R. Co. v,

Letson, 2 How. 497 77

Luco v, U. 8.. 28 How. 515. 548 610, 661

Ludwick t. Huntzinger, 5 Watts & Serg.

51 808

Lytle f^. Arkansas, j 22 How. 198 820

Lyle V. Ducomb, 5 Binn. 590 479

McCracken v. Hay ward, 2 How., 612 754

McCready v. Guardians, &c., 9 Serg. &

R^ 94 75

McCuilwh ©.'Maryland, 4 Wbeat.V-ios! ! 247

McBlair v. Gibbes, 17 How. 282 411, 658

McDermutt v. Strong. 4 Johns. Ch. 691. 714

McDonogh v, Murdock. 15 How. 867. ... 711

McDonald «. McCall, 10 Johns. 887 795

McDonald v. Magruder, 8 Pet. 470 164

McFarlan v. Friton Ins. Co., 4 Den. 897. 689

McFaul V, Ramsey. 20 How. 525 472

McGarvey v. Little, 15 Cal. 27 664

McGavock v. Woodlief. 20 How. 225. .. . 298

McGill V. Bk. of U. S., 12 Wheat. 511. . 54

McGregor v. Cleveland, 5 Wend. 475. .. 817
McGregor «. Manager of the D. & D. Ry.

Co., 16 Eng. L. & Eo. 180 185

Mclntire Poor School v. Zanesville Can.

& M. Co.. 9 Ohio, 208 710

Mclver v. Regan, 2 Wheat. 25 99

Maclae v. Suuerland, 25 Eng. L. & Eq.,

114 211

McMicken v. Perin, | ^ ^l^' ^ [ . . • 260

McNutt V. Bland, 2 How. 28. .. 52, 58, 54

McVoy V. Wheeler, 6 Port. 201 448

Maoomber v. Dunham. 8 Wend. 550 808

McWhorter v. Lewis, 4 Ala. 198 580

Macon & Western R R Co. «. Parker, 9

Ga.877 442

Macon & W. R R Co. v. Parker, 9 Ga.

877 41

Mager v. Grima, 8 How. 490 579

Mahony v, Kekule, 14 Com. B. 890 589

Manderson v. Commercial Bk. of Pa., 28

Pa. St. 879 496

Mandeville «. Riggs, 2 Pet. 489 682

Marriott f>. Brune. 9 How. 619 758

Marsh v. Marsh, 9 Rob. 46 278

Marshall v. Bait. & O. R R Co.. 16 How.

814 77

Marshall «. Lynn, 6 Mees. & W. 109 865

Martin v. Hunter, 1 Wheat. 852 810

Mary, The, 9 Cranch 144 682

Maryland «. Bk. of Maryland, 6 Gill & J.

205 158

Mason f>. Feanon, 9 How. 248 891

Masten v. Miller, 1 Anstr. 228 228

Mathews tf. Ward, 10 Gill A J. 448 717

Matheson v. Grant, 2 How. 268 654

Maund «. Monmouthshire Can. Co., 4

Mann. & G. 462 76

Mawson v. Hartsink, 4 Esp. 104 488

Maxey tJ. O'Connor, 28 Tex. 284 628

Maybew v. Norton.. 17 Pick. 857 180

Mayor of Reading «. Lane, Duke 81, 861 708
Mechanics' & Tra. Bk. o. Theall, 8 La.

Ann. 469 775

Mechs. Bk. v. N. Y. & N. H. R R Co.,

18N. Y. 625 228

Meehan c. Forsyth. 24 How. 175 788

Mellona. The. 5 Notes of Cas. 450 701

Menard «. Massey. 8 How. 808, 809. .842, 648

Menard c. Shaw, 5 Tex. 884 117

Mercer v. Sparks, Owen 51 80

Merriam «. Whittemore, 5 Gray, 816 654

Merrick v. Hutt. 15 Ark. 888 85

Miller v. Andrus, 2 La. Ann. 767 786

Miller e. Chittenden, 2 Clarke (La.) 815. . 710

Miller «. Miller, 12 Rob. (La.) 88 776

Millers. Stewart, 9 Wheat. 680, 702.. 54, 690

Milligan «. Cooke, 16 Ves. 1 875

Milligan «. Wedge. 12 Adol. & EU. 787. 595

Mills V. County of St. Clair, 8 How. 569. 576

Milnes v. Gery, 14 Ves., Jr., 400 528

Minor c. Harding, 4 La. 882 776

Minor «. Tillotson, 7 Pet. 99 782

Minot V. Prescott, 14 Mass. 496 255

Minter v. Crommelin, 18 flow. 88 881

Mitchell e. Jenkins, 5 Bam. & Ad. 594 . . 769

Mitchell V, U. S.. 15 Pet. 52.. 187

Mitchell «. Wmslow. 2 Story, 630 442

Mohney «. Cook, 26 Pa. St. 842 486

Montgomery v. Hernandez, 12 Wheat. 182 269
Montague «. Perkins. 22 Eng. L. & Eq

516 829

Moran «. Dawes, Hopk. Ch. 865 698

Moore «. Armstrong. 9 Port. 697 424

Moore v. Fitchburg R. R Co. . 4 Gray, 465 76

Moore v. Greene, 19 How. 69 488

Moore v. Tribodeaux, 4 LA. Ann. 74 776

Moore c. Waller, 1 A. K. Marsh. 488. ... 424

Mordecai «, Lindsay, 19 How. 200 161

Morgan v. Creditors. 7 La. 62 278

Morris Canal, <&c., Co. «. Fisher. 1 Stock.

667 228

Morris v. Corson, 7 Cow. 281 769

Morris v. Crocker, 4 La, 149 795

Moss..Gallimore. [i)^^^^^!^' ^ ^^®' [ «
Mott «. Penn. R. R Co.. 80 Pa. St. 1. . . 496

Mozley «. Alston. 1 Phil., 790 496

Moulgrave, The, 2 Hi^g. 78 288

Munroe v. Perkins, 9 Pick. 298 865

Munro v. Phelpes & Butt, 8 El. & B. 788;

National Ex Co. of Glastrow v. Drew, 2

Mac. H. of L. Cas. 108 76

Nav. Co. V, Bank, 6 How. 81 88

Neilson v. Harford, 1 Web. Pat. Cas. 842 868

Nelson «. Boynton. 8 Met. 896 865

N. J.c. N. Y., 5 Pet. 284 726

N. J. S. Nav. Co. V, Merchants' Bk., 6

How. 844, 892 112, 517, 681

CiTATTONB.

N. T. & L. SteaiDflhip Ck>. «. Rumball*

21 How. 384 890, 664

N. Y. A Va. 8. 8. Co. v, Calderwood, 19

How .841 76

New Orleans. The. v. Phcebus, 11 Pet. 176 118

Newflom v. Pryor, 7 Wheat. 10 180

Nicholl V. Mason. 21 Wend. 889 680

Nicoll V, Glennie. 1 Maule & 8. 688 429

Nightingale «. Devisone. 6 Burr. 2689 ... 163

Norwood «. Devall. 7 La. Ann. 628 776

Nutt e. Minor, 14 How.. 464 688

Nutting V. Herbert, 86 N. H. 120 292

Oakley v. Aspinwall, 4 N. Y., 618 681

OgilTte «. Fofjambe. 8 Merio. 68 876

Ohio 9. Guilford, 16 Ohio. 698; 18 Ohio,

600 710

Ohio Mut. Ins. Co. v. Marietta W. F., 8

Ohio 848 68

Olmsted v. Hotailing, 1 tlill. 818 429

Oregon. The, v.Rocca, 18How.670. 672.. 148, 399
Orleans, The, v, Phoebus, 11 Pet. 176. 184

260. 266. 296

Osbom «. U. 8. Bk., 9 Wheat. 841 229

Osmauli, The, 7 Notes of Cases. 607 81

Oswold D. OeoTgia. 2 Dall.. 602 726

Otis V. Walter, 2 Wheat. 19 169

Outram v. Morewood. 8 East. 846 668, 779

Overseers of Berlin s. Norwich, 10 Johns.

229 94

Overton v. Tyler, 1 Am. Lea. Cas. 822. . 264

Owings V. Hull. 9 Pet. 607 120

Packer t. Nixon. 10 Pet 410 689

Palmer «. U. 8.. 24 How. 126 661

Palmyra. The. 12Wheat 1 82

Panaud v. Jones, 1 Cal. 497 644

Parker v. Kane, 4 Wis. 1 291

Parker 9. Overman, 18 How. 140 86

Pariah v. Ellis. 16 Pet.. 468 200

Parsons v. Bedford, 8 Pet. 446, 447 98, 200

Partridge v. Badger, 26 Barb. 146 168

Patapeco Ins. Co. v. Biscoe, 7 Gill & Johns.

298 832

Paton V. Brebner, 1 Bligh. 42 875

Patterson v, Gaines, 6 How. 660. .776, 777, 783

Patterson v, Todd, 18 Pa. 8t. (6 Harr.) 434 117

PaUerson o. Winn. 6 Pet. 238 120

Patton V. McClure. M. & Yerg. 846 99

Patton 0. Phil. & N. Orleans, 1 La. Ann.

100 784, 786

Patton 9. Taylor, 7 How. 182 376

Peale v. Phipps, 14 How. 868 428

Pearce v. Mad. & L R R Co., 21 How.

441 497

Peck «. Harriott, 6 8. & R 149 266

Peck V. Jenness, 7How. 624 761

Peck «. Sanderson. 17 How. 178 81

Pegram v. Isabell, 2 Hen. & M. 210, 211 . 648

Penhallow v. Doane, 8 Dall. 102 93

Pennington v. Gibson, 16 How. 66 631

Pennock ». Coe. 28 How. 117 762

Pennock «. Dialogue, 2 Pet. 1 168

Penrod v, Mitchell. 8 Serg. & R 622. . . . 698

People «. Manhattan, 9 Wend. 882 689

People's Ferry Co. «. Beers, 20 How. 400.

401 266,296, 617

Perkins v. Mobley, 4 Ohio St. 668 483

Perrinev. Ches. & Del. Can. Co., 9 How.

ITS 186

Peyroux v. Howard,7 Pet.824, 848.118, 266, 296

Pharis v. Leachman. 20 Ala. 662 428

Phil. & Read. R R. Co. v. Derby, 14 How.

468 76

Phillips V. Kingfleld. 19 Me. 876 488

Phillips fj. Preston, 5 How. 289 98

Phillips V. Winslow, 18 B. Monroe, 481 . 442

Pierce v. Emery. 82 N. H. 484 168, 442

Pillow c. Roberts, 18 How. 472 86

Pinkney «. Hall, 1 Salk. 126 316

Pitt V. Donovan. 1 Maule & 8. 689 80

Poage t. Chinn, 4 Dana. 60 788

Pollard V. Ribbe, 14 Pet. 860, 406. . . .809, 779

Prall V. Peets, Curator, 8 La. 282 776

Preston v. Slooomb, 10 Rob. La. 861 779

Purcell «. MacNamara, 9 East. 861 769

Purcell V. Purcell, 4 Hen. & M. 607 281

Quafman v, Burnett, 6 Mees. <& W. 499. . 696

Randleson «. Murray, 8 Ad. & E. 109. . . 696

Randon v. Toby, 1 1 How. ,617 472

Rankm v. Hoyt. 4 How., 827, 886. . . 767, 768

Reeside, The. 2 Sumn. 667 618

Reeve v. Dalby. 2 Sim. & 8tu. 464 779

Regina (or Queen) v. Lightfoot, 6 ElUs &

B.822 682

Renunington «. Linthicum. 14 Pet. 84. . . 717

Renner «. Bk. of Columbia, 9 Wheat.688 618

Republic v. Thorn, 3 Tex. 699 666

Reuben v. Parrish. 6 Huinph. 122 648

Revett V. Brown. 2 M. A P. 18 427

Rex V. Rookwood, 13 How. St. Tr. 211. . 488

Rex V. Watson. 82 How. St. Tr. 496. .. . 488

Reynolds s. Mafrness. 2 Ired. 26 94

Rhode Island, The, Olcotl. 616; 1 Blatch.

^ 868 588, 684

Rich t>. Lambert. 12 How. 347 48, 617

Richardson v. City of Boston, 1 9 How. 263 627

Ridgway «. Gray. 1 Macn. & G. 100 375

Rightor c. Aleman. 4 Rob. 46 298

Riv. Clyde Trustees v. Duncan. 26 Ener. L.

& Eq. 19 117

River's Case, 1 Atk. 410 783

Robertson v. Teal. 9 Tex. 348 623

Robinson 17. Campbell,3 Wheat. 212, 881. 199, 233

Rochester v. Lee, 1 Macn. & G. 467 291

Roe or Reade v. Resde. 8 Term, 118 199

Ross V. Barland. 1 Pet, 656 100

Rose, The. 7 Jur. 881 701

Rothschild v. Currie, 1 Adol. & E. (N. 8.) 470

Rowley «. Bigelow, 12 Pick. 307 420

Royal British B'k v. Turquand, 6 EIL &

B. 827 210

Royal British B'k v. Turquand, 6 Ell. &

„ B. 248 210

Ruggles V. Alexander, 2 Rawie, 232 ... 668

Rush V, Parker. 6 Cranch. 287 72

Sampson v, Peaslee, 20 How. 571. 674. . . 419

Saul f>. Creditors, 7 Mirt. N. 8. 446 279

Savile t>. Roberts, 1 Ld. Raym. 874 697

Sawyer «. Woodbury. 7 Gray, 499 664

Schroeder c. Nicholson, 2 La. 364 278

Seymour v. Canandaigua & Niag. Falls

R R Co. 26 Barb. 284, 286 167. 442

Seymour «. Hazard. 1 Johns. Ch. 2 281

Seymour c. McCormick, 16 How. 485. . . 615

XVI

CiTATIONB.

Shacbell o. Shachell, cited 2 Curteis Eocl.

351 3H0

Shafer v. Stonebraker, 4 Gill & J. 860. . . 779

Sbaftoe v. Sliaftoe, 7 Yea. 171 229

flhaw V. Ckwper, 7 Pet. 292. 319 168

tthedc. Brett, 1 Pick. 418 41

Sheldon «. Sill, 8 How. 441 223

-Sheltbn «. Barbour, 2 Wash. (Va.) 82. . . 648

Bhirras v. Caig, 7 Cranch, 84. 478, 479

Short. Estate of, 4 Harr. 63 85

Sibbaldi^. U. S.. 12Pet. 488 187

Silsby «. Foote, 14 How. 222 427

Sinclair v, Jackson, 8 Cow. 548 744

Slater «. Emerson, 19 How. 224, 239. ..863, 448

Slocuni c. Mayberry, 2 Wheat. 1 761

Smith V. Adams, 24 Wend. 685 779

Smith c. Clapp, 15 Pet. 125 228

Smith «. Com. B'k of Rodney, 6 Sm. &

M. 88 580

Smith «. Hosier, 5 Blackf . 61 • 100

Smith v. Power, 23 Tex, 29. 146 656

Smith V. Spooner, 8 Taunt. 246 80

Smith V. Tonstall, Carth. 8 698

Snow V. Inhab. of Ware, 18 Mete. 42. . . 865

Sohier v. St. Paul's C'h. 12 Mete. 250. . . 710

Sonley «. Clockmakers* Co.,1 Bro. Ch. 81 711
Sophie V. Duplessies, 2 La. Ann. 724. .548, 785

Sowell V. Champion, 6 Ad. & E. 416 428

Sparrow t. Cooper, 2 W. Bhick. 1816. . . 418

Spear «. Crawford, 14 Wend. 20 639

Spence v. Chad wick, 10 Q. B. 517 894

Spencer 0. Lapsley, 20 How. 264-270... 120

614, 623.

Spottswood V. Dandridge, 4 Munf. 289. . 428

Sproul V, Hemmingway, 14 Pick. 1 595

Stainback v. Rae, 14 How. 532. .110, 595, 701

Stairs v, Peaslee, 18 How. 524 757

Standen 9. Standen, 2 Yes., Jr., 589 783

State B'k v, Coquillard, 6 Ind. 232 157

State (Conn.) «. Randolph, 24 Conn. 363 483

State (La.) v. Poydras, 9 La. Ann. 165. . 579

State (Me.) f>. Bruce, 24 Me. 72 483

State (N. H.) v, Howard. 9N. H. 485. ... 483

State (N. C.) v. Gerard, 2 Ired. Eq. 210. 708

State (Ohio) t. Van Home. 7 Ohio 8t.327 497

State V. Rives, 5 Ired. N. C. 297 41

State (Vermont) v. Smith, 7 Vt. 141 483

Stead V. Dawber, 10 Ad. & £1. 57 365

Steams v. Hall, 9 Cush. 31 365

Stearns v. Page, 7 How. 819 488

Stevens v. Cooper, 1 Johns. Ch. 429 865

Stevens v. M. C. Rv. Co., 10 Exch. 356. . 719

Stevenson «. Newnham, 13 Com. B. 285. 698

Stewart v. Agnew. 1 Shaw. App.Cas. 418 556

Stewart v. Eden, 2 Caines. 121 461

Stewart v. Stebbins, 80 Miss. 66 291

St. John V, Paine, 10 How. 557, 588. . .149, 899
Stoddard v. Chambers, 2 How. 284, 818.

148, 188

Stone «. Crocker, 24 Pick. 88 769

Story 9, Livingston, 13 Pet. 359 283

Stover V. Freeman, 6 Man. 486 560

Stowell 9. Robinson, 3 Bing. N. C. 928. . 36

Strangewavs, Ex parte, 8 Atk , 478 229

Straus V. Eagle Ins. Co. of Cin., 5 Ohio

St. 59 497

Street «. Street, 1 Turn. & Russ. 322 . . 229

Strother u. Lucas, 6 Pet. 76» 200

,Swan V. Steele. 7 East, 210 316

Sullivan «. Fulton Steamboat Co., 6

Wheat. 450 78

Sussex, The Duke of, 1 Wm. Rob. 274.. 399

Suydam tf. Broadnax, 14 Pet, 67 428

Suydam «. Williamson, 20 How., 428,482.. 88, 96

Swift V. Tyson. 16 How., 1 166

Symonds v. Atkinson, 87 Eng. L. & Eq.

685 7^. 117

Taintor c. Prendergast, 8 Hill, 72 589

Tapfield v. HiUman, 7 Jurist, 771 442

Tarver v. Tarver, 9 Pet. 174. 278

Taylor «. Carryl, 20 How. 588 760

Taylor c. Green, 8 C. & P. 816 429

Tevis V, Pitcher, 10 Cal. 465 644

Texas «. Thom, 8 Tex. 499 656

Texira t. Evans. 1 cited, Anstr. 228 223

Thicknesse «. Bromilow, 2 Cromp. & J.

425 817

Thomas «. Clement, 11 Rob. 897 409

Thomas v. Dering, 1 Keen, 729 * 875

Thomas «. Hatch, 8 Sum. 178 560

Thompson tf. Roberts, 24 How. 283 798

Thompson v. Tolmie, 2 Pet. 157 290

Thomson v. Searcy, 6 Port. 893 424

Thorold c. Smith, 11 Mod. 71 158

Thurman «. Virgin, 18 B. Mon. 792 488

Tonkin «. Fuller, 8 Doug. 800 117

Towle V. Forney, 14 N. Y. 426; 4 Duer,

164 744

Townsley c. Sumrall, 2 Pet. 182 866

Tripp «. Chard. Ry. Co., 21 Eng. L. A

Eq. 63 41

Troup «. Smith, 20 Johns. 83 99

Turner c. Ambler, 10 Q. B. 267 769

Tyler «. Creditors, 9 Rob. 872 278

Uhlt). Com., 6Gratt. 706 488

Ulary «. The Washington, Crabbe, 204. . 486
Union B'k v. Fowlkes, 2 Smed., 555, 470 428

Union Bank v. Jolly, 18 How. 508 428

U. S. V. Arredondo, 9 Pet. 691. . .187, 381, 757
U. S. V. Bassett, 21 How. 412. . ..449, 450, 465

U. S. V. Bolton, 23 How. 341 661

U. S. tf. Booth, 21 How., 506 762

U. S. v. Boyd. 15 Pet. 187 54

U. S. t>. Breitling. 20 How. 265 242

U. S. V, Cambuston, 20 How. 69 881, 578

U. S. f>. Cochran, 2Brock,274. 54

U. S. V, Davenport, 15 How. 1 120

U. S. V, Eliason, 16 Pet. 801 98

U. S. «. Forbes, 15 Pet. 182 840

U. S. tJ. Fossat, 20 How. 418. .446, 876. 186, 474

U. S. V. Gooding, 12 Wheat. 470 92

U. S. c. Hanson, 16 Pet. 200 478

U. S. V, Hooe, 8 Cranch, 73 479

U. S. «. Howland, 1 Wheat. 108 283, 229

U. S. tJ. King, 7 How. 845 93

U. S. f>. Kingsley. 12 Pet. 476 464

U. S. V, Nelson, 2 Brock. 64 228

U. S. «. Nye, 21 How. 408

137, 449, 460, 466, 612

U. S. V. Oslo, 28 How. 278 499

U. S. V, Pacheco, 22 How. 886 478

U. S V. Packages of Dry Gtoods, 17 How.

93 886

U. S. V, Patterson, 16 How. 10 128

U. S. «. Peralta, 19 How. 348 881

U. S. V. Percheman, 7 Pet. 61 128, 780

U. S. V, Peters, 6 Cranch, 116 762

U. S. «. Reading, 18 How. 1 896, 465-464

U. S. fj. Rose, 23 How. 262 612

U. S. V, Southmayd, 9 How. 687 768

GiTATIQiXrB.

ZTU

U. 8. «. Sutter. 21 How. 170 186, 677

U. 8. V. Teschmaker, 82 How. 892. . .859, 869

U. 8. «. Van Sickle, 2 McLean, 219 488

U-8.«. While, 4 Wash. 417 54

U. 8. V, WiikiDB, 6 Wheat. 144 582

Vaaderbuigh «. Hull, 20 Wend. 70 765

Van Deusen v. Van Slyck, 15 Johns. 228 428

Vandewater v. Mills, 19 How. 90 602

Van Rensselaer v, Kearney, 11 How..825 100

y aughan «. Phebe, Mart. & Y. 5 648

Very d. Levy, 18 How. 846 528

Yicaryv. Moore. 2 Watts, 451 865

\ldal V, Girai^'s Exec's, 2 How. 190. ... 711

Yidal «. Mayor of Phila., <&c.,2 How.127 710

Violett V. Patton, 5 Oranch, 142 828, 865

Tixen. The. 1 Dod. 145 894

Yooght V, Winch, 2 Bam. & Aid. 662 . . 658

Yoorhees «. B'k of U. S., 10 Pet. 449 .. . 681

Walker d. Barnes, 8 Madd. Oh. 247 875

WaUop, Hx parte, 4 Bro. Ch. 90 788

Walls f. Smith, 8 La. 501 298

Waring «. Clark, 5 How. 464 485

Warrender e. Warrender, 9 Bligh. (N.

R) 108 280

Watkins v. Holman, 16 Pet. 25 782

Watson V. Mercer, 8 Pet. Ill 670

Watson tf. Templeton, 11 La. Ann. 187 . 470

Waugh V. Carver, 2 H. Black. 285 764

Wayman «. Southard, 10 Wheat. 22 788

Webster «. Reid, 11 How. 460 681

Wellington «. Small, 8 Cush. 146 698

West V, Creditors, 8 La. Ann. 529 779

Wheeler v. The Eastern St., 2 Curt. C.C.

j^ onn

Wheeler v' Moody, 9 Tex. 872 . . .... 628

Wheeler v. Wheeler, 2 Dan. Abr. 810. . . 281
Whitcomb v. Whitcomb, 2 Curtteis Eccl.

852 280

Whitfield D. Southeastern By. Co., 96

Eng. C. L. 115 76,79

White ». Cuddon, 8 Clark & F. 766 875

White V. Haight, 16 N. Y. (2 Smith) 810. 67

White V. Tommey, 4 H. L. Cas. 818 556

Whitworth v. Gaugain, 8 Hare Ch. 416. . 442

WickliiTe v. O wings, 17 How. 47 770

Wike V. Lightner, 11 B. & R. 198 483

Wilkinson «. Leland, 2 Pet. 661 670

Wilks V. Davis, 8 Mer. 507 528

Wilson V. Black Bird C.M.Co.,2 Pet. 251 247

Wilson V. Hart, 7 Taunt. 295 94

Wilson V. Inloes, 11 Gill & J. 868 716

Wilson V. Marshall, 10 La. Ann. 881 775

Wilson V. Rousseau, 4 How. 646 242

Wilson V. Stanton. 6 Blackf. 507 164

Wilton V. The Railroads, 1 Wall.. Jr., 195 482

Willans «. Taylor, 6 Bins. 184 769

Williams v. Ballance, 28111. 198 788

Williams «. Bank of U. S.. 2 Pet. 96. . . 469

Williams v. Benedict, 8 How. 107 428

Williams d. Bninton, 8 Gil. 600 655

Williams v. Dormer, 9 Eng. L. &Eq.698;

15 Jurist, 866; 2 Rob. Eccl. 505 280

Williams «. Gibbes, 20 How. 535 658

William v. Leper. 8 Burr. 1886 865

Williams «. Oliver, 12 How. Ill 658

Williams, Succession of, 7 Rob. La. 46. . 779

Williams v. Williams. 8 N. Y. 525 710

Williamson v. Ball, 8 How. 566 744

Williamson v. Berry, 8 How. 495 744

Williamson c. Irish Pres. Cong. N. Y., 8

How 744

Williamson v. Eincaid, 4 Dall. 20 72

Willink V. Morris Can. & Bidng Co.. 8

Green, Ch.,877 442

Winch V. Birkenhead, L. & C. R. Co., 5

De Qex. & S., 562 496

Winship t>. B'k of U. S., 5 Pet. 529 ... . 817

Womack «. Womack, 2 La. Ann. 889. . . 409

Wood V. Draper, 24 Bart. 187 496

Wood V. Jackson, 8 Wend. 9 664

Wood V. Mann, 2 Sum. 821 488

Wood V. U. 8., 16 Pet., 863 886

Woodman v. Hubbard, 5 Fost. 67 486

Yates V. lams. 10 Tex. 168 404

Yates V. Joyce, 11 Johns. 186 698

Yenda «. Wheeler. 9 Tex. 410 666

Yerby v. Grisby, 9 'Leigh. 887 255

Young V. Black, 7 Cranch, 565 654, 779

Zabriskie «. Cleve.. Col. & Cin. R. R.

Co., 28 How. 881. 400 618, 672

Zanesville C. & M. Co. v. Zanesville, 20

Ohio. 488 710

A0T8 OF CONGRESS CITED.

July 81st, 1789 886

Sepi. 1. 1789 886

Sept. 24th, 1789 97, 126, 150, 172, 187,

199, 202. 269, 805, 809, 820, 886, 412,
428, 517, 518, 698, 604, 632, 698, 726,
788, 789, 740. 741, 798.

Apr. 21st, 1792 158

May 8th, 1792 95, 199

Dec. 81st. 1792 247

Feb. 12th, 1793. . . .171. 721, 722, 728, 729, 730

Ffeb. 18th. 1793 246, 386

Mar. 2d, 1798 614

Mar. 2d. 1799 194,886,761

Apr. 29th ,1802 689

Apr. 80th, 1802 159, 885

Mar. 8d, 1808 61.97, 169

Mar. 26th, 1804 487

U. 8., Book 16.

Mar. 3d, 1805 487

Mar. 3d, 1807 320. 321, 487

Mar.26. 1810 795

Feb. 15th. 1811 99

June 18th, 1812 608

Apr. 28d, 1812 99

Apr. 26th, 1812 694

May 6th, 1812 99, 253. 321

Mar. 8. 1813 199

Apr. 12th, 1814 269

Feb. 16th, 1815 183

Feb. 17th. 1815 199, 200, 264, 268, 269

Mar. 5th . 1 81 6 99

Apr. mb, 1816 99

Feb. 1817 278

Mar. 18th. 1818 159

Mar. 3d. 1819 694

2 ^-

ZVlll

CiTATIOire.

ACTS OF CONQRESa CITED, CON.

May 15th, 1820. . . .800, 488, 641, 642, 731, 784

Mar, 21, 1821 150

Apr. 26th, 1822 183, 269

May 7th, 1822 193, 194, 195, 198, 388

884. 886, 387.

May 8th, 1822 694, 695

Mar. Ist, 1828 124

Mar. 8d. 1828 641, 642, 780. 781. 782, 783.

784

May 26th,' 1824 97, 187, 390

May 22d, 1826 258

May 28d, 1828 187

Feb. 6, 1829 142.148

Nov. 15th, 1829 488

May 29th, 1830 268, 809, 811

Mar. 8l8t, 1880 692

Mar. 2d, 1881 755

Mar. 8d, 1881 577, 694, 695

Apr. 20th, 1832 269

July 9, 1832 188

July 14th, 1832. . . .124, 268. 809, 811, 384, 886

Mar. 2d. 1833 384

June 27th. 1834 884

Mar. 8d. 1835 225, 884

July 2d, 1886 142, 148

July 4th, 1836 188, 242, 884, 481

Mar. 8d,1837 884

Apr. llth,.1887 648

1838 639

July 7th. 1838 884,385

lb39 688

Feb. 28. 1889 202

Mar. 8d. 1839 166, 167. 198, 194, 195

May27th, 1840 258

July 2l8t, 1840 384

1841 688

Mar. 8d, 1841 198, 196, 888, 884, 886

Sept. 4th, 1841 696

Aug. 2d, 1842 197

Aug. 28d, 1842 198, 195, 196, 197

Aug. 80th, 1842 124, 757, 761, 762

Mar. l8t. 1843 269

Mar. 8d, 1848 696

May 81, 1844 81

Feb. 24th, 1845 688

Feb. 26th, 1846 Ill, 112,.118, 118

Mar. 8d, 1845 193

July 80th, 1846 124, 125, 419. 757, 762

Aug. 8th, 1846 419, 507,608

Mar. 8d. 1847 181

Aug. 12th, 1848 198, 195,198

Aug.Uth, 1848 81

2g49 0^

Mar. 8d, 1849... '.'.\.'.\\'l98V 195,' 196, 197, 218

Sept. 18th, 1850 170

Sept.20th. 1850 695

Sept 27th , 1850 81

Sept. 28th. 1850 198, 195

Sept. 80, 1850 198, 195,198

Mar. 8, 1851 47, 124. 187. 186, 198. 195.

198, 416. 419. 458. 466. 474. 497, 498,

547,561, 572. 577, 664, 680. 681,757, 762.

Aug. 81, 1852. .186. 198, 195, 198. 226, 842, 848

Mar. 3d, 1853 195, 696

Mar. nth. 1853 698

Feb. 15th, 1854 246

July 17th, 1854 547

Apr. 80th, 1856 688

May 15th, 1856 507

Mar. 8d, 1857 126, 789, 761

CONSTITUTION OF THE UNITED STATES, CITED.

Art. 1, Sec. 2 726

Art. 1, Sec. 8 Ill, 168. 174

Art. 1, Sec. 10 646,754

Art. 3 199,174

Art. 8. Sec. 2 78, 199, 229, 788

Art. 6 174

ARGUED AND DEOmED

IN THB

SUPREME COURT

OF THB

UNITED STATES,

DECEMBER TERM, 1858.

Vol. 62.

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WASHIMCrrOM. D, o.

THE DECISIONS

OF THB

Supreme Court of the United States,

AT DECEMBER TERM, 1858.

THE CLAIMANTS AND OWNERS OF
THE STEAMER LOUISIANA, AppeOanU,

ISAAC FISHER bt al.
(See 8. Cm 21 How.. 1-7.)

OMnan beitoeen steamer and tchooner — the
farmer held in fault.

A aebooner in Chesapeake Bay was makioir a
southwest oouraet and was doae-hauled upon the
wind. She was run into by a steamer and sunk. She
did Dot vary her course after the steamer came in
alfrfat. The steamer was first directed to the west-
ward, and afterwards to the eastward, and then
stopped and backed ; and these contrary move-
ments were the result of the doubts of ner offi-
cers ms to the position or course of the schooner.
If Uie order to ease the engines, or to stop, had
been given in the first instance, the probability is
that the catastrophe would have been avoided.
Steamer held in fault.

The BOhoooer was not responsible for faOinir to
canr a Uipht. The nlsrht was moonllirht ; though
the liirht was occasionally obscured, but not to a
degree that rendered the navigation of the bay
dangerous, if care, skill and vigilance had been em-
ployed upon the different vessels.

(Mr. Justice Watitk did not sit in this cause.)
Argued Dee. IS, 1868, Decided Bee. 28, 1868.

APPEAL from the Circuit Court of the
United States f«r the District of Maryland.

The libel in this case was filed in the Dis-
trict Court of the United States for the Dis-
trict of Maryland, by the appellees, to recover
damages resulting from the lo68 of the schoon-
er, QtSoTWd D. Fisher, and certain goods and
money, by a collision.

The District Court entered a decree in favor
of the libelants for $3,100.

The Circuit Court having afiQrmed this de-
cree, on appeal, the defendants took an appeal
to this court.

A further statement of the case appears in
the opinion of the court.

Mr. WiUiam Schley, for appellants:

The following propositions are urged on the
part of the appellants:

1. The omission of the schooner to display
a light, under all the circumstances, was actual
n^e^ and a culf^ble fault.

Act of 1888, ch. 191, sec. 10, 6 Stat, at L..
806; Act of 1849, ch. 105, sec. 5, 9 Stat, at L.,
882; also 14 and 16 Victoria, cap. 79. sec. 2C;

NoTB— Bl0ht« of 9tMun and mUinovtmeiH wtth refer-
enee to each other, and in pacing aiul meeting. See
note to St. John v. Paine, 51 U. S. (10 How.), 667.

See 21 How.

The Londonderry, 4 No. Cas. Supp., 46; 5
Eng. Adm.; The Iron Duke, 2 Wul Rob, 888;
9Eng. Adm., 882; The Delaware ▼. The Oe-
prey, 2 Wall., Jr., 268; Rogers v. Tfie St.
Charles, 19 How., 109; Ure v. Coffman, 19
How., 68; Ward v. Armstrong, 14 Dl., 286;
Simpson v. Hand, 6 Whart., 824; Gar^ v.
White, 21 Pick., 264; TheAliwal, 26 Eng. L &
Eq., 604; Williams y. Chapman, 4 No. C^^.,
690-692; N. T. di Va. Steamship Co. y. Oatd-
erwood, 19 How., 246.

2. Even if the schooner was not bound to
display a light, as an act of legal duty, and
even if the omission to do so was not, in fact,
any want of care; yet it was no fault of the
steamer, if the persons who were on the look-
out on board of the steamer were physically
unable, from the absence of a light, to discern
the schooner, in due time to have made the
necessary dispositions to avoid a collision.
The rule should then apply, that in a case of
misfortune, without fault on either side, the
suffering party is without redress.

Peek V. Sanderson, 17 How., 178; Stainbaek
v. Bae, 14 How., 682.

3. At all events, even if the steamer is
blamable for having maintained too high a
rate of speed, still the schooner was in fault in
having improperly changed her course, as
shown by the proof; and m this view the loss
should have been divided.

The Catharine Y, Dickinson, 17 How., 177;
Rogers v The St. Charles, 19 How., 108.

Messrs. William Price and S. T. Wallii»

for appellees:

1. Herbert N. Fenton, though a part owner
and libelant, was a competent witness for the
libelants as to the facts of the collision itself,
touching which only he was examined.

The Catharine of Dover, 2 Hagg., 146; The
PiU, 2 Hagg., 149, n.; The Sarah Bamardina,
2 Hagg., 161, n.; 8 Greenl. Ev., sec. 412; The
Boston, 1 Sumn., 848.

2. The steamer had no sufficient lookout,
whose whole business was to act as such ac-
cording to the established law of this court
Pearson was in the actual discharge of his duty
as master, and Marshall was employed at the
time as pilot.

St. JohnY. Payne, 10 How., 686; 27«« Oen-
esee Chief v. Fitzhugh, 12 How., 462; The New
York v. Bea, 18 How., 225; Ward v. The Og-
denslmrgh, 6 McLean, 622.

1-7

SUFEBMS OOUBT OW THB Umn&D BtATBB.

Dbc. Term,

8. As matter of law, there was no obligation
on the part of the schooner to carry a light, or
to display one on such a night; and as matter
of fact, the question of her having been with-
out a light is not a practical one in this case.

The testimony of the master and mate of
The Roanoke, it will be argued, are of con-
clusive weight for the appellees, they not only
being indifferent witnesses, but having been
at the time and previously, engaged in following
the course of The Fisher as a guide of their
own, so that they, of necessity, were forced to
know the course she was pursuing, and did, in
fact, know, from actually seeing her, the dis-
tance at which she was visible.

8t. John V. Payne, 10 How., 586; The Pan-
ther, 24 Eng. L. & Eq., 585-587; W(Ush v.
Bogers, 18 How., 288; Newton v. Stebbins, 10
How.. 606; UreY. Coffman, 19 How.. 62, 63;
Morrison v. Nav. Co., 20 Ensr. L. & Eq., 457,
458.

4. It is clear from Captain Pearson's testi-
mony in reeard to the noise of the rudder
chains, that Marshall starboarded his helm, be-
fore he knew, on his own showing, whether
the schooner was at anchor or in motion. This
overt act, in addition to his failure to slacken
the steamer's speed, seems to place the respon-
sibility of the appellants beyond question.

The Londonderry, 4 No. Cas. Supp., 87, 88;
Ward V. The Ogdensburgh, 5 McLean, 622;
HewtouY. Stebbina, 10 How., 606; The Perth,
8 Hagg., 417; The Oregon v. Soeixi, 18 How.,
672; Sogers Y, The St. Charles. 19 How., 108;
Peek V. Sanderson, 17 How., 180, 2.

Mr, JusUee Campbell delivered the opin-
ion of the court:

The appellees instituted their suit in the Dis-
trict Court of the United States for the Di&
tfict of Maryland, sitting in admiralty, a^inst
the steamer Louisiana, m a cause of collision,
arising between the steamer and the schooner
€^rge D. Fisher, in the Chesapeake Bay, in
December, 1855, in which the latter was run
into and sunk, and became a total loss.

The libelants charge, that before and at the
time of the collision the schooner was bound
on a voyage from Philadelphia to Norfolk,
through tbe Chesapeake Bay, and was prop-
erly manned and equipped for that voyage, and
carefully navigated. That the steamer was
seen from the schooner, shortly after ten
o'clock P. M., about eight or ten miles distant,
steering up the bay, the schooner making
about four knots an hour, in a southwest
course, against the wind, which was blowing
about south by east. That when the steamer
was within a half mile or a mile distant, she
appeared to be hauling to the westward, with
the apparent intention of crossing the schoon-
er's bows, but shortly afterwards seemed to be
again hauling to the eastward, as if to drop un-
der the schooner's stem. That this last move-
ment was made too late, the distance between
the two vessels being too inconsiderable to al-
low it to be of any avail. That the moon was
shining, and the schooner might have been seen
at a considerable distance. That the course of
the steamer was between north-northeast and
northeast.

The claimants in their answer admit the fact
of the collision and the consequent loss of the

schooner, and that it was a moonlight night;
but say that it was cloudy in the western part
of the horiscon, and in consequence of heavy
banks of snow clouds in that quarter, it was
impossible to see vessels coming in that direc-
tion without lights, at any considerable dis-
tance; and a steamer, therefore, coming up the
bay, could not make such regulations as to
speed and course as to avoid collisions, that
would have been practicable and proper under
other and more favorable circumstances. They
allege that the schooner did net carry a light,
and was the only vessel seen without one, and
in consequence of this deficiency, and the
character of the night, the schooner was not
visible, and could not be seen until the two
vessels were within the short distance of three
or four hundred yards.

In reference to the fact of the collision, they
answer, that when the schooner was first seen
from the steamer, the schooner was to the
eastward, and proper action was had on board
the steamer to direct her course to the west-
ward; but when the course of the schooner in
that direction was ascertained, the course of the
steamer was changed, and the boat was stopped
and backed; but from the proximity oi the
vessels at this time, it was impossible by any
effort to avoid the collision. The steamer was
running at the rate of fifteen miles an hour
before this time. The District Court pro-
nounced a decree of condemnation, which was
affirmed in the Circuit Court, on appeal.

The evidence convinces 'the court that the
schooner might have been distinctly seen from
the steamer at a greater distance than a half
mile.

It is shown that another vessel was sailine in
the wake of the schooner, and was guided in
her course b^ her. and that the schooner was
distinctly visible to those who were on board
that vessel at a greater distance.

It also satisfactorily appears that the schoon-
er was in fact discovered by the lookout on
board the steamer when the vessels were sev-
eral hundred yards apart, and that, by careful
management of the steamer, the collision
might then have been avoided.

'The captain of The Louisiana says: *' That
after passing the Rappahannock hghtbeat I
saw a black object; it appeared to be heading
about south southwest down the bay; it was
about two points or two points and a half to
the e&st of us. I could not tell at that moment
whether it was a vessel at anchor or under
way, but directly discovered it was a vessel
under way, and she kept right hard off to the
westward. This vessel had no lights. I think
the distance was from two hundred yards to
two hundred and fifty. As soon as I saw her
lib, I called to Mr. Marshall (pilot) to stop and
back." Cross-examined, he says: " From the
time I first saw the vessel until the time of the
collision, was, I should suppose, two minutes,
more or less. The vessel changed her course,
and kept off hard to the westward. I saw her
jib, which enabled me to Judge that it Was a
vessel under way. The change took place im-
mediately after i first saw the object. When I
first saw it, it looked like a cloud. I could
not tell if it was a vessel at anchor or under
way. When I saw the jib, I first knew it
was a vessel under way."

68 U. S.

1868w

RiCB V. Minn, amd N. W. R R Co

81^»6

Notwithfltanding the ancertainty in the mind
of this offloer, the vessel under his command
continued on in her voyage with unabated
speed. No order was dven to arrest her prog-
ress till a collision with the schooner had be-
come inevitable. This was a grave error, and
was followed by disastrous conaequences, for
which the owners must render indemnity. In
the case of The Birkenhead, 8 W. Rob., 75, the
steamer was directed upon the supposition that
a sailing vessel under way was at anchor, and
proper precautions were taken under that hy-
pothesis. The circumstances were such as
might have occasioned a mistake. But the
Judge of the Admiralty, with the advice of the
Trinity Masters, condemned the steamer to
compensate for the collision, saying " that she
should not have prosecuted her voyage in any
uncertainty, but should have eased or reversed
her engines until the fact was ascertained."

The case of The James Watt, 2W, Rob., 271,
is similar in its circumstances to the one under
consideration. The master testified, that when
he discovered the sailing vessel, he ported his
helm without stopping to ascertain her course.
" In my apprehension," said the «fudge, *' the
master of The James Watt would have acted,
under the circumstances, with greater prudence
and caution, if, upon first discovering the sail-
ing vessel, instead of porting his helm, he had
continued his course at slacked speed, by easing
his engines till he was able to discover the
course the sailing vessel was steering, and then
acting according to circumstances. If he had
pursued this course, it is apparent from the evi-
dence, that, in the short space of about a min-
ute after the sail was reported, he would have
discovered her course, and could have adopted
the measures that might altogether have pre-
vented the collision."

The evidence shows that The (George D.
Fisher was making a southwest course, and
was close-hauled upon the wind. That she did
not vary her course after the steamer came in
flight. That the steamer was first directed t3
the westward, and afterwards to the eastward,
and then stopped and backed, and that these
contrary movements were the result of the
doubts of her ofilcers as to the position or
course of the schooner. If the order to ease
the engines, or to stop, had been given in the
first instance, the probability is that the catas-
trophe would have been avoided.

The decisions of this court have settled that
this was the duty of the steamer under such
circumstances. Peek v. Sanderson, 17 How.,
178. It is contended on the part of the ap-
pellees that the schooner is responsible for fail-
mg to carry a light. In the case of The Os-
manii, 7 Notes of Cases, 507, the learned Judge
of the Admiralty says: ** That no question has
been more mooted and left more unsettled than
this — whether it is the duty of a sailing vessel
at night to show a light. Beyond all doubt,
it has been determined there is no such general
obligation; at the same time, there have been
occasions on which, for the sake of avoiding a
misfortune, which was in all human probabil-
ity likely to occur, it became the duty of a ves-
sd to show a light." In the present case, we
have not been able to discover any fact that
imposed the obligation upon the schooner to
do so. The night was moonlight; and though

Bee 21 How.

the light was occasionally obscured, the evi-
dence does not show that it was so, to a degree
that rendered the navigation of the bay at all
dangerous, if care, skill, and vigilance, had
been employed upon the different vessels.

The court is of opinion that the schooner
was discerned from the steamer in sufficient
time, and that the latter might have avoided
the collision by the exercise of proper care.

Decree affirmed.

Mr. Justice Daniel dissented for want of
constitutional power, in courts of the United
States, in admiralty.

ated— 13 Wall., 479 ; 1 Brown, 123, 266.

EDMUND RICE, Plff. in Er.,

THE MINNESOTA and NORTHWEST-
ERN RAILROAD COMPANY.
(See S. C, 21 How., 82-85J

Where cause toas dismissed at former term for
defect in return, motion to re-instate rtfused-^
final decision — unit of error functus officio.

Where a writ of error was returnable last term*
and it appearlng^ that there was no final Judgtnentr
the case was then dismissed for want of Jurlgdlc-
tion. A further transcript Is now presented, which
contains a final Jud^rment.

Held, that the motion to annul the judg'ment of
the last term, and re-instate the case, cannot be
granted.

It was judicially acted on and decided, by this
court. And when the term dcsed, that decision
was final, so far as concerned the authority and
Jurisdiction of this court under that writ.

Thewrit of error was functun ojffUiU); and if the

gartles desire to brinflr the record of the case again
efore this court. It must t>e done by another writ
of error.

Argued Dec. 17, 1858. Decided Dec. i8, 1858.

IN ERROR to the Supreme Court of the Ter-
ritory of Minnesota.
On the motion of Sir. Reverdy Johnsoiiv
of counsel for the defendant in error, to revoke
the mandate and annul the judgment of dis-
missal entered in this case, ^.
The case is stated by the court.
No counsel appeared for plaintiff in error.

Mr, Reverdy Johnson, for defendant in
error.

Mr. Chief Juetice Tajiey delivered the
opinion of the court:

This case was brought up, by a writ of error,
directed to the Judges of the Supreme Court of
the Territory of Minnesota, the writ being re-
turnable to the last term of this court. The
case was docketed and called for tri^ accord-
ing to the rules of the court: but upon inspec-
tion of the transcript, it appeared that there
was no final judgment in the court below, and
the case was, therefore, dismissed for want of
jurisdiction.

At a subsequent day in that tertn, a motion
was made by the plaintiff in error for a certio-
rari, upon affidavits filed, suggesting that
that there had been a final judgment m the
Territorial Court, although it had not been
correctly entered od the record. But the court

«5-86

SUPBBMB COUBT OF THB UnTTBD BTATBS.

DBC. TlBKM,

were of opinion that the affldaWts were not
sufficient to support the motion, and refused
the certiorari,

A motion has been made at the present term
to annul the order of dismissal made at the last
term, and to place the suit on the calendar in
the same order in which it would haye stood
if it had not been dismissed, but continued
over to the present term. And in support of
this motion, a transcript from the Territorial
Ck>urt has again been presented; and this tran-
script contains a final Judgment of the Supreme
Ck>urt of the Territory. It is certified by the
Clerk of the District dourt of the United States,
to whose custody the record and proceedings
in this case have been transferred pursuant to
an Act of Congress; and this transcript, amonff
other things, certifies that an amended order of
the Supreme Court of the Territory, reversing
the ju^g:ment of the inferior Territorial Court,
and ordering a judgment for defendants, and
an amended Judgment of the said court to the
same effect was on file in his office, trans-
ferred with the other proceedings in the case
from the Supreme Territorial Court.

But we tmnk the motion to annul the judg-
ment of the last term, and re-instate the case,
cannot be granted. The suit is a common law
action for a trespass on real property, and the
judgment of the court below can be brought here
for reyision by writ of error only. That writ was
issued by the plaintiif in error, returnable to
the last term of this court; and it brought the
transcript before us at that term. It was judi-
cially acted on, and decided by this court.
And when the term closed, that decision was
final, so far as concerned the authority and
jurisdiction of this court under that writ. The
writ "WiA functus otjleio; and if the parties desire
to bring tiie record of the case agsun before this
court, it must be done by another writ of error.
The former writ is not returnable to the pres-
ent term, and cannot, therefore, aooordinff to
the principles which goyem this common-law
writ, bring the record before us.

The case of The Palmyra, 12 Wheat, 1, has
been referred to, where a motion similar to the

g resent was granted by the court. And if that
ad been a case at common law, we might have
felt ourselyes bound to follow it, as establish-
ing the law of this court. But it was a case in
admiralty, where the power and jurisdiction of
an appellate court is much wider upon appeal,
than in a case at common law. For, in an ad-
miralty case, you may in this court amend the
pleadings, and take new evidence, so as in ef-
fect to make it a different case from that de-
cided by the court below. And the court
mi^ht well, therefore, deal with the judgment
ana appeal of the inferior tribunal in the same
spirit. But the powers which an appellate
court may lawfully exercise in an aamiralty
proceeding, are altogether inadmissible in a
common law suit.

The case in 8 Pet., 481, relates to cases and
questions of a different character from the one
before us. In that case the judgment of the
court at the preceding term was amended. But
the amendment was made to correct a clerical
error in this court, and make the Judffment con-
form to that which the court intended to pro-
nounce. But this is not a motion to amend,
but to reverse and annul the judgment of the

last term, which was passed upon full consid-
eration, with the case regularly and legally be-
fore us, as brought up by the writ of error.

We refer to these two cases because thej
have been relied on in support of the motion.
But, in the Judgment of the court, they stand
on very different principles; and the motion,
for the reasons above stated, must be over-
ruled.

Ctted-4I WaU., 442.

JAMES KEL8EY and THOMAS P.

HOTCHKISS, Flff$,inJBh'.,

ROBERT FORSYTH.

(See 8. C, 21 How., 85-68.)

OuUA V. FrenUn and 8uydam v. WUUameon
affirmed — ogreemArU cannot authame mode of
review — etate laws cannot authorize U, S.
Court to depart from rules prescribed by
Congress,

This case Is the same Inprlclple as that of Oulld
▼. Frontlo, 69 IT. 8., p. 280, affirmed In Suydam v.
WnilamsoD, 61 U. 8., p. 978.

The agreement of parties cannot authorize this
court to revise a judgment of an Inferior court in
any other mode than that which the law pre-
scribes.

Nor can the laws of a State, reffulatlnsr the pro-
ceedings of its own courts, authorize a oistrict or
circuit court sitting in the State to depirt from
the modes of proceedings and rules prescribed by
the Act of Congress.

(Bfr. Justice Wayne did not sit in this case.)
Submitted Dee. f^, 1868. Decided Dec. 28, 1858.

IK ERROR to the Circuit Court of the Unit-
ed States for the Northern District of .Il-
linois.

This was an action of ejectment brought in
the court below, by the defendant in error, to
recover a part of Peoria French claim No. 7 ; the
same that was before this court in the case of
Bryan v. mrrsyth, 80 U. S. (19 How.), 884.

On the final trial below, the case was sub-
mitted to the court without a jury, and the
court found for the plaintiff. Thereupon the
defendants sued out this writ of error.

A further statement of the case appears in
opinion of the court.

Mr. Cm BallaAce» for appellants:
The errors assigned are:

1. The court erred in refusing to dismiss
the cause for want of a bond for costs, before
the commencement of this suit.

2. It was error to try the cause without a
jury.

8. It was error to refuse a new trial at com-
mon law.

4. The court attached unjust and unreason-
able conditions to the order setting aside the
first judgment.

5. The court erred in refusing to grant a new
trial, nunc pro tunc, upon the agreement and
disclaimer tendered by defendants below.

Note.— Jurisdiction of federal courts^ not given by
consent. See note to Ck>v. of Georgia v. African
Slaves. 88 U. S. (IPet.), 110.

68 U. 8.

1858.

PSNHSTLVAHIA V. RwBNSL.

lOa-112

6. The court erred in receiving improper
evidence.

7. The court erred in ruling out proper evi-
dence offered by defendludts below.

All the above errors, I submit, are well as-
signed, and either of them is sufficient to re-
verse the judgment of the court below; but I
deem it unnecessary to discuss those various
points, or introduce authorities to sustain them,
because the facts of the case show clearlv that,
according to the doctrine established in the case
of Bryan v. Fbrsytli, 19 How., 884, the plaint-
iff was completely barred by the Illinois Statute
of Limitations, and because, also, the case was
tried by the court without a jury, which, ac-
cording to the decision in Oraham v. Bayne, 18
How., 60, was error.

Mr. Arehibald Williajna. for defendant
in error.

Mr. Chief Justice Taney delivered the
opinion of the court: ^

This is a writ of error to the Circuit Court of
the United States for the Northern District of
Illinois.

An action of ejectment brought bjr the de-
fendants in error against the plaintiff, for a
certain parcel of land described in the declara-
tion, and upon the trial the verdict and judg-
ment were for the plaintiff; a motion was after-
wards made to set aside the judgment and for a
new trial ; and the judgment was, accordingly,
set aside and a new trial granted upon the
terms mentioned in the transcript. In the pro-
ceedings upon this new trial, the parties agreed
to waive a trial by jury, and that both matters
of law and of fact should be submitted to the
decinion of the court. The case was proceeded
in according; to this agreement, and the court,
as the record states, found the issue in favor of
the plaintiff (Forsyth), and entered judgment
accordingly ; and to this decision, and to all the
rulings and decisions of the court in the pre-
vious stages of the cause, the defendants (Kelsey
and Hotchkiss) excepted and sued out a writ of
error to bring the case before this court.

It will be seen from this statement, that in a
common law action of ejectment the case was
submitted to ihe court upon the evidence, with-
out the intervention of a Jury, leaving it to the
court ts decide the fact, as well as the law,
upon the evidence and admissions before it.
The case, therefore, is the same in principle
with that of OuUdetal. v. Frontin, 18 How.,
135. And the doctrine in that case was re-
affirmed in Suydam v. WiUiavMon, 20 How.,
428, and the grounds upon which it rests fully
set iforth. It is unnecessary to repeat here what
was stated in these two decisions. It is suf-
ficient to say that the agreement of parties can-
not authorize this court to revise a Judgment of
an inferior court in any other mode of proceed-
ing than that which the law prescribes, nor can
the laws of a State, regulating the proceedings
of xXa own courts, authorize a district or circuit
court sitting in the State, to depart from the
modes of proceeding and rules pre'teribed by
the Acts of Congress.

Ihejuddt/ient of ihe Circuit Court must, there-
fore, be aJUrmed.

Cited-21 How.. 288 ; 1 Wall., 104 : 0 WaU., 429 ; 12
Wall.. J<lr 18 Wall.,346.347:91 n. S.. 614.

See 21 liow.

U. S., Book 16.

THE COMMONWEALTH OP PENNSYL-
VANIA, Plff. in Er., '

WILLIAM RAYENEL, Executor of Eliza
EoHNE, Deceased.

(See S. C, 21 How., 108-112.)

DomicU — question of taw and fact— acts and dec-
larations, when proof of

The question of domlcU U one of mixed law and
fact.

Tt Is for the court to Instruct the jury what con-
stitutes a domlcU, and for the Jury to apply the
law flrovernln^ It, to the facts as found by them.

The mere speaking of a place as a home, without
any aol showlngr an Intention to return to It, would
amount to nothlngr.

But If .acts and the langruagre concur, and are
continued for many years, they are conclusive of
the fact.

(Mr. Justice Watitb did not sit In this case.)
Argued Dee. 14, 1868. Decided Dec. 28, 1858.

IN ERROR to the Circuit Court of the United
States for the Eastern District of Pennsyl-
vania.

This action was brought in the court below,
by the plaintiff in error, against the defendant
in error, executor of the late Mrs. Eohne, to
recover the sum of $5,820.82, called a coUat- '
eral inheritance tax, assessed upon the estate
of the testatrix.

Mr. Kohne, the husband of Mrs. Eliza
Eohne, died in '.Philadelphia on the 26th of
May, 1839, and was buried there. At the time
of his death, he owned valuable real and per-
sonal estate in Philadelphia Citv and County,
and also in Charleston, S. C. Amon^ the
Philadelphia property was a large ana ele-
flAut .mansion house in Chestnut Street. Mr.
Kohne, at the time ot his death, also owned a
mansion in Charleston, S. C, in which he
and his wife resided during the winter. Both
mansions were furnished with servants, furni-
ture, plate, &cl Mr. Eohne also owned, at the
time of his death, a valuable country seat, with
thirty acres of land attached, close to the City
of Philadelphia, in Turner's Lane, and now
within the corporate limits of that city, which
was purchased by him in 1807, about the time
of his marriage, and during his lifetime was
sometimes occupied by Mr. and Mrs. Eohne,
and by Mrs. E., after his death.

Mr. Eohne devised his real estate, wherever
situate, to his wife for life (with some excep-
tions in Charleston, 8. C.) Her life interest
extended to the mansions referred to in Phila-
delphia and Charleston, and to the Turner's
Lane properiy in Philadelphia.

She did not visit Charleston the winter after
her husband's death, but spent a part of it in
Savannah. After that winter, however, she
resumed the routine which had existed some
years prior to her husband's death ; that is, of
spending from May to October in Philadelphia,
and from November to May in Charleston.

Mrs. Eohne continued to^reside alternately
in Charleston and Philadelphia, according to
the season of the year, until April 80, 1850,
when she left Charleston and came to Phila-
delphia, where she remained until her death,
March 16, 1852, at the advanced age of eightjr-
flve years and upwards. She was born m
Charleston, and was married there to Mr.

8 88

108-119

dUPBBMB OOXTBT OF THB UkITBD StATBS.

DSO. TSRll,

Eohne, then a domiciled merchant of that
city.

The trial below resulted in a verdict and
judgment in favor of the defendant; where-
upon the plaintiff sued out this writ of error.

A further statement of the case appears in
the opinion of the court.

Messrs. Samuel Hood and R. K. Seott»
for plaintiff in error:

For the purpose of this argument, the ex-
ceptions to the charge of the court may be
stated in this form, viz. : 1st. That the court
charged the jury as to part only of the evi-
dence, viz.: that of the defendant; 2d. That
the court charged the jury as to facts of .which
there was no evidence; Sd. That, in effect, the
court took from the jury the sole material fact
in the cause, viz.: the domicil of Mrs. Eliza
Kohne at the time of her death.

As to the first point, that the court charged
the jury as to part only of the evidence, viz. :
that of the defendant. The only question for
the Jury was. whether Mrs. Eliza Kohne, at
the time of her death in March, 1852, was
or was not domiciled in Pennsylvania. The
charge of the court, after statins: that, for the
purposes of this case, the fact that Frederick
Kohne, at the time of his death, was domiciled
in Pennsvlvania, is assumed, and that Mrs.
Kohne's domicil was necessarily his, while the
marriage existed ; adds that after his death she
was free to choose her own domieil. The
ciiarge then recites the defendant's evidence as
to Mrs. Kohne's domicil, but no reference
whatever is made in the charge to the evidence
adduced by the plaintiff, nor to any part of the
defendant's testimony, favorable to tlie plaint-
iff, on the question of Mrs. Kohne's domicil.

In the case of Smith v. Omdry, 1 How., 85.
the 8. C. of the U. S.. Chief JuUice Taney,
in delivering the opinion of the court, reversed
the Circuit Court of the District of Columbia,
on the ground that the court instructed the jury
on a part of the evidence only, leaving oui of
view other portions of it which the jury were
bound to consider in forming their verdict. It
should be left to the Jury upon the whole evi-
dence, where there is evidence of fault, to find
whether it existed. In QieerUeaf v. Birth, 9
Pet.. 292. 298. v99. the decision of the Circuit
Court of the District of Columbia was reversed
on similar grounds.

As to the second point, that the court charged
the Jury as to the facts of which there was no
evidence:

" The fact (says the charge) that she submit-
ted to illegal exactions of tax j^therers hero,
rather than be annoyed with litigation, should
not be suffered to weigh against the acts and
declarations of twenty yeai*s of her life. Tax
gatherers may impose on old ladies, but they
cannot change their domicil for them against
their will; nor is it any reason for an nlegal
exaction against the ebtate of the deceased, that
the tax gatnerers of Pennsylvania have hereto-
fore wronged her with impunity."

Here is the assumption of facts without any
evidence on which to base them.

In Bradley v. Grosh, 8 Pa. St., 49, it was
held error to submit a fact or question to the
Jury, of which there is no evidence.

See, also. Stiru v. 8herk, 1 W. &8., 195;
Ii-uinr. Shoemaker, 8 W. & S., 76; Jones v.

Wood, 16 Pa., 25. 42; Snyder v. WtU, 15 Pa.,
59: BoachY. HuUngs, 16 Pet.. 819.

As to the third point, that in effect the court
took from the Jury the sole material fact in the
cause, viz. : the domicil of Mrs. Eliza Kohne
at the time of her death.

See Georgia y, Brailsford, 8 Dall., 4; New-
bold V. Wnght, 4 Rawle, 195; Brownfleld v.
Brownfldd, 12 Pa., 186; Baker v. Lewis, 4
Rawle, 856; Sampson v. Sampson, 4 S. & R.,
829; Tracy Y. Swartwout, 10 Pet., 96.

Mr. B. Oerhard* for defendant in error:
Domicil is always a mixed question of law
and fact, and where a court charges a jur^
upon such a point, a discussion oi the testi-
mony must be intimately intermixed with the
discussion of the law. In the present case. His
Honor, who tried the cause, told the Jury at the
commencement of his charge, that it was ** for
the jury to apply the principles of law laid
down « by the court to the facts as found by
them," and again, that ** the court had no right
to dictate to them on the facts which they were
bound to find on their own responsibility."
His Honor next proceeded to assume, as against
the defendant, the fact of Mr. Kohne's domieil
at the time of his death, and then indicating to
ih'e Jury what facts they must find, if they gave
a verdict for the plaintiff, he declared that as a
matter of law. if the jury believed certain un-
contradicted testimony, their verdict should be
for the defendant; concluding bf the expres-
sion of a hope previously entertained that tue
plaintiff would have abandoned the claim, after
hearing the evidence for the defendant, as the
contest must be fruitless, if the J uiy believed
that testimony. Now, in all this there seems
to me to have been a scrupulous care observed
by the judge, in a case where there was no
confiict of testimony, to avoid even the appear-
ance of a formal interference with the consti-
tutional province of the Jury.

Domicil '* is the conclusion of law on an ex-
tended view of facts and circumstances."

Rush, President, J., Guier v. 0* Daniel, 1
Binn.. 849, note a, cited in Phillim. Dom.,
A pp.. XT., p. 209. Bempdev. JohnsUnie; Gra-
ham V. Johnstone, 8 Ves., 201.

**The question of domicil prima facie is
much more a question of fact than of law."

Domicil is defined in Guier v. 0*Daniei, 1
Binn., 849, as **a residence at a particular
place, accompanied with positive or presump-
tive proof of continuing it an unlimited time."
This definition Judge Grier, in his chaige to
the Jury in White y. Brown, 1 Wall., Jr., 262,
says, "combines, it is probable, accuracy with
brevity,' beyond any other.'* He also says
** that no one word is more nearly synonymous
with the word 'domicil*, than our word 'home.' "
Phillimore, in his Treatise on the Law of Dom-
icil, p. 25, reduces the kinds of domicil to
three: 1. The Domicil of Origin or Birth. 2.
The Domicil by Operation of Law. 8. The
Domicil of Choice, where one is abandoned
and another acquired. One of these three
kinds each person must have.

Phillim.. p. 21 ; Ora^tfordY. Wilson, 4 Barb..
504; BartlettY. New York, 5 Sandf., 44; Ab-
ington v. N. Bridgewaier, 28 Pick., 178; Bue
High, Appellant, 2 Doug. (Mich.). 523.

A person may acquire a second place of rcsi-

1858

PlEKVBTLTAinA T RaTSKSL.

108-118

denoe, and occupy it alternately with the first.
This makes no change in his domicil.

Btirtleit v. New Yun-k, 5 Sand., 44; Phillim.
Dom., 112, citing the case of Munroe y. Mun-
roe, 7 C, A P., 842.

** The having a liouse and an establishment
in London, is perfect! jr consistent with a dom-
icil in Scotlana." This fact existed in Somer-
viUe Y, SoniernUe. 5 Ves.. 750, and in Warren-
der V. Warrender, 9 BUgh, N. R.. 103, 103;
see, also. Harvard College v. Qore, 5 Pick., 870.

The question in the present case is one of the
third kind of domicil — that of choice. " Every
person »fii juris, ia at liberty to choose his dom-
icil. and to change it accoraing to his inclina-
tion."

PhillinL. 98.

The question is not whether the facts con-
nected with Mrs. Kohne's residence in Phila-
delphia, for a portion of the year and dying
there, if viewed apart from the rest of the evi-
dence, would constitute Philadelphia her dom-
icil; but whether her whole course of life will
support her expressed intention of making
Charleston her domicil. Tn Thorndike v. Tm
City of Boston, 1 Mete, 248. CA., J, Shaw say:
"It may often occur that the evidence of facts
tending to establish the domicil in one place,
would be entirely conclusive, were it not for
the existence of facts and circumstances of a
still more conclusive and decisive character
which fix it, beyond question, in another."

It will be remembered that Mrs. Kohne's
domicil of origin was in Charleston, and fewer
circumstances are requisite to show that the
domicil of origin has reverted, than that a new
domicil has been acquired.

Phillim. Dom., 104; WhiU v. Brown, 1
Wall.. Jr.. 265; charge of Grier, Jtistice.

"Where a party has two residences at differ-
ent seasons of the year, that will be esteemed
his domicil which he himself selects, or de-
scribes, or deems to be his home."

Uairston v. HcUrston, 27 Miss., 704; Story
Confl. of Laws, sec. 47; Shelton v. Tiffin, 6
How., 163; Ennis v. 8mUh, 14 How., 400.

The fact of Mrs. Kohne's dying in Philadel-
phia, affords no presumption wluttever of her
domicil being in that city.

Harvard (SfUege v. Gore, 5 Pick.. 375.

The judge below did not take from the jury
the consideration of the question as to Mrs.
Kohne's domicil at the time of her death; but,
on the contrary, treated it, as it clearly is. as a
mixed question of law and fact; and carefully
and scrupulously, though the facts were un-
disputed, instructed the jury that they must
pass upon the evidence of those facts, but if
they believed it, that it established Mrs.
Kohne's domicil, at the time of her death, to
have been Charleston.

In conduction, it is submitted that the decis-
ions fully sustain the views of the defendant
in error.

The court may i^ive their opinion on matters
of fact to the jurv, being careful to distinguish
between such opinions and those on matters of
law; the former being entitled to such influ-
ence only as the jur^ may think proper, the
latter being conclusive.

Games v. Stiles, 14 Pet., 322, Tracy v. Sioart-
wout, 10 Pet.. 80.

*' A case will not be reversed on account of

See 21 How.

an expression of opinion by the court, as to
which of certain witnesses are most entitled to
credit."
Port&r V. SeUer, 28 Pa., 424.

i/r. JusUee Nelson delivered the opinion of
the court:

This is a writ of error to the Circuit Court
of the United States for the Eastern District of
Pennsylvania.

The action was brought by the State of
Pennsylvania against the defendant, executor
of the late Mrs. Kohne, to recover the sum of
$5,820 23, called a collateral inheritance tax,
assessed upon the personal estate of the testa-
trix. By the law of Pennsylvania, where the
property' of the deceased passes to his or her
collateral heirs, or to strangers, either by the
law cx}acerning intestate estates, or by will, it is
made subject to a specific taxation for the
benefit of the State. This tax is five per cent-
um on the clear value of the estate. Brightly
V. Pardon, p. 138; Act 22d April, 1846, sec.
14. And according to the construction of these
Acts imposing the tax, it is held, if a decedent
be domiciled in the State at the time of his or
her death, stocks of other States, or of corpo-
rations of other States, and debts due in other
States, in the hands of the executors or admin-
istrators are liable to this tax. Shjort, estate of,
4 Ilarr. (16 Pa. St.), 63; Halroyd v. Humphrey,
18 How., 69.

But if the domicil of the deceased be not in
Pennsylvania, then the estate is not subject to
the tax.

Mrs. Kohne died in the City of Philadelphia
in 3Iarch, 1852, and the question in the court
below was. whether or not she was domiciled
in Pennsylvania at the time of her death, or in
the State of South Carolina. The jury, under
the charge of the court, found a verdict for the
defendant.

The case is before us on four exceptions
taken to the charge of the court.

The first three it is not material to notice fur-
ther than to say, that the first two are founded
upon a misapprehension 6f the instructions
given to the jury ; and the third is not main-
tainable, as the instruction in the connection
in which it is found is unobjectionable.

The fourth exception is, that the court, in
the charge, took the fact of domicil from the
Jury.

This exception, we think, is founded in a
misapprehension of the instructions given. The
court, after staling to the jury that the question
of domicil was one of mixed law and fact, ob-
served, that it was for the court to instruct
them what constituted a domicil, and for the
jury to apply the principles of law governing
It to the facts as found by them; that the jury
had no right to disregard the law as laid down
by the court, and the court had no right to
dictate to them as respected the facts, which
they must find on their own responsibility.
The court then stated to the jury the principles
of law applicable to the question of domicil. to
which no exception has been taken. Also,
that as it had been admitted Mr. Kohne. the
husband, who died in Philadelphia in 1829,
had his domicil in Pennsylvania at the time of
his death, the domicil of the wife must be taken
as in that State at the time, and submitted

387-200

SlTFBXiaB GOUBT OF THB UnITBD Bt^TBB.

Dec. Tsbm,

the question whether or not she had since
changed it to the State of South Carolina; and
then, after referring to the leading facts given
in evidence, and rened on to establish a change
of domicil, observed, that if the juir believ^
this evidence, the domicil of Mrs. ^ohne was
in South Carolina.

The court further say, that the mere speak-
ing of a place as a home, without any act show-
ing an intention to return to it, would amount
to nothing. But if acts and the language con-
cur, as proved by the witnesses in the case, it
would be a denial to the deceased of the right
to choose her own domicil, not to allow her
acts and declarations, continued for many
years, to be conclusive of the fact.

We perceive nothing in the instructions of
the court, or in the view of the case as pre-
sented to the jury, by which the question of
domicil, so far as it depended upon the facts,
was taken from the juir. The evidence was
very strong in support of a change of domicil
by Mrs. Kohne after the death of her husband,
and, if believed by the jury, it was not too
much to say, as matter of Jaw, that they should
find for the defendant.

The judgment of the court behw is afflf*msd,

Mr. Justice Dsriiiel, dissenting:

I cannot concur in the opinion of the court
in this case.

Had I been acting as a juror upon the trial
o( this cause, it is more than probable that the
conclusion formed by the jury, upon the evi-
dence disclosed by the record, is identical with
that at which I should have arrived. And.
further, had it been within the legitimate prov-
ince of the court, in the attitude of the case
before it, to declare what ought to be the de
ductions from facts either established in evi-
dence, or presumed or supposed by the court
to have been established, or even from facts ad-
mitted by the parties on the trial, then exception
to the charge of the court in this case could not
properly te taken. The objection to the
charge, and a fatal objection to my mind, arises
from the principle that the court had no au-
thority to pass upon or to give any opinion in
relation to facts, either established by testi-
mony or admitted or presumed, as to what
those facts amounted to. or as to the correctness
or absurdity of any deduction which the jury
miffht draw from them. The power of the
court was limited absolutely to the legality or
relevancy of the testimony. The weight or
effect of the testimony, or the deductions to be
drawn from it, were peculiarly and exclusively
within the province of the jury; and the court
had no power to inform them,'or intimate that
evidence,either exhibited in reality or presumed,
should be construed in any particular way,
or to say to them a priori that an interpretation
different from that of the court, as to the
weight of evidence, would be absurd. Should
the conclusion of the jury upon the weight of
evidence be never so absurd, still it is the pe-
culiar province of the jury to weigh that evi-
dence, aud to draw their own independent in-
ferences from it; and the only legitimate cor-
rective is to be found in the award of a new
trial, or by a case agreed, or a demurrer to evi-
dence. If the court can a priori direct the
jury what the evidence, either made out in

proof or hypothetically stated, really amounts
to, the trial by jury becomes a cumbersome for-
mality, and had as well, nay, had better be
dispensed with, inasmuch as in the solemn ad-
ministration of justice there should be as little
that is useless, burdensome, or pretended, as
possible. To show the character of that por-
tion of the charge of the court regarded as ex-
ceptionable, it is here inserted, as follows, viz. :

** If the jury find, that after his death (the
death of the husband) she (Mrs. Kohne) re-
turned to her former domicil in Charleston,
took possession of the house and servants de-
vised to her, lived in that house six or seven
months of every year, calling it her home,
spending only a few weeks in the spring and
fall in her house here, and the remainder of the
summer at watering places; coming north in
the summer for the sake of her health, always
intending to return to her house in Charleston ;
that she was hindered returning the last time
from sickness; if she consulted counsel how
she might avoid giving any pretense to the tax
^therers of Pennsylvania to treat her as dom-
iciled here; if she carefully denied at all
times her citizenship in Philadelphia, even to
erasing it from printed lists of her church do-
nations, as the assertion of a falsehood ; if she
refused to have some of her furniture removed
here, for fear such a fact would be seized up-
on, after her death, for the purpose of asserting
her domicil here; if she called herself, in her
will, 'of Charleston;' if, when absent from
that place, she always spoke of returning to it
as her home, and did return to it as such, till
hindered by sickness — if the jury believed this
evidence of defendant's witnesses, testimony
which has not been contradicted or denied, it
would be absurd to say her domicil was not
where she asserted it to be, to wit : in the City
of Charleston."

Regarding this portion of the charge as tend-
injT to confound the powers of the court and
the jury, I think that the judgment of the Cir-
cuit Court should be reversed, and the case re-
manded for a new trial.

BENJAMIN FORD. Plff. in Er..

JOHN 8. AND HERMAN WILLIAMS.

(See S. C, 21 How., 287-290.)

Principal, not liable for agent's dealings on his
oton credit — tchen liable, if agency is undis-
closed— liable, though not natMd in contract —
may show agent toas acting for lUm — this
proof does not contradict the writing — but
agent cannot thus contradict the writing.

NOTK.— Ufa'tt and liability of undisclosed principal
on euntraet of agent, made in agent^s name. Rule
as to neg*ttiable instruments.

The prinolpal is ordinarily entitled to the same
remedies against third persons In respect to acts
and contracts of an agent as if they were made or
done with him personally. 8tory on Agency, sec. 420;
Brewster v. Saul, 8 La., 206: 2 Stark., 443; T^lnt«r
V. PrendergHst, 3 Hill, 72; Bassc^tt v. Lederer, 1
Hun, 274 ; 8 T. & C, «71 ; lisley v. Merriam. 7 Cush.,
242; Rarry v. Page, 10 Gray. 998: Small v. Atwood,
1 Younge. 407, 452; Palcy, Ag., 333.

The rule is the same though at the time of enter-
ing Into the contract, the principal is unknown to
the party contracting and is undisclosed by the

62 U. S.

1858.

FoBD T. Williams.

287-290

If a party prefers to deal with the ngrent personal-
ly OD nis own crc^dit, he will not be allowed after-
warda to cbargre the principal.

But when he deals with the a^ent, without any
disclosure of the fact of hisasrency, he may elect to
treat the after-discovered principal as the person
with whom he contracted.

The contract of the a^ent is the contract of the
prlncipalt and he may sue or be sued thereon,
tiiou^n not named therein.

Notwithstanding the rule of law that an agree-
ment reduced to writing may not be contradicted
or varied by parol, it is well settled that the prin-
cipal may snow that the agent who made the con-
tract in his own name was acting for him.

This proof does not contradict the writing; it
only explains the transaction.

But the agent who binds hlmnelf will not t>e al-
lowed to contradict the writing by proving that he
was contracting only as agent, while the same evi-
dence will be admitted to charge the principal.

<3fr. Justice Watns did not sit in this case.)

Argued Dee, 16, 1868. Beaded Dee. 28, 1868.

IN ERROR to the Circuit Court of the Unit-
ed States for the District of Maryland.

This w&s an action of assumpsit brought in
the court below, by the plaintl£f in error, to
recover damages on a certain contract signed
by the defendants.

The only question to be reviewed is, whether
assuming the contract in question to have been
made for the benefit of the plaintiff, without
any disclosure to the defendants as to his inter-
est, he can maintain a suit in his own name.

Messrs. George William Brown and F.
W. Brnne* Jr., for plaintiff in error:

The plaintiff in error will contend that the
action was properly brought by him in his own
name, and that the decision of the Circuit
Court should be reversed; and in support of
this proposition, he relies upon the following
authorities:

N. J. J^eam Nav. Co. ▼. Merchants' Barik, 6

How., 381; 8aJm<m Mfg. Co. v. Goddard, 14
Wow., 455; Story on Agency, sec. 161 ; Sims v.
Bo7id, 5 B. & Ad., 893; Iiiggins v. Senior, 8
Mees & W,, 834; BeekJmm v. Drake, 9 Mees.
& W., 78; 11 Mees. & W., 815; Bank v. Ly-
man, 20 Vt.. 678: WiUiams v. Bacoti, 2 Gray,
887; Batemanv. Phillips, 15 East., 272; Eikins
V. B. A M. R. R. Go.,\% N. H., U2; Hunting-
ton V. Knox, 7 Cush., 874.

Mr. J. Nelson, for defendants in error:

The sole question to be reviewed is, whether,
affsumiug the contract to have been made for
the benefit of the plaintiff without any disclos-
ure, to the defendants, of his interest, he was
competent to maintain a suit in his own name.

That the court below committed no error in
holding that he could not, the defendant in er-
ror will endeavor to maintain by reference to
the following authorities:

U. 8. V. Parmele, 1 Payne, 252; Neiccomb v.
Clark, 1 Denn., 227; West Boylston Mfg. Co. v.
Searle, 15 Pick., 225; 1 Pars. Cont., 48, note;
2Bouvier'sIn8t.,80.

Mr. Justice Gh:>ier delivered the opinion of
the court:

The single question presented for our decis
ion in this case is, whether the principal can
maintain an action on a written contmct made
by his agent iii his .own name, without disclos-
ing the name of the principal.

It is not necessar}' to the validity of a con-
tract, under the Statute of Frauds, that the
writing disclose the principal. In the brief
memoranda of these contracts usually made by
brokers and factors, it is seldom done. If a
party is informed that the person with whom
he is dealing is merely the agent for another,
and prefers to deal with the agent personally on
his own credit, he will not be allowed after-

scent and the party deals with the agent supposing
bim to t>e the sole principal. See authoriuea last
cited and Williams v. Winchester, 19 Mart., 22 ; Lev-
erick ▼. Meigs, 1 Cow., 645, (MKHM»: Hioks v. Whit-
more, 12 Wend., 618 ; Walter v. Ross, 2 Wash., 283 ;
Orojan v. Wade, 2 Stark., 443 ; Graham v. Duck wall,
8 Bush., 12; Foster v. Smith, 2 Goldw., 744; Wood-
ruff V. McGebee, 80 Oa., 158; Culver v. Blgelow, 43
Vt., 249. ^

While the principal is entitled to the advantages
or beneflts to t)e derived irom contracts made on
hia behalf by his agent, he also takes all the burdens
and disadvantages connected with the contract.
And if the contract of the agent was obtained bv his
fraud, misrepresentation, or warranty, the princi-
pal will be aJffected by the conMouences, and the
other party may interpose any defense that would
be available if the principal had done precisely
what was done by his agent. Elwell v. Chamk)er-
laln. 81 N. T., 611; Veazie v. Williams, 49 U. S. (8
How.). 184, 157.

If the name of the principal is not disclosed, and
the agent enters into the contract as though made
for himself, the principal,if he assumes the right to
enforce the contract, must take it subject to all the
equities which could be enforced against the
agent. Talntor v. Prendergast, 3 Hill, 72 : Leeds v.
SUrine Ins. Co.. 19 IT. 8. (6 Wheat.), 665: Gibson v.
Winter, 5 B. & Ad., 96 ; Traub v. Mtlliken. 67 Me., 63 ;
George v. Clagett, 7 Term, 850: 3 Bos. ft P.. 490; 2
Oiinea. 296 : Coates v. Lewes, 1 Camp., 444 ; GilMon
V. Winter, 5 Bam. ft Ad., 96.

When the agent contracts for carriage of goods
without disclosing principal, latter may recover if
goods are lost. 12 Minn.. 412.

If the agent is the only known or supposed prin-
cipal the person dealing with him will be entitled
to the same right of set-off as if the agent were the
true and only principal. Coates v. Lewes, 1 Camp.,
444; Straoey v. Deey, 7Term,36l, n.; Carrv. Hinch-
Hff, 4 Bam. ft Cress., 547 ; Taylor v. Kymer, 3 Barn,
ft Ad.. 320 ; Baring v. Corrie, 2 Barn, ft Ad., 137 : Gib-
bee 21 How.

son V. Winter, 5 Bam, ft Ad., 96 ; Young v. White, 7
Beav., 506.

Whatever may have been the form of the con-
tract, unless under seal ; and even in that case, if it
has been ratified by the plaintiff, the plaintiff may
show even by oral evidence that a party who exe-
cuted it, although apparently as the principal, did
so as the agent of plaintiff; and upon such evi-
dence the plaintiff may recover notwithstanding
the Statute of Frauds applies to the contract and re-
quires it to be in writing. Brigg v. Partridge, 64 N.
v., 357; Hubbert v. Borden, 6 Whart., 79 ; Nash v.
Tourne.72 U. 8. (5Wall., 708; Salmon Falls, ftc, Co.
V. Goddard. 55 U.S. (14 How.), 446; Eastern K. K.
Co. V. Benedict, 5 Gray 561 ; Alexander v. Moore,
19 Mo., 143; Benj. on S., sees. 210, 219, n.

A principal may he charged upon a written parol
executory contract entered Into bv an agent in his
own name, within his authority, although the name
of the principal doca not appear in the inntrument ,
and was not disclosed, and the pai'ty dealing with
the i^cnt supposed he was acting for hlmselt ; and
this doctrine obtains as well in respect to contracts
which are required to be in writing, as to those
where a writing is not essential to their validity.
Higgins V. Senior. 8 M. ft W., 834 ; Trueman v. Lo-
der, 11 A. ft E4 594 : Dykers v. TownBend,24 N. Y.,
61; Coleman v. First Nat. B'k of Elmira, 53 N. Y.,
803; Huntington v. Knox, 7 Cush., 371; Eastern U.
R. Co. V. Benedict, 6 Gray, 666 ; Hubbert v. Borden,
6 Whart., 91 ; Browning v. Provincial Ins. Co., 5 L.
K. <P. C), 263 : Calder v. Dobell, 6 L. U. (C. P.), 486;
Story on Agency, sec. 148, 160.

Persons dealing with negrttiable Instruments are
presumed to take them on the credit of the parties
whose names appear upon them ; and apcr8<m not a
party cannot be charged upon proof that the osten-
sible party signed or Indorsed as his agent. Barker
V. Mech's Ins. Co., 3 Wend. ,94 ; Pentz v. Stanton, 10
Wend., 271 ; DeWitt v. Walton. 9 N. Y., 571 ; Stack-
pole V. Arnold, 11 Mass., 27 ; Peckham v. Drake, 9 M.
ft W.. 79; Eastern R. R. Co. v. Benedict, 5 Gray, 566.

lia-126

SUFBBMB CotTRT OF THE UnTTBD St^TBS.

Dbc. Tbrh,

wards to charge the principal; but whea he
deals with the agent, without any disclosure of
the fact of his agency, he may elect to treat the
after discovered principal as the person with
whom he contracted.

The contract of the agent is the contract of
the principal, and he may sue or be sued there-
on, though not named therein; and notwith-
standing the rule of law that an agreement re-
duced to writing may not be contradicted or
varied by parol, it is well settled that the prin-
cipal may show that the agent who made the
contract in his own name was acting for him.
This proof does not contradict the writing; it
only explains the tilinsaction. But the agent,
who binds himself, will not be allowed to contra-
dict the writing by proving that he was con-
tracting onlv as agent, while the same evidence
will be admited to charge the principal.
" Such evidence (says Baron Parke) does not
deny that the contract binds those whom on its
face it puports to bind ; but shows that it also
binds another, by reason that the act of the
agent is the act of the principal." See Higgins
V. Senior, 8 MeeA & Wels.. 843.

The array of cases and treatises cited by the
plaintiff's counsel shows conclusively that this
question is settled, not only by the courts of
England and many of the States, but by this
court. See New Jersey Steam Nai>, Co. v. Mer-
chant Bank, 6 How., 881, et cos, tb. cU.

The judgment of the court below, is therefore,
reversed, and a venire de novo awarded.

Cited-3 WaU., 108, 104 : Deady, 6, 18, 149 ; 1 Sawy.,
640.

THE COVINGTON DRAWBRIDGE COM
PANY, AND RICHARD M. NEBEKER,
AppU., ^

ALEXANDER O. SHEPHERD et al.

(See S. C, 21 How., 112-12tt.)

Court may appoint receiver of toUs and incomes
of a bridge, to pay judgments against bridge
company, after sale on execution.

Writs of fi. fa. were levied on the Covington
bridge and the Marshal sold the rents and profits of
the same for the term of one year, but the keeper
of the bridge refused to surrender possession.
Those interested filed their bill, praying that the
court should appoint a receiver to take possession,
and receive the tolls and incomes of the bridge, and
apply them to discbarge the Judgments.

Held, that the court below had power to cause
poesessioQ to be taken of the bridge ; to appoint a
receiver to collect tolls, and pay tnem into court,
to discharge such Judgments.

The bill alleges that '*the Covington Drawbridge
Company, of Covington, is a corporation and citi-
zen of the State oflndiana;" held, that the aver-
ment of citizenship was sufficient. «

Submitted, Dec. 14, 1868. Decided Dec. £9, 1858.

APPEAL from the Circuit Court of the
United States for the District of Indiana.
*~ The history of the case and'a statement of
the facts appear in the opinion of the court.

Mr. O. H. Smith* for appellants:

1. The averment in the bill of citizenship, is

not sufficient to give jurisdiction to the court,

especially as Che averment in the declarations

at law upon which the bill is founded and the

equity claimed, do not give jurisdiction to the
court.

The averment in the declarations as to citizen-
ship of the defendants, is as follows:

The plaintiffs, citizens of Ohio, complain
a^inst the '* Covington Drawbridge Company,
citizens of the State of Indiana."

This averment of citizenship of the' Cor-
poration is insufficient to bring the case within
the jurisdiction of the court, as decided bv this
court in the case of The La Fayette Ins. iJo. v.
French^ 18 How., 404.

2. The judgment of law being rendered by
the same court between the same parties, and
the court having no jurisdiction owing to the
defect of citizenship as shown by the declara-
tions, should not have been admitted in evi-
dence in support of the bill between these par-
ties, who were bound to take notice of the de-
fect of jurisdiction, however the law may ^ if
offered collaterally between other parties.

8. The remedy at law is ample, and a court of
chancery will not take jurisdiction.

Coe V. Turner, 5 Conn., 86: Wiswall v. Hall,
8 Paige, 813; Bees v. Paj-ish. 1 McCord, Ch.,
59: Bird v. Holabard, 2 Root. 85; WoUioU v. Sul-
livan, 6 Paige, 117; Baker v. Biddle, Bald., 894.

4. But as the further question may arise, and
be deemed by the court important to be de-
cided, although I cannot so consider it in this
case, where the property levied upon is amply
sufficient; that is, whether the franchise can be
levied upon with the bridge, and the whole
property appraised and sold upon the execu-
tion at law. I maintain the affirmative of this
question, which, I admit, is one of much impor-
tance to the credit of corporation securities, as
well as to the rights of their creditors. The
question is, substantially, whether the general
execution laws of the State of Indiana shall be
applied in all cases between debtor and credit-
or, on judgments at law, including corpora-
tions, new cases as they arise, as welfas old ; or
shall an exception, not in the law, exempting
from execution certain property ef corpora-
tions, be made by the court.

All corporations are said to have a franchise,
but the ordinary rights of corporations are not
parts of the eminent domain. The privilege to
have a common name, and common seal, a per-
petual succession, and by such common name to
sue, to contract, to hold real estate, and to sell
the same, or to make by- laws for the govern-
ment of the members. These privileges are no
part of the eminent domain, but only exten-
sions to individuals collectively, of rights apper-
taining of common right to each.

Mr.JusticeWoodb\iry,in6 How.,539,540; TTm*
Bicer Bridge v. Dix, says: "The laws of the
land are virtually a part and condition of the
grant itself, as much as if inserted in it toti-
dem verbis."

Towns V. Smith, 1 Wood. & M., 184; 1 How.,
819; 2 How., 608, 617; 8 Story, Const.. 1377, 8.

It is on this principle that the exercise of
the eminent domain over franchises has been
sustained; otherwise such exercise would be a
breach of the contract implied in grant of the
franchise, and a violation of the Constitution of
the United States.

West River Bridge Co. v. Dix, 6 How., 507;
EnJUld ToU Br. Co. v. Hart. <£ N. H. R., 17
Conn,, 40; S. C, 2 Amer. R. R. Cases, 69; S.

62 U. S.

185S.

Covington Drawbridoe Co. v. Shepherd.

111^-1 36

C, 95; Beekman v. 8ar. & SeJien, R, R. Co., 8
Paige. 45.

In Protidenee Bank v. BUUngs, 4 Pet.. 514,
it is said by Ch, J. Marshall: '*Tbe great ob-
ject of an incorporation is, to bestow ttie char-
acter and properties of individuality on a col-
lected and changing body of men. Any priv-
ilege which may exempt it from the burdens
common to individuals, do not flow neceasarily
from the charter, but must be expre&sed in it,
or they do not exist." In other words, corpo-
rations, unless expressly exempted, are subject
to all the burdens imposed by the laws of the
land on individuals. The rule is not to be con-
fined to cases within the eminent domain, or to
the taxing powers. It applies to all cases, to
which, in the opinion of the legislative power,
its application is necessary for the public good.
A franchise may or may not be a portion of the
eminent domain. But a franchise is property:
"We are aware of nothing peculiar to a fran
chisc which can class it higher, or render it
more sacred than other property. A franchise
is property and nothing more. It is incorpo-
real property, and it is so defined by Blackstone,
2 Com., ch. 3, p. 20."

Wetft River Bridge Co. v. Dix. 6 How., 534;
seethe opinion of Justice Woodbury, same case,
541, 542.

As property, a franchise may be divided,
leaded, mortgaged, sold (Qunuin&r on Tolls, 106
110; 6 Barn. & C. 7U3. 5. 875; 8 Maule & S.,
247; 1 Comp. & J., 57); and it is property by

S-ant, taken subject to the general laws of the
nd in force at the time of the grant, at least.

The question now arises: *' Is a franchise
subject to execution at law by the laws of Indi-
ana?" The property, rights, credits and effects
of the defendants, are subject to execution. '* 2
Rev. Stat, of 1852, sees. 134. 433. There is only
one exception, and that does not exempt a cor
poration debtor or its franchise. By sec. 438.
a debt can be levied upon and sold only when
**given up by the defendant;" but no property,
either corporeal or individual, is exempteii, ex
cept a limited amount of personal property in
favor of families: and such has at all times
been substantially the law of the State of Indi-
ana. Franchises are not perHonal propety, and
of courbe could not Ije sold in England by a. /I.
fa. as goods and chattels. But undoubtedly
the rents and profits of ferries, and markets,
and mills, and the rents and profits of other
real estate, have always t)een subject to seizure
in England.

In Indiana, if on a judgment against the
owner of a ferry, you sell the land, the ferry
right will pass to the purchaser, with the land,
as it is appendant thereto and cannot exist
without it. But in Indiana there must be an ap-
praisement of the property, and that assess
ment will be of the real estate and the right to
exercise the franchise, on the rents and profits
being first valued, and first sold, as the fran
chise held by an individual in a mill, or ferry,
is subject to sale with the property, and descends
to heirs. Why do not the same principles ap-
ply to a toll bridge held by a corporation,
where the lesal tolls are fixed by law, as in this
ease? The decision of the court in the case of
Ths West River Bridge, 6 How., 533, is referred
to as directly in point.

If it were shown that corporations in Indi-
See 21 How.

ana are exempt from the Execution Laws of the
State, and as such protected in their property
from levy and sale, and that consequently they
form an exception to the general laws that
govern other debtors, relieving them from the
payment of other debts, there would he an end
of Ithe question; but as such is not the case, it
is submitted that their property, including the
franchise, is subject to appraisement and sale,
as was done in the case at law, and therefore
the appellees have no equity on that ground
alone, and the decree of the Circuit Court
should have dismissed the bill at the cost of the
complainants below

I maintain, further, that the appellants, be-
ing the execution defendants at law, are the
only party that can raise the question, whether
this property can be sold at law; and as the^ in-
sist that it shall be sold, it does not lie within
the appellees, the execution plaintiffs, to say
that the property in question was not subject
to be sold at law.

Mr. R. W. Thompson, for appellee :

As the Company is alleged to have been in-
corporated in Indiana, to be a citizen of Indi-
ana, and to have built the bridge authorized bj
the charter in that State, and exercised their
corporate powers there, and one of the corpo-
rators \h expressly alleged to be a citizen of ihat
State, it is equivalent to an allegation that all
the corporators are citizens of the State within
the decinions of this court.

LeUon'n case. 2 How.. 497; MarHhaWn ca^. 16
How., 314. La Fayette Ins. Co. v. French, 18
How., 404.

It also appears that the appellant supposes
that advantage may be taken of the supposed
defective averment of citizenship of the defend-
ants, in the declaration against them, upon
which the judgments were taken.

Upon thlH point the counsel cited:

Union Inn Co. v. Ongoffd, I Duer, 707; J^otdf
V. 6% Stetimb'tnt (,tmfmnp. 7 M.. G & S., 103;
Freeman y Machias. dx . Co.. 38 Me , 343: Peo-
ple v. RfirinstD**od, <fcc.. Br. Co.. 20 Barb.. 618:
iJ/irrw' case. 4 Blackf.. 2B7; Riehardstfti*8 CRf*e,6
Blackf., 146; Ex parte Watkina, 3 Pit., W7.

The fourth assignment of errors, that the
court erred in overruling the demurriT to the
original bill, in effect raised for the considera-
tion of the court the whole question in the
ca^^e, viz. : has the Court of Chancer}' juris-
diction to appoint a receiver of the rents and
profits of a corporation defendant which is in-
solvent, or has no available real estate except
that which is derived from the use of its fran-
chise? That the court has such power, and
that it has at all times been exercised for the
advancement of iustice, the repeated decisions
of the courts will show.

The case of Fripp v. The Chard Railroad
Company, 21 Eng. L. & Eq., 58, is an author-
ity for all we ask here.

It appears from the bill in this case, and is
not denied, that all the possible ways or means
which the complainants have of making their
debt or judgments, is out of the defendants'
bridge. Th'at is all the property the defendants
have. They say: "There is the bridge, take
it." If it was clear that the plaintiff could re-
gard the bridge as real estate, and sell it under
the Indiana Execution Laws, by exposing the
rents and profits to sale, and that the purcnaser

iia-126

BUPBBMB GOUBT OF THB UnTTBD StATBS.

Dsc. Tbbm,

could enjoy those rents and profits upon the
purchase, or if the purchaser of the bridge
could keep it up, and receive th^ tolls, then
the plaintiffs might have an adequate remedy
at law. The diificulties are referred to and
set out in the amended petition and com-
plaint.

The complainants say that the bridge is val-
ueless, except in connection with the franchise
— the right to take tolls. Nebeker answers, that
he is advised and believes that the franchise
cannot be sold or exercised by third persons,
except' bv consent of the Corporation.

The Circuit Court of Indiana has adopted the
Statute. of that State, requiring the appraise-
ment of property upon execution sales. If the
property is real estate, the rents and profits have
to be appraised as well as the fee; and the fee
cannot be offered as long as the rents and prof-
its are suflScient, at two thirds their appraised
▼alue, to pay the debt. If the bridge is per-
sonal property, then two thirds of $70,000
would have to be paid for the bridge, which
the purchaser could not lawfully maintain one
hour, over or upon that public highway — the
Wabash River. So that the court can see that
this Bridge Company has brought the complain-
ants to a " dead- lock,'* and they have no other
adequate remedy but a receiver.

The grant in this case being to three persons,
if they sell out their bridge, or it is sold out by
execution, the bridge becomes the property of a
private individual, and the charter of the de
fendants is forfeited, and the existence of the
Company will be. by the Act, terminated.

In the matter of Highway. 2 N, J., 298; see,
also. Macon db Western Railway v. Parker,
9 Ga., 877; 8taU v. i?ic«, 6 Ired., 297; Am-
mant v. ^ew Alexandria Turnpike Company,
13 S. & R., 210.

The decree of the court, in appointing the re-
ceiver, was of the most favorable character to
the defendants. It provided for conforming,
in every respect, with the charter of the de-
fendante; and by it, the complainants were
constrained to wait for their pay until it was
earned in tolls at the bridge.

Mr. Justice Catron delivered the opinion of
the court:

In December, 1854, Shepherd and others
recovered a judgment against the Covington
Drawbridge Company, for upwards of $6,000.
At the same time, Davidson recovered a judg-
ment against the same Company for upwards of
$1,000.

The Corporation was created by an Act of the
Legislature of Indiana, and built a drawbridge
over the Wabash River, in that State, pursuant
to its charter; was sued for a tort in the Cir-
cuit Court of the United States for Indiana Dis
Irict, where the recoveries were had. Execu-
tions at law were regularly issued, and at March
Term, 1855, of that court, were returned by the
Marshal, " nothing found." Alias writs of ^.
/a. were taken out and levied on the bridge as
real estate, and in November, 1855, the Marshal
proceeded to sell the rents and profits of the
same on Davidson's judgment for the term of
one year, at the sum of $4,666.62, Davidson,
the execution creditor, becoming the purchaser.
The agent of Shepherd and otners instructed
the Marshal not to self the bridge on their judg-

ment, and he returned the special facts. Da-
vidson demanded possession of the bridge from
the Corporation, so that he might obtain the
tolls, but the keeper of the bridge, and a princi-
pal owner of the stock. refu«»ed to surrender
possession. In Mav, 1856, Shepherd, and those
mlerested in the large judgment jointly with
Davidson, filed their bill in equity in the Cir-
cuit Court of the United States for the District
of Indiana, against the Bridge Com pan v and
Richard M. Nebeker, as keeper, agent and man-
ager of the bridge : praying that the court should
appoint a suitable receiver to take possession
of the same, and receive the tolls and income,
and apply them to discharge the judgments at
law, after defraying expenses. The court made
the decree prayed n)r, from which the Bridge
Company appealed to this court.

The first objection made to the decree is. that
it does not appear by the bill that the defend-
ant is properly described as incorporated by the
State of Indiana. The bill alleges that *' The
Covington Drawbridge Company, of Coving-
ton, is a corporation and citizen of the State of
Indiana:" and it is also insisted that the judg-
ments at law are void, because jurisdiction was
not given to the United States courts by the
averment of citizenship in either of the declara-
tions. The judgment at law, in Shepherd' 8 case,
was brought before this court at the last term,
when it was held that the averment of citizen-
ship, here objected to, was sufficient. 20 How.,
227. That decision is conclusive of the two
foregoing exceptions.

The consideration, whether by a creditor's
bill corporate property and franchises, can be
subjected to pay the debts of the corporation,
by taking possession and administering its af-
fairs, and drawing to the court its revenues, is a
question of great importance and some difficul-
ty. In advance of this question, it is insisted
here that there exists in Indiana an adequate
remedy at law; that Davidson's judgment is
satisfied by the levy and sale of the tolls of the
bridge ; and Davidson having obtained a remedy
by ^. fa., Shepherd may do the same. To as-
certain whether Davidson obtained satisfaction
by the Marshal's sale, we must inquire what
property was sold, and what title to it acquired,
that could be made available by possession and
the receipts of tolls.

The Covington Drawbridge Company was
duly incorporated to build a bridge across the
Wabash River where it was navigable for steam-
boats, and not subject to be bridged by an in-
dividual assuming to exercise a mere private
right. The Corporation had conferred on it a
public right of partially obstructing the river,
which is a common highway, and which ob-
struction would have been a nuisance, if done
without public authority. This special privi-
lege, conferred on the Corporation by the sover-
eign power, of obstructing the navigation, did
not belong to the country generally by common
right, and is therefore a franchise; and second,
the authority of taking tolls from those who
crossed the river on the bridge was also a fran-
chise, and freedom to do that which could not
be lawfully done by one without public author-
ity. This franchise could only be conferred by
the Legislature directly, or indirectly through
public agents and tribunals, in pursuance of a
statute. The bridge is part of a road, and an

6-i U. 8.

1858.

Ths Niaoaba v. Cordes. Samb y. Srxtom.

7-35

caflement. like the rond; nnd the privilege of
makine: the bridge, and taking tolls for the use
of the same, is a franchise in which the public
have an interest; the Corporation, as owner of
the franchise, is liable to answer in damages if
it refuses to transport individuals on being paid
or tendered the usual fare; the law secured the
tolls as a recompense for the duty imposed to
provide and maintain facilities for accommodat-
ing the public. Whether the timbers and ma-
terials of this bridge could be sold at auction by
the Marshal, by virtue of a fieri facias in his
hands, as was held could be done by the laws
of North Carolina in the case of The State v.
Rit€9, 5 N. C, 297, we are not called on to de
cide in this case, as here the annual tolls were
sold, and not the bridge itself.

By the laws of Indiana, lands and tenements
cannot be sold under execution, until the rents
and profits thereof for a term not exceeding
seven years shall have been first offered for sale
at public auction; and if that term, or a less
one, will not satisfy the execution, then the
debtor's interest or estate in the land may be
8oId, provided it brings two thirds of its ap-
praised value. The tolls, under the idea that
thev were rents and profits of the bridge, were
sold for one year, according to the forms of this
law. The tolls of the bridge being a franchise,
and sole right in the Corporation, and the bridt^e
a mere easement, the Corporation not owning
the fee in the land at either bank of the river,
or under the water, it is difiicult to say how an
execution could attach to either the franchise
or the structure of the bridge as real or person-
al property. This is a question that this court
may well leave to the tribunals of Indiana to
decide on their own laws, should it become
necessary. One thing, however, is plainly
manifest, that the remedy at law of these exe-
cution creditors is exceedingly embarrassed,
and we do not see how they can obtain satisfac-
tion of their judgments from this Corporation
(owning no corporate property but this bridge),
unless equity can afford relief.

By the laws of Indiana, stocks in a corpora-
tion may be sold by virtue of an execution
against the owner of the stocks, which the sher-
iff may transfer to the purchaser; but this law
does not help these complainants ; they did not
proceed against the stocks; their judgment at
law did not affect individual property, but cor-
porate property. The question whether a rail-
road company's property, including the fran-
chises, can be subjected to the debts of the cor-
poration by a decree in equity, is treated very
fully by Kedfield on Railways, ch. 3d, section
2, p. 571 ; there the substance of the decisions
aifecting the doctrine is given in cases where
there were Hens by mortgage. The subject was
well examined by the Supreme Court of Georgia
in the case of Ine Maeon and Western Railroad
Company v. Parker, 9 Ga., 878. The contest
there involved claims of creditors. When speak-
ing of the necessity of equity exercising juris-
diction, the court say "that the whole history
of equity jurisprudence does not present a case
which made the interposition of its powers not
only highly expedient, but so indispensably nee
essary in adjusting the rights of creditors to an
insolvent estate as this did." The road was sold
according to the decree; but, to settle the diffi-
culty as to the sale of a franchise without the

ctoe 21 How.

consent of the power granting it, upon applica-
tion, an Act was pa&ied by the Legislature,
creating the purchaser and his associates a body
corporate, with the powers and privileges of
the old Company. In England, the practice is,
to order a receiver to be appointed to manage
the corporate property, take the proceeds of the
franchises, and apply them to pay the creditors
filing the bill.

Buomehard v. Cawthorti, 4 Simons, 566; Tripp
V. The Chard Baitway Company, 21 E. L. &. E.,
53.

All that we are called on to decide in this
case is, that the court below had power to cause
posseesion to be taken of the bridge ; to appoint
a receiver to collect tolls, and pay them into
court, to the end of discharging the judgments
at law ; and our opinion is, that the power to
do so exists, and that it was properly exer-
cised.

It is, therefore, ordered that the decree below be
afflrmed; and the Circuit Court is directed to
proceed to execute its decree,

Mr. Justice Daniel dissented for want of
jurisdiction of the courts of the United States
over corporations.

MarshaU v. B. & 0. B. B. Co., 16 How., 814
(57 U. S.)

S. C— 20 How., 287.

Cited-21 How., 123, 423 ; 1 Black. 296 ; 6 Wall., 762 ;
18 Wall., 675 ; 6 Bank. Kefir., 2»5 ; 2 Abb. U. 8., 284 : 6
Blatcbf ., 112 ; 8 Blatchf., 139; 3 Dill.. 409 ; 4 Bias., 41.

THE PROPELLER NIAGARA, her Engine,
«&c., ANSEL R. COBB bt al.. Claimants
and Appts.,

JOSEPH H. CORDES;

AND

THE PROPELLER NIAGARA, her Engine.
&c., ANSEL R. COBB btal.. Claimants
and Appts.,

LESTER SEXTON, LORIN SEXTON,

GEORGE SEXTON and EDMUND BOT-

TES.

(See 8. C, 21 How., 7-^.)

Carrier by water, liable for loss — the exceptions in
accident — liable for all possible care—for every
loss which could have been prevented by fore-
sight, skiU and prudence — burden of proof on
carrier to show excepted peril — losses arising
from dangers of navigation, what are—first
cause — master's duty to seek shelter from storm
— negligence in saving goods — when cannot
abandon ship or cargo.

Carrier by watcris liable in all events, and for any
loss, however sustained, unless it happen from the
act of God. or the public enemy, or by the act of the
shipper, or from some other cause or accident ex-
pressly excepted in the bill of lading.

When he is unable to carry the goods forward to
their place of destination, from causes over which
he has no control, as by the stranding of the vessel,
he is still bound to take all possible care of the
fiToodft.

He is responsible for every loss or injury which
miffht have been prevented by human foresifirht,
skill and prudence.

7-85

BuPRBMB Court or trb Ukitbd Statba.

Dec. Trrm,

Where a loss or damage Is shown, it is Incumbent
upon the carrier to bring it within the excepted
peril in order to dischanre himself from responsi-

Loases arising from the dangers of navigation are
such as happen in spite of human exertions, and
which cannot be prevented by human skill and
prudence.

When such efforts fail to save the goods from the
excepted peril, the ultimate loss and damage in
judgment of law results from the first cause.

It depends upon tht; proof whether the act of the
master, in seeking shelter in the hart>or, was reason-
ably necessary, and if it was, then he is not in fault
on that account.

A masters has a rlght,and oftentimes it is his duty,
tosec*k shelter from a Htorm: and although the cir-
cumstances here tend strongly to prove that he mis-
judged, still they are not of that decisive character
which incline the court to make the decision turn
upon thatground; and the same remarks also apply
to his acts and endeavoi-s to anchor the steamer
after he entered the harbor.

Master was guilty of gross negligence for not
having made any eifort himself, or requested the
aid of others, either to get the steamer oif when
stranded, ur to remove and store the goods.

A master cannot abandon his ship and cargo
upon any grounds, when it is practicable for human
exertions, skill and prudence to save them from
the impending peril.

Argved Dec. 9, JS68. Decided Jan. 4, 1869,

APPEALS from the District Court of the
United States for the District of Massa-
chusetts.

The libels in these cases were filed in the
court below, by the appellees, to recover on
contracts of affreightment for damages to cer-
tain goods.

The court below entered decrees in favor of
libelants, for $3,768.76, with $105.64 costs, and
$4,964.80. with447.76co8t8,respectively. From
these decrees the defendants took appeals to
this court.

A further statement appears in the opinion of
the court.

Mr. S. O. Haven, for the appellants.

After a review of the evidence and an argu-
ment on the disputed questions of fact, the
counsel proceeded :

After The Niagara was stranded and filled
with water by the dangers of navigation, and
disabled from proceedmg on her voyage, the
appellants were only responsible for the ulti
mate delivery of the goods, and for reasonable
care in preserving the goods from the effects of
storms, of bad air, of leakage, and of embezzle
ment.

Story Bail.. sees. 490. 512; Norway Plairu Co.
y. B. A M. R R, 1 Gray, 263, 270, and
cases cited.

The principle on which the extraordinair
responsibility of common carriers is founded,
does not require that that responsibility should
extend to the time occupied in transportation.
That principle is the danger of robbery or
embezzlement, by collusion or fraud on the part
of the carrier.

ParBonn v. Hardy, 14 Wend. , 215.

The principle mentioned does not extend be-
yond delivery of the goods. It does not reach
the condition in which they are delivered. The
freezing of canals excuses delay ; but during
the delay, the carrier must not be guilty of
negligence in taking care of articles de tained.

Bowman v. TVott. 23 Wend., 806; Wibert v.
N. r, <t E. B. R. Co., 12 N. Y., 245; Ang.
Carr., sec. 218, 289, 828.

After the stranding of The Niagara.the pi o|)er
standard of diligence was, '' such a line of con-
duct as a prudent man of intelligence would
have observed in taking care of his own prop-
erty similarlv situated.

Smyrl v. NioUm, 2 Bail., 421 ; Ang. Carr., sec
187. p. 187: 8 Kent's Com., 224; 16 Johns.,
848; Lawrence v. Mintum, 58 U. 8. (17 How.),
100-109.

In cases of necessity or calamity during the
voyage, the master isbv law created an agent
from necessity, for the benefit of all concerned;
and what he fairly and reasonably docs under
such circumstances in the exercise of his sound
discretion, binds all parties in interest.

Abb.. 446-455; 1 Story, C. C, 842; 2 Kent's
Cora., 212; Everett v. Saltus. 15 Wend. 474; 5
Johns., 262; 8 Rob.. 240; 1 Salk. Com. Case.,
84; MUUfn v. Lord. 1 Btatchf., 854; Douglae v.
Moody, 9 Mass., 550; Smith, Mer. Law, 292,
note, and cases cited ; Searle v. ScooeU, 4 Johns.
Ch., 218.

The carrier may excuse delay of delivery, by
accident or misfortune.

Bowman v. TeaU, 28 Wend., 806; Forwards,
PiUai-d, 1 T. R.. 27; McUenry v. PhOa. W. dt
B. B. B. Co.,4: Harr. Del., 448; Story, Bailm.,
sees. 490-509, 512.

Accident or misfortune will excuse the carrier;
unless he have expressly contracted to deliver
the goods within a limited time.

Harmony v. Bingham, 12 N. Y., 99; Wibert
V. N. T. dt E. B. R Co., 12 N. Y., 245; PUr-
none V. Hardy, 14 Wend., 215.

Messrs. Alfred Buseell and R. H. GU-
let* for appellees:

The fact of damage fastens responsibility
on the vessel, and raises a legal presumption to
be rebutted by the carrier, that tlie injury arose
from negligence.

Clark V. Barnwell. 12 How.. 272; Richy.
Lambert,l2 Mow., 847; The Martha, Olcott.148;
King v. Shepherd, S Slory, 855: Bemadon v.
NoUc, 7 Mart., 283; Price v. Ship Utiel, 10 La.
Ann., 418; Story, Bailm., sec. 509; 1 Conkl.
Adm., 205.

Neither of the triple defenses of the answer
is established by the proofs. The damages did
not ariAe either'from being driven into the har-
bor or forced upon the shore, or the unavoidable
detention of the goods in a leaking vessel.

Muddle V. Stride, 9 C. & P., 880.

But if the weight of evidence were measura-
blv doubtful, this court, when an appellant has
taken no new testimony on uppeal according to
his privilege, and as in Rich v. Lampert, 12 How.,
874. will De disinclined to reverse the decree
below, on a balancing of testimony.

Tronson v. Dent, 86Eng. L. &%. 41; Stu-
art V. Lloyd, 4 £ng. L. & £q.. 1; The SU^yl, 4
Wheat., 98; Hobart v. Drogan, 10 Pet., 119;
Spear v. Place, 11 How., 528; Pigsof Copper, 1
Story, 822; Cushman v. Ryan, 1 Story, 97; 1
Wall., Jr., 844.

It is abundantly manifest from the evidence
that the storm did not compel the propeller to
put into port.

There was a want of ordinary prudence in
adopting no precautionary measures before en-
tering the harbor, after the decision to enter had
been made, to prevent the accident which did
occur.

The master was guilty of want of ordinary

62 U.S.

1808.

Thb Niaoaba y. Cordks. Same v. Sbxtok.

7-85

care of the interest of the shtppers, in deserting
the Yeseel after she was stranded, in making no
efforts to remove the libelant's goods from the
place of stowage, either ashore or to some part
of the vessel where they would have escaped
damage by water.

A peril of the sea, imposing such duty upon
him, will not be regarded as the proximate
cause of such damage, if he was delinquent in
this regard.

Chouteaux v. Leerh. 18 Pa., 238: Bowman v.
TeaU, 23 Wend.. 806; King v. Shepherd, 8 Story,
849; 7he Barque Oentletnen, Olcott. 118; Bird
V. Oramtoell, 1 Mo.. 81 ; Harrington v. Lyles, 2 N.
& McC. 88; Harris Y. Rand, 4 N. H., 259; 8.
B. Co. V. Baaon, Harper, 262; Marv. Wreck,
21; Fland. Mar. Law, 165; Abb. Ship.. 454 (N.
I.); see, also, Shipton v. Thornton, 9 Ad. & E.,
814; Trontton v. Dent, 86 Eng. L. «fe Eq., 41;
Hugg V. Ine. Co., 7 How.. 595; daltus v. Ins.
Co,, 12 Johns., 107; Bryants, Ins, Co., 6 Pick.,
181; 1 Am. Ins.. 187; Hohart v. Drogan, 10
Pet., 108; Cheviot v. Brooks, 1 Johns., 867.

In cases of careless and cowardly abandon-
ment, the law will presume that well directed
efforts would have been successful.

Davis V. GarreU, 6 Bing.. 716; 19 Eng. C.
L.. 714; WiUiams v. Grant, 1 Conn., 492;
Fland. Ship., 199, 261, 269. 308, n. 1.

If the master and mates had remained, it is
evident they might have taken out the perish-
able articles, and thus have prevented them from
having essentially damaged themselves, or at
least from damaging the dry goods of Sexton.
There is good reason to believe that the houses
on shore, and the means of erecting more, might
have been used to afford safe storage.

The advice of the best informed men would
make no difference. It must be clear to the
court that the master's conduct was proper.

Tronson v. Dent, 86 Eng. L. & Eq.. 41 ; Law-
rence ▼. Minium, 68 U. 8. (17 How.), 110;
Marv. Wreck. 20, 21.

8d. There was a deviation. This, of itself,
renders the vessel chargeable, because it appears
that the master was inexperienced and unskill-
ful in his business, and the evidence shows that
his putting into Presque Isle was not necessita-
ted by an unavoidable and overruling force, but
was a voluntary and unexcused departure.

1 Am. Ins., 404, 409; Byrne v. Ins. Co,, 7
Mart. N. S., 128.

4th point. Omitted.

Mr. Justice ClilFord delif ered the opinion of
the court:

These are appeals in admiralty from the
District Court of the United States for the Dis-
trict of Wisconsin.

Libels were filed in these cases at a special
term of the District Court of the United States,
begun and held at the City of Milwaukee, on
the first Monday of November, 1866. They
are drawn in the usual form of libels in rem,
and respectively allege a breach of contract
of affreightment. Both suits grew out of con-
tracts for the transportation of goods by the
steam propeller Niagara, on her last trip during
the season of 1864. from the port of Buffalo,
in the State of New York, to Chicago, in the
State of IllinoLB. They were argued together
in this ccmrt, and it was ooncedea at the argu-
ment, by the counsel on both sides, that they

tee 21 How.

depended substantially upon the same state of
facts. All the testimony respecting the liability
of the steamer was first taken and filed in the
case last named, and was subsequently admitted
and read in evidence at the hearing in the ot^her
suit, under a stipulation of the parties, and the
pleadings are substantially the same in both
cases. On the part of the libelants, it is al-
leged, among other things, to the effect that
on or about the 28th day of November, 1864,
the libelants caused certain goods, particularly
described in the respective libels, to be shipped
in good order and condition on board the pro-
peller Niagara, to be transported from Buffalo
to Milwaukee, in the State of Wisconsin, and
that the master, Hugh Mallon, received the

?:ood6 on board, and in consideration of certain
reight to be paid in that behalf by the re-
spective libelants, undertook and promised to
convey the goods from the port of shipment to
the port of destination, and there to deliver
the goods (the dangers of navi^tion. fire, and
collision, only excepted), in like good order
and condition to the libelants or their respect-
ive agents.

And they further allege that the steamer
shortly thereafter departed on her voyage, but
that the master, not regarding his duty, nor
his promise and undertaking, did not so convey
the goods, although no danger of navigation,
fire, or collision, orevented him from so doing,
and that the goods, or a large portion of them,
through the mere carelessness, negligence and
improper conduct of the master, his mariners
or servants, became wetted, heated, or stained,
and greatly damaged, or whollv lost to the li-
belants. Answers in the usual form of plead-
ing were duly filed in each case on the 24th
day of May, 1866, admitting the jurisdiction
of the court, and setting up substantially the
same grounds of defense. They are alike in
all their material allegations, so far, at least,
as respects the questions discussed at the bar,
and all the matters involved in the judgment
of the court. In both cases the answers admit
the contract to transport the ^oods, as per bill
of lading, the dangers of navigation, fire, and
collision, excepted, and that certain packages,
under each of the contracts, were accordingly
shipped on board the steamer for that trip,
leaving it to the libelants in each case to make
such proof of the kind, quantity, and value of
the goods, as they might be advised was mate-
rial, and aver that the steamer, when she de-
parted on the voyage, on the 29th day of No-
vember, 1864, was tight, stanch, seaworthy,
and well manned, and that her entire cargo
was well, safely, and securely stowed. And
the respondents, denying every allegation in
the libels, of carelessness, negligence, and im-
proper conduct, on the part of the master and
his mariners, aver the fact to be that they were
vigilant, competent, and skillful in the prem-
ises, and did what was their duty to do under
the circumstances in which they were placed.
They admit, also, that a part of the cargo was
damaged, but allege and insist that the damage
was occasioned by a danger of navigation
within the exception of the bill of lading, for
which they are not. and ought not, in any
manner, to be held responsible. And they
furUicr allege that the steamer was, bv stress of
weather, compelled to make the harbor of

7-85

BuPBXicx Court of thb Unitied Btatbs.

Dec. Tktoc,

Presque Isle, and by the snow and the force
of Uie Htorni and wind, which was yery se-
vere, the steamer dragged her anchor, went
ashore, and was dashed upon the beach, from
which cause, and the necessary detention of
the goods on board, the damage, whatever it
is, occurred; and that in the month of May,
1855, which was as soon thereafter as it was
possible to repair the steamer and for her to
proceed on her voyage, the goods, or so much
of them as belonged to the respective libelants,
were transported to Milwaukee, and there de-
livered to ihem, and were by them respectively
received, with a full knowledge of the damage,
if any, and of its cause, and with an agreement
not onl V to share the damage, but that the goods
should be charged with and pay their propor-
tion of a general average of the losses thus oc-
casioned; and the respondents claim that the
libelants in each case are liable ** for a large
amount of the average and damage" to the
steamer, which they aver to be me sum of
$2,000.

This statement from the libels and answers
embraces the substance of the pleadings in both
cases, so far as respects the several matters dis-
cussed at the bar, and the real merits of the con-
troversy. Testimony was taken on both sides
in the court below, and after a full hearing a
decree in each case was entered for the libel-
ants, and the respondents appealed to this
court. No additional testimony has been taken
since the appeal, and it seems to be conceded
that the rights of the parties depend chiefly
upon certain questions of fact to be determined
from the evidence, which is conflicting, and in
some particulars very contradictory. That re-
mark, however, applies more particularly to
that part of the testimony which relates to the
conduct of the master aft«r the steamer was
stranded, and the means at his command to
secure and preserve the goods from damage.
Many of the facts and circumstances connected
with the voyage, as well as those attending the
disaster, are involved in much less difficulty,
and some of those most material to be ascer-
tained are satisfactorily proved, without any con-
tradiction whatever. On the one side, no ques-
tion is made that the goods were regularly
shipped at Buffalo on the 28th day of Novem-
ber, 1854; and on the other, it is admitted that
in the contract of shipment the dangers of
navigation, fire and collision, were duly ex-
cept^ in the usual form of such an exception
in bills of lading. All of the goods were
shipped in good order and condition, and were
to be delivered at Milwaukee, as alleged by the
libelants. They consisted in the one case of
groceries, and in the other of dry goods; and it
is conceded that they were carefully and proper-
ly stowed. On the day following the shipment.
The Niagara left Buffalo, and proceeded on
her intended voyage. She was a steam propel-
ler, of four hundred and fifty tons burthen,
and at the time of her departure was a good,
tight, stanch vessel, every way suitable for the
navigation in which she was engaged, and was
well furnished with ground tackle, including
two anchors and two chains. One of her an-
chors weighed fourteen hundred pounds, with
an inch and an eighth chain of sixty fathoms,
and the other weighed seven hundred pounds,
with a chain of the usual size and length.

Her whole company consisted of twenty-two
men, constituting a full complement of officers
and crew for the voyage in a steamer of that
description. Having proceeded on the usual
route for that voyage, she arrived in Lake
Huron on the second day of December, at
four o'clock in the morning, in perfect safety,
and crossed Saginaw Bay m the afternoon of
the same day. About eight o'clock in the even-
ing of that day, it commenced snowing, with
a nght wind, which by twelve o'clock at night
freshened to a gale, and the storm continued
without any abatement, blowing a heavy galo
from a north easterly direction, or east- north-
east, till the day after the steamer was stranded.

After crossing Saginaw Bay, however, she
continued on her regular course, and made
Thunder Bay light at one o'clock, and proceed-
ing onward on her voyage, arrived off JPresque
Isle, and made the li^ht at that place at four
o'clock in the mommg, without having suf-
fered any damage or met with any difficulty, ex-
cept that the master testifies that she rolled
heavily, and that for a half or three quarters of
an hour before he made the light, he had to
keep her off her course two points, to ease her in
the sea. Her course from Thunder Bay had been
north-northwest for a short time, then west by
north and then northwest; and the mate of
the steamer testifies, that when they first saw
Presque Isle light, the steamer was a mile or two
east of the light, and was in the usual course.
At that time she was in no want either of wood
or water, and it does not appear that she was in
any worse condition to proceed on the voyage,
unless prevented by the storm, than at the mo-
ment when she left the place of her depatr-
ure. Her cargo was a general assortment of
merchandise, consisting of teas, sugars, cof-
fee, fish, liquors, molasses, crates of crock-
ery, bales of sheeting, boxes of dry goods, and
various other articles, specified in the record.
All of the liquors, molasses, and some of the
boxes, were stowed on the ground tier in the
lower hold. Heavy goods were placed at the
bottom, and light goods on lop, and the hold
was full, and battened down. Most of the light
goods, such as boxes of merchandise, teas,
sugar in barrels, and bales of sheeting, were on
deck, and there were some willow wagons on
the hurricane deck. None of her deck load
had been washed away or injured, and it does
not appear that it had been in any manner dis-
placed or thrown into disorder by the rolling of
the vessel.

These considerations tend strongly to show that
there could not have been any urgent necessity
to change the course of the steamer on account
of the violence of the storm or the motion of
the vessel; and, consequently, affect the credit
of the master, and corroborate the statement of
the mate, that, at the time the light was dis-
covered, the steamer was pursuing her usual
route. Both the master and the mate were on
deck when they made the light, and the master
gave the order to run into Presque Isle. In
entering the harbor, they steered west-south-
west, and then doubled inside of a small shoal
round to the southeast, in order to get to the
pier. What purpose was to be accomplished
by getting to the pier, it is not easy to perceive,
as the mate testifies that they knew that the sea
was so heavy that the steamer could not lie at

68 U. S.

1858.

Thb Niagara t. Cobdes. 8amb y. Bbxtok.

7-86

the dock. They, however, came round to the
southeast, and so near to the pier that the mate
says he could see the snow on the beach, and
then let go the large anchor, and the wind im-
mediately caught the steamer on the larboard
bow, and she commenced dragging the anchor.
When they found tliat the steamer dragged,
and that there was danger that she woiud go
ashore, instead of casting the other anchor, their
first endeavor was to get rid of the one already
cast, in order, if possible, to work her off, and
make another effort to get up to the dock; and
finaing that they could not heave the chain with
the windlass, their next effort was to slip it;
and while they were endeavoring to unshackle
the chain the steamer struck, and went on to
the beach stern first, and immediately swung
round broadside to the shore. No attempt was
made to let go the small anchor, although it
was hanging at the bow, and the mate admits
that the steamer dragged more than a quarter
of a mile before she struck. They presently
tried the pumps, and it was found that she did
not leak. Shortly after, she commenced pound-
ing, and it was then ascertained that she was
making water freely, when they started the
engine pump, but it choked with sand, and
they were obliged to desist. At the place
where the steamer lay the water was seven or
eight feet deep, and she filled to the level of the
water outside in two or three hours, so that the
water in the hold was four or five feet deep
above the top of the keelson. It was about
five o'clock in the morning of the 8d of De-
cember, 1854, that the steamer went on to the
beach, and the master and all hands remained
on board till ten o'clock in the forenoon, when
he and the mate went on shore for the put pose,
as he testifies, of ascertaining whether there
were any facilities for storing the goods, and
whether it would be possible to unload the
steamer, and get her off. When he got on
shore, he found the steamer Plymouth, bound
down the lake, lying there, fastened at the dock,
she having touched at Presque Isler for wood,
four or five hours before the arrival of The
Niagara, and remaining there on account of
of the storm. Having made certain inquiries
of the residents, and consulted with the master
of The Plymouth, he came to the conclusion
that it was the safest way to leave the goods on
board, as more of them, m his judgment, would
be protected in that mode than by removing
them on shore; and on che morning of the
6th of December, the master, other officers,
and all the crew of The Niagara, except three,
took passage in The Plymouth, leaving the
watchman, wheelsman and porter in charge of
the steamer, with the hatches fastened down,
and the goods in the condition in which they
were when the steamer was stranded. During
the night of the 4th of December, the storm
subsided; but the following day was very cold,
so that the steamers were frozen in, and per-
sons walked on the ice from the pier to the
place where The Niagara lay. which was more
than a half mile. It moderated, however, dur-
ing the night, and on the following morning
the ice went out of the harbor, and two other
steamers. The Republic and Kentucky, came
in l>efore The Plymouth left, and the' former
took the place of The Plymouth at the dock
after she started on her voyage down the lake.

See 31 How.

Several witnesses testify-~4ind among the num-
ber the master of The Plymouth — that the 6th
of December, the day he left, was a fine day,
although, he says, there was so much ice about
his boat where she lay at the dock, that he had
to cut her out in the morning before he started.
One of the witnesses for the libelants, who re-
sides at Presque Isle, testifies, that after The
Plvmouth left, it was clear, and made ice, but
did not blow, and that not long after there
was a thaw, which continued till the ISth of
January, and that after the thaw there were
two or three weeks of very nice weather.
Naviu^tion, however, closea in a few days
after The Plymouth left, and The Niagara re-
mained on the beach, where she was stranded,
until the mate, who is now the master of The
Niagara, returned to Presque Isle, on the 27th
day of April, 1855. When he returned, he
found her where he left her, in charge of the
watchman. He immediately pumped her out
with a steam pump, according to his ac-
count, and lightened her off with a steamboat,
and, after she was lightened, got the steamboat
to take her up to the dock, where he removed
the residue of the goods, and then took her to
Detroit and had her repaired. After she was
repaired, he returned to Presque Isle, in the
month of May, 1855, and conveyed the goods,
or so much of them as had not been destroyed,
to the place of destination. Some of the goods.
were in good condition or were slightly injured,
while others were greatly dama^d or wholly
worthless. Those stowed below had remainea
entirely without ventilation from December to
March, and then the hatch at midships only
had been opened They were heated, disclored
and stained, anil one of the witnesses testifies
that sugar, coffee, and dried fruit, were all
soaked together, and that the water pumped
up was dark, exhibiting the appearance of the
soakings of coffee and codfish, and that the
goods had the offense smell of dead water.
They were taken out about the 1st of May, so
that those stowed in the lower hold, not more
than four or five feet above the keelson, had
been submerged In bilge water for nearly five
months, and some of those above the water had
been moistened by the dampness and become
moldy. Damages to the amount of $3,763.76
were allowed by the District Judge, in the
case first named, and in the other. $4,964.80,
and it is not pretended in the argument that
the respective amounts were either extravagant
or unreasonable. It is not upon any such
ground that the appellants seek to reverse the
respective decrees m the court below. They
deny that they are liable at all for any amount,
and set up the first exception in the contract of
shipment or bill of lading, and their counsel
inHist upon the following propositions:

I. That the damage to the goods resulting
from the stranding of the steamer was wholly
occasioned by the dangers of navigation, the
risk of which was not taken by the master or
owners of the steamer.

II. That after The Niagara was stranded
and filled with wat^r, and disabled from pro-
ceeding on her voyage, the appellants were re-
sponsible only for the ultimate delivery of the
goods, and for reasonable care in preserving
them from the effect of storms, \}sA 9^1^^ leak-
age and embezzlement.

7-85

BUPBSMB OOUBT OF THB XJmTBD BtATM*

Dbc. Tbrm,

III. That the master, after the steamer was
stranded, and the goods wetted, became and
was the agent of the shippers of the goods as
well as of the owners of the vessel, and as
such, under the circumstances of this case, is
responsible only for the due and proper care
and diligence, and that it cannot be success-
fully contended, from the evidence, that such
care and diligence were not exercised.

These propositions, whether taken separately
or collectively, necessarily involve mixed ques-
tions of law and fact, which in a case, like the
present must be determined by the court, act-
ing instead of a jury to find the facts, and as
a court to determine the law. Such proposi-
tions, therefore, must be considered in connec-
tion with all the legal evidence exhibited in the
record, and their accuracy must be tested by
the true state of the facts as found by the court
from the evidence, and by the rules of law ap-
plicable to that state of the case. According
to the admitted or undisputed facts of the case.
The Niagara was enrolled and licensed for the
coasting trade, and was emploved by the own-
ers in transporting goods, under contracts for
freight, upon navigable waters between ports
and places in different States; and at the time
of the disaster she had a full cargo of merchan-
dise, of various descriptions, on board, con-
signed to merchants or parties raiding either
at her port of destination or at Milwaukee, and
other intermediate ports or places along the
course of her voyage. She was a general ship,
laden with goods to be transported for hire;
and the goo£ in question having been received
and taken charge of, as goods under a contract
of shipment, corresponding in terms to the
usual bill of lading for the transportation of
goods on inland navigable waters, the (question
of liability in this case must be determined by
the rules of law applicable to carriers of goods
upon such inland waters. A common carrier
is one who undertakes for hire to tran8port the
goods of those who may choose to employ him,
from place to place. Ue is, in general, bound
to take the goods of all who offer, unless his
complement for the trip is full, or the goods
be of such a kind as to be liable to extraordi-
nary danger, or such as he is unaccustomed to
convey. In all cases where there is no special
agreement to the contrary, ho is entitled to de-
mand the price of carriage before he receives
the goods; and if not paid, he may refuse to
receive them; but if he take charge of them
for transportation, the non-payment of the
price of carriage in advance will not discharge,
affect or lessen his liability as a carrier in the
case, and he may afterwards recover the price
of the service performed. When he receives
the goods, it is his duty to take all possible
care of them in their passage, make due trans-
port and safe and right delivery of them at the
time agreed upon; or, in the absence of any
stipulation in that behalf, within a reasonable
time. Common carriers are usually described
as of two kinds, namely: cai^iers by land and
carriers by water. At common law, a carrier
by land is in the nature of an insurer, and is
bound to keep and carry the goods intrusted to
his care safely', and is liable for all losses, and in
all events, unless he can prove that the loss hap-
pened from I lie act of God, or the public ene-
my, or by the act of the owner of the goods.

Common carriers by water, like common
carriers by land, in the absence of any legisla-
tive provisions prescribing a different rule, are
also, in general, insurers, and liable in all
events, and for every loss or damage, however
occasioned, unless it happened by the act of
Gk>d, or the public enemy, or by some other
cause or accident, without any fault or negli-
gence on the part of the carrier, and expressly
excepted in the bill of lading. A carrier^
first duty, and one that is implied by law.
when he is engaged in transporting goods by
water, is to provide a seaworthy ve^sel, tight
and stanch, and well furnished with suitable
tackle, sails, or motive power, as the case may
be, and furniture necessary for the voyage.
She must also be i>rovided with a crew, aoe-
quate in number and suflScient and competent
for the voyage, with reference to its length and
other particulars, and with a competent and
skillful master, of sound Judgment and discre-
tion ; and, in general, especitdly in steamships
and vessels of the larger size, with some person
of sufficient ability and experience to supply
his place temporarily, at least, in case of his
sickness or physical disqualification. Owners
must see to it that the master is qualified for
his situation, as thev are, in general, in respect
to goods transported for hire, responsible for
his acts and negligence. He must take care to
stow and arrange the cargo, so that the differ-
ent goods may not be injured by each other, or
by the motion of the vessel, or its leakage;
unless, by agreement, this duty is to be per-
formed by persons employed by the shipper.
In the absence of any special agreement, his
duty extends to all that relates to the lading,
as well as the transportation and delivery of
the goods; and for the faithful performance of
those duties the ship is liable, as well as the
master and owners. A clean bill of lading, in
general, imports, unless the contrary appear on
its face, that the goods are to be safely and
properly secured under deck. Fland. on Ship. ;
sec. 192.

In the case of a parol shipment, the master
is allowed to show a local custom to carry the
goods on deck in a particular trade. It must,
however, be a custom so generally known and
recognized, that a fair presumption arises that
the parties in entering into the contract agreed
that their rights and duties should be regulated
by it. Having received the goods for trans-
portation, in the al)sence of any stipulation as
to the period of sailing, the master must com-
mence the voyage within a reasonable time,
without delay, and as soon as the wind,
weather and tide, will permit. After having
set sail, he must proci^ed on the voyage^ in the
direct, shortest, and usual route, to the port of
delivery, without unnecessary deviation, un-
less there is an express contract as to the course
to be pursued; and where the vessel is des-
tined for several ports and places, the master
should proceed to them in the order in which
they are usually visited, or that designed by
the contract, or, in certain cases, by the adver-
tisement relating to the particular voyage. A
deviation from the direct route may be excus-
able if rendered necessary to execute repairs
for the preservation of the ship, or the prose-
cution of the voyage, or to avoid a storm, or
an enemy, or pirates, or for the purpose of ob-

62 U. »•

l^'S.

Thb Niagaba y. Cordbs. Samb v. Sbxtok.

7-85

taining necessary supplies of water or provis-
ioDB, or. in the case of a steamer, to obtain
necessary supplies of wood or coal for the pros-
ecution of the voyage, or for the purpose of
assisting another vessel in distress.

As agent of the owner, the master is bound
to carry the goods to their place of destination
in his own ship, unless he is prevented from so
doing by some cause arising from irresistible
force, over which he has no control, and which
cannot be guarded against by the watchful ex-
ertion of human skill and prudence. When
the verael is wrecked or otherwise disabled in
the course of the voyage, and cannot be re-
paired without too great delay and expense, he
18 at liberty to transship the goods and send them
forward so as to earn the whole freight: and if
another vessel can be had in the same or a con-
tiguous port, or at one within a reasonable dis-
tance, it becomes his duty, under such circum-
stances, to procure it and transport the goods to
their place of destination, and in that event he
18 entitled to charge the goods with the in-
cressed freight arising from the hire of the
vessel so procured. That rule, however, is not
obligatory in cases where the goods are not
perishable, provided the ship can be repaired
in a reasonable time. In that state of the case,
he may, if he deems it best, retain the goods
until the repairs are made, and forward them
in his own vessel ; and upon the same principle,
and for the eame end. if he have no means to
transship the goods, it is his duty to repair his
own vessel, when capable of being repaired,
provided it can be done within a reasonable
time, and he has the means at his command ;
and if not, and the means cannot be obUuned
fntm the owner, or upon the security of the
ship, he may sell a part, or hypothecate the
whole, and apply the proceeds to execute tfie
repaim, in order that he may be enabled to re-
sume the voyage and carry the goods, or the
ref^idue, as the case may' be. to the place of
destination ; and he is not entitled to recover
for freight if he refuses to transship the goods,
unless be repairs his own vessel within a rea-
sonable time, and carries them on to the place
of delivery. Most of the rules of law pre-
scribing the duties of a carrier for hire, and
reflating the manner of their exercise, have
existed for centuries, and they cannot be mod
ified or relaxed except by the interposition of
the legislative power of the Constitution. Time
and experience have shown their value and
demonstrated their utility and Justice, and they
ought not and cannot be changed by the ju-
diciary. Some new and important provisions
have been introduced into the law of carriers
by water, by the Act of the 8d of March,
1851, entitled *' An Act to limit the liability of
ship owners." Owners of ships under that
Act are not held liable for loss or damage to
the cargo by reason of fire happening to or on
board tne vessel, unless the fire was caused by
the dedgn or neglect of such owner, except in
cases where there is a special contract between
the owner and the shipper, whereby the former
assumes that risk. They are declared not liable
as carriers for precious metals, precious stones,
or jewels, or for the bills of any bank or pub-
lic body, unless at the time of their lading a
note in writing of their true character and value
be given to the owner or his agent, and the

See 21 How.

same be entered on the bill of lading: and in
no case, where that Act applies, will the owner
be liable for the articles therein enumerated
beyond the amount so notified and entered. It
contains other provisions also of very great
practical importance, and among the number
the following: that for embezzlement, loss,
damage, or Id jury by collision, or for any act,
matter, or thing, loss, damage, or for^iture
done, occasioned, or incurred, without the
privity or knowledge of the owner, his liability
shall m no case exceed the amount or value of
his interest in the vessel and the freight then
pending. No part of the Act, however, ap-
plies to the owner of any canal boat, barge, or
lighter, or to any vessel of any description
whatsoever used in rivers or inland navigation.

A question may arise, whether the lakes bor-
dering on a foreign jurisdiction are or are not
excluded from the operation of the Act under
the term inland navigation ; but it is not neces-
sary at the present time to determine or con-
sider that question, as the first exception in the
contract of shipment is the only one set up in
this case, and there is no pretense that there has
been any transfer of the steamer under the
4th section of the Act for the benefit of the
libelants.

Carriers by water are liable at common law,
and independently of any statutory provision,
for losses arising from the acts or negligence
of others to the same extent and upon tne same
principles as carriers by land — that is to say
they are in the nature of insurers, and are
liable, as before remarked, in all events
and for anv loss, however sustained, unless
it happen from the act of God, or the pub-
lic enemy, or by the act of the shipper, or
from some other cause or accident expressly
excepted in the bill of lading. Duties remain
to be performed by the owner, or the master
as the agent of the owner, after the vessel is
wrecked or disabled, and after he has ascer-
tained that he can neither procure another ves-
sel nor repair his own, and those, too, of a very
important character, arising immediately out
of his original undertaking to carry the goods
safely, to their place of destination. Hid obli-
gation to take all possible care of the goods
still continues, and is by no means discharged
or lessened, while it appears that the goods have
not perished with the wreck, and certainly not
where, as in this case, the vessel is only
stranded on the beach. Such disasters are of fre-
quent occurrence along the seacoast in certain
seasons of the year, as well as on the lakes, and
it cannot for a moment be admitted that the du-
ties and liabilities of a carrier or master are varied
or in any manner lessened, by the happening of
such an event. Safe custody is as much the
duty of a carrier as conveyance and delivery ;
and when he is unable to carry the goods for-
ward to their place of destination, from causes
which he did not produce, and over which he
has no control, as by>the stranding of the ves-
sel, he is still bound by the original obligation
to take all possible care of the goods, and is
responsible for every loss or injury which might
have been prevented by human foresight, skill
and prudence. An effort was made by able
counsel, in King v. Shepherd, 8 Story, C. C,
358. to maintain the proposition, assumed by
the respondents in this case, that the duties of a

7-85

SUPRBMB COUBT OV THB UkITBD StATAB.

DiBC. Tkrh,

carrier after the ship was wrecked or stranded
were varied, and therefore that he was exempted
from all liability, except for reasonable diligence
and care in his endeavors to save the property.
Judge Story refused to sanction the doctrine,
and held that his obligations, liabilities and du-
ties, as a common carrier, still continued, and
that he was bound to show that no human dili-

?;ence, skill, or care, could save the property
rom being lost by the disaster. Anything
short of that requirement would be inconsistent
with the nature of the original undertaking
and the gleaning of the contract, as universally
understood in courts of Justice. Admit the
proposition, and it is no lonfi;er true that where
there is no provision in the contract of af-
freightment varying the liability of the carrier,
he cannot relieve himself from liability for in-
juries to goods intrusted to his care, except by
proving that it was the result of some natural
and inevitable necessity superior to all hu-
man agency, or of a force exerted by a
public enemy. Kent, Chief Juatiee, said in
mioU V. Russell, 10 Johns., 7, decided in 1813,
that it has long been settled that a common
carrier warrants the delivery of the goods in all
but the excepted cases of the act of God and
public enemies, and there is no distinction be-
tween a carrier by land and a carrier by water;
and the same learned judge also held that the
character, duty, and responsibility of a carrier
continues to attach to a master as long as he has
charge of the goods. A master, says a learned
commentator, should always bear in mind that
it is his duty to convey the cargo to its place of
destination. This is the purpose for which he
has been intrusted with it. and this purpose
he is bound to accomplish by every reasonable
and practicable method. Every act that is not
properly and strictly in furtherance of this duty
18 an act for which both he and his owners
may be made responsible. His duties as carrier
are not ended until the goo<ls are delivered at
their place of destination, or are returned to<
the possession of the shipper, or kept safely
until the shipper can resume their possession,
or they are otherwise disposed of according to
law. Kino v. Sheph&rd, 8 Story. C. C..549;
Abb. Ship. , 8th ed. Perk. , 478. These authori-
ties are sufficient, it is believed, to demonstrate
the proposition, that where a loss or damage is
shown, it is incumbent upon the carrier to
bring it within the excepted peril, in order to
discharge himself from responsibility. It is
not sufficient, without more, to show that the
vessel was stranded, to bring the goods within
the exception set up in thS case. Had the
goods perished with the wreck, it would be
clear that the loss was the immediate conse-
quence of the stranding of the vessel ; and as-
suming that the disaster to the vessel was the
result of the excepted peril, or of some natural
and inevitable accident, then the carrier would
be discharged. All the evidence, however, in
this case, shows the fact to be otherwise; that
the goods did not perish at the time the steam-
er was stranded; and the damage having since
occurred, the rule of law to be ascertamed is
the one applicable in cases where the injury
complained of arises subsequently to the dis-
aster to the vessel. Such interruptions to a
voyage are of frequent occurrence, and the rule
of law is just and reasonable which holds that

the master is bound to the utmost exertions in
his power to save the goods from the impending
penl, as it is no more than a prudent man
would do under like circumstances. In great
dangers great care is the ordinary care of pru-
dent men, and in ereat emergencies prudent
men employ their Best exertions; so that the
difference in the rule contended for, and the
one here laid down, is mikch less than at first
appears. Nevertheless there is a difference,
and in a question of so much practical impor-
tance it is necessary to adhere strictly to the
correct rule. Losses arising from the dangers
of navigation within the meaning of the excep-
tion set up in this case are not such as are m
any degree produced from the intervention of
man. They are such as happen in spite of
human exertions, and which cannot be pre-
vented by human skill and prudence. When
such efforts fail to save the goods from the ex-
cepted peril, the ultimate loss and damage, in
judgment of law, results from the first cause,
upon the ground that when human exertions
are insufficient to ward off the consequences the
excepted peril may be regarded as continuing
its operation. Such, it is believed, is the nature
of the contract between a carrier and shipper,
so far as it becomes necessary to examine it in
the cases under consideration. Carriers ma^
be answerable for the goods, although no actual
blame is imputed to them; and after the dam-
age is established, the burden lies upon the re-
spondents to show that it was occasioned by
one of the perils from which they are exempted
in the contract of shipment or bill of lading.
Clark V. Barnwell, 12 How., 272; Eich v.
Lambert, 12 How., 347; Chitt. on Carriers. 242;
Story on Bail. sees. 528. 529; 3 Kent's Com..
218; 1 Smith Lead. Cases. 813. ChmiUaux v.
Leech etal., IS Penn., 233; Fland. Ship., sec
257; Marvin on Wr. & Sal v., 21; Parsons' Mer.
L., 848; Smith's Mer. L.. 8d ed.. 38tt.

Applying these principles of law in the con-
sideration of the case, we will proceed to a
brief review of the evidence, in connection
with that already given, bearing upon the
questions of fact presented for decision. It
has already appeared that the steamer made the
light at Presque Isle on the Sd day of Decem-
ber, 1854. at four o'clock in the morning. At
that time she was on the usual course, and
was heading northwest. She had met with no
difficulty up to that time, and was tight, stanch
and strong, and in no want either of wood or
water. Her master says, however, that he
found it would be a great risk to haul her off
to get round the point, doubtless referring to
his previous statement that he had kept her off
her course to ease her in the sea. She was then
sailing northwest, and her course up to the
straits would have been, as the witnesses say.
either west- northwest, or northwest by west
half west, and there is no difference of opinion
among them that the course was direct and the
wind was a fair wind for steamers; and one
witness says that in a conversation with the
mate, while he was at Presque Isle, he heard
him say that they need not have entered the
harbor. All or nearly all the witnesses agree
that there is no difficulty in entering that harbor
in the daytime, and that the anchorage, though
rather limited in space, is safe and quite good
just northwesterly of the end of the pier and

62 U. S.

1866.

The Niaqaka. v. Cordka. Sams ▼. Bbxton.

7-85

out towards the lighthouse, and that the harbor
affords a good shelter to vessels in a storm, ex-
cept when the wind is blowing from a north-
easterly direction or east- northeast, and then
that its course is directly into the harbor, which
fact must have been well known to the master
and mate at the time they decided to make the
attempt. Many of the witnesses say that it is
more difficult to ^ in during the night, and
several testify positively that it is dangerous, and
some of Ihe more experienced na victors say
they would not risk the attempt in a dark
Dight. One witness, the master of The Ply-
mouth, called by the respondents, testified that
the steamer did not come right in; that she
broached to so near the mouth of the harbor,
that she was detained at least a quarter of an
hour. She, however, succeeded in entering
the harbor, and cast her anchor as before
stated. Four experienced navigators testify to
the effect that she should have kept on her
course; that it was not proper to enter the
harbor. On the other side, one witness says,
that whether it was good seamanship or not
would depend upon the position of the vessel;
and that if she was near in, he thinks it was
prudent, and that h# should have entered.
Another says that if he had considered either
Teasel or cargo in daneer, he should have gone
in by all means; ana the mate says that they
concluded that it was better to go in. One wit-
ness, called by the libelants, says he heard the
mate say, after the disaster, that it was unnec-
essary.

These are the principal facts bearing upon
the question, whether the master exercisM
a sound Judgment and discretion in entering
the harbor. Most of the facts in evidence
respecting the acts of the master after he
entered the harbor, as they appear to the court,
have already been stated, and need not be re-
peated. Experts were called and examintd
upon tho question whether the master evinced
proper skill and judgment in the attempt he
maae to anchor, and on that point three or four
witnesses, who are experienced navigators,
were called and examined by the lil^lants.
They testify to the effect that a master of a
steamer about to enter a harbor under the cir-
cumstances of this case ought to have both
anchors ready, so that if one will not hold the
yessel, he can cast the other; and they express
the opinion that such precautionary steps are
no more than Ordinary prudence; and one of
them says that it is customary to let go the small
anchor first, and if that will not hold, then to
Jet go the large anchor. On the other side, the
mate of the steamer testifies that they had not
time to let go the small anchor; and another
witness expresses the opinion, that if the large
anchor and the engine would not hold, then
there was nothing that could be done; and the
master of The Plymouth says that he knows of
nothing else that could have been done, except
to cast the anchor.

Numerous witnesses were examined on the
question whether it was practicable to have re-
moved the goods and stored them ; and whether,
if it had b^n done, it would have afforded any
better protection to the goods. On this point
the testimony of the witnesses is very conflict-
ing. All that can be done is to state the prin-
cipal facts, as they appear to the court.

See 31 How U. 8 . Buck 16.

Nineteen men were residing at Presque Isle
at the time of the disaster, mostly temporary
residents, in the employment of Frederick
Bamhara, a witness for the respondents. There
were four dwelling- houses there in which peo-
ple lived, and two unoccupied, and there were
two barns and a vacant shop ; all or nearly all
the dwellings were built of logs, and were
rudely finished. Three of those dwellings
were within a half mile of the place where the
steamer lay, which was within a quaiter of a
mile of ajoad extending round on the beach from
the pier, where The Plymouth lay, with her offi-
cers and crew on board. Several days previously,
the steamer Grand Turk had been wrecked,
twelve miles distant from Presque Isle, and her
officers and crew were there, consisting in all of
eight or nine men. There was a large sco^ in
the harbor, in good order, anchored near the pier,
and not in use. which several witnesses testify
might have been obtained jto lighten the steam-
er; and one witness testifies that the same scow
was used by the mate in the spring following,
to carry the eoods from the steamer to the
dock, before she was taken off by the tug.
Nine pumps, such as are used on board ves-
sels, and brought up to use on the other dis-
abled steamer, were lying on the beach, within
a half mile. All the witnesses a^ee that the
master of The Niagara never applied to any one
of them for any assistance, either in respect to
the goods or the steamer; and the mate admits
that they had made up their minds to leave, the
evening of the day after the ^kaster. Some of
the witnesses offered assistance, and it was de-
clined. Courtwright testifies that he heard a
conversation between the master and the mate,
in presence of fifteen or twenty persons, in
refen^nce to taking out the cargo of the steam-
er. The mate said to the master that they could
get the goods out of the steamer, and get her
alongside of the dock ; to which the master re-
plied, that it was too late in the season to do
anything with her; that he was bound to go
home; that he would not stop there for the
steamer and all that was in her. Other decla-
rations of the master, equally expressive of his
determination to return home, are also in evi-
dence; and being a part of the re$ gesta, are
clearly admissible to explain the motives of the
master, in connection with his acts. Many
witnesses on the side of the respondents express
the opinion that the goods could not have been
removed; and ah equal or greater number called
by the libelants express a contrary opinion,
and suggest various modes by which it might
have been accomplished in a very short time.
Such opinions, however, cannot have much
weight in determining the question. One im-
portant fact is clearly proved, namely: that the
ice went out of the harl)or the night before The
Plymouth left, and it was mild weather after
that, for the most part, till near the middle of
January, 1856.

Our conclusions upon these several ques-
tions may be briefly stated. In respect to the
one first presented, it is proper to remark that
it depends upon the proof whether the act of
the master, in seeking shelter in the harbor,
was reasonably necessary; and if it was, then
he is not in fault on that account. None of
the circumstances exhibit such clear and deci-
sive indications as would justifv the conclusion

4 " 4»

66-90

BuPRBMs Court of thb United Statbs.

Dec. Txbm,

I hat he did not think at the time that it was
the most expedient course to be pursued. That
he was without much experience as a master of
a steamer of this description, dr^es not seem to
be denied ; and it is equally clear that he had a
strong preference for a sailing vessel, as is
made evident by his own remarks, as well as in
another fact proved in the case, that he has re
sumed his more favorite employment upon the
water, for which, perhaps, he is better quali-
fied than for the one in which he was then en-
gaged. He says, in effect, that he found it
would be dangerous to proceed on the voy-
age, and the mate says they concluded that it
would be better to go into Presque Isle; and
on their own opinions thus expressed, and the
proofs as to the violence of the storm, his vin-
aication mainlv rests. Strong doubts are en-
tertained whether he acted wisely in depart-
ing from the course of the voyage, and yet the
evidence is not so fqll and clear in the case as
to induce the court to place the decision upon
that ground. Whatever dangers there were in
entenng the harbor, he succeeded in surmount-
ins:, and he cannot be held responsible for any
accident which did not happen. Masters have
a right, and oftentimes it is their duty, to seek
shelter from a storm ; and the fact that it would
have been better to have kept on the course,
may be more apparent now than it could have
been to any one at the time. Something must
l>e deferred to the judgment and discretion of
the master on such occasions, so that although
the circumstances tend strongly to prove that
he misjudged, or was wanting m that fearless,
prudent energy which he ought to have dis
played, still they are not of that decisive char-
acter which incline the court to make the de
cision turn upon that ground: and the same
remarkM also apply to his acts, and endeavors
to anchor the steamer after he entered the har-
bor. Knowing, as he did, that the wind was
blowing directly into the harbor, it is difficult
to see why it was that he brought the steamer
round to the position in the wind, so as to ex-
pose her to the danger which finally overcame
his efforts to accomplish the purpose for which
he says he sought the harbor. He knew the
course of the wind and the difficulties of the
undertaking, before he entered; and oufi^ht to
have been prepared to encounter them with the
best precautions in his power to make. When
he found that the anchor dragged,a great major-
ity of the witnesses say he ou^ht to have let go
the other. His own description of what took
place on the deck of the steamer after she entered
the harbor, as well as that giv^n by the mate,
evinces an indecision and want of energy quite
unsuited to the emergency in which he was
placed, and tends strongly to show that he was
wanting in the proper qualities of a skillful
and well instructed master. These considera-
lions create strong doubts in the mind of the
court, whether the respondents are faultless in
this particular, and yet the court is disinclined
to place the decision entirely on that ground,
as several witnesses, of some nautical skill, have
testified that they are unable to see that any-
thing more could have been done.

On the remaining ground of complaints
against the master, we are all of the opinion
that he was guilty of gross negligence. His
steamer lay within ten or fifteen rods of the

beach, and within a little more than a half mile
of the settlement, the number of whose residents
was temporarily augmented by the presence of
the officers and crew of the steamer Plymouth
and those of The Grand Turk ; and yet all he did,
so far as appears, to secure or recover the large
amount of property he had on board,wa8 to go
on shore, consult with one or more of the rest-
dents, advise with the master of The Plymouth,
and then came to the conclusion that nothing
could be done, and that it was best to leave the
goods on board, under the charge of three of
his crew. He remained, however, for two or
three days, until the storm had subsided and
the weather had moderated; and after two
other steamers bad arrived in the harbor, he
took paasage on The Plymouth, and returned
home, without having made any effort himself,
or requested the aid of others, either to get off
the steamer, or to remove and store the goods.
We are satisfied from the evidence that the
^oods might have been removed between the
time he left and the middle of January; and
we are not satisfied that it could not have been
done or successfully commenced during the
time he remained in Presque Isle. A removal
of a part would haveenaljed him to protect the
residue on board; and there is no sufficient
ground from the evidence to conclude that he
would have encountered any serious difficulty
in findinij places enough for storing to have
enabled him to remove from the steamer all of
that class of goods exposed to damage, and
store them on shore At that time the goods
had not received any considerable injury, and
most of them, in all probability, none* what-
ever. Prompt attention would have saved the
f property and protected the shipper from loss.
t must not be understood that a master can
abandon his ship and cargo upon any such
grounds as are proved by the evidence in this
case, or, incieed, upon any other, so far as the
goods are concerned, when it is practicable for
human exertions, skill and prudence, to save
them from the impending peril.

This view of the evidence renders it unneces-
sary to consider the other grounds of defense
set up by the respondents.

The decrees, iher^ore, of the District Court in
tfu respective cases are affirmed, with costs, in
each case for the libelants,

Cited-1 Wall., 51; 8 Wall., 860; 8 'Wall., 886: 9
Wall., 459. 8S5, 687: 14 Wall.. 597,808; 81 Wall., 16;
05 U. S., 606; 96 U. 8., 480; 2 Biss., 143; Woolw., 288.

THOMAS LEGGETT, Jb.. kt al., AppU.,

BENJAMIN G. HUMPHREYS.
(See S. C. 21 How., 66-80.)
Surety in sheriff's bond, discharged by payment
in other suits, of amount of bond — where courts
of law refuse relitf, resort may be had to equity
-"plea puis darrein continuance — surety not
UMebeyond penalty of bond— substitution of,
to securities— -subsequent indemnity does not
restore liabilily.

NoTB.— Sureties on nfflcial <md otherbondsi and for
debt*, UabUities, See note to U. S. v. Giles. 18 U. 8.
(0 Cranch), 212, and note to P. M. Gen. v. Early, 26
U. 8. (12 Wbeat.. 18 ; Rights and Habmits of mreties.
See note to Hall v. Smith, 46 U. 8. (6 How.), 96.

698 U. S.

1858

LbGGBTT ▼. HUMFHRBTS.

•6-80

That a suretv In a sherilT's bond had been oom-
peUed to pay the whole amount of his bond in oth-
er suits, before present defendants obtained their
Judgment against him. but after the Institution of
their suit, is a jrood defense to the aotlon, if pleaded
pui» danein continuance.

Wliere the complainant tendered his plea at the
proper time, and was refused the benefit of it, and
wa<t ffuilty of no laches, he is entitled to relief by
bill in equity.

Sureties are never held responsible beyond the
clear and absolute terms and moaninflr of their un-
dertakin^rs.

The liability of a surety cannot be extended by
implication.

A surety who pays the debt of his principal, will
be substituted In the place of the creditor to all the
liens held by him to secure the payment of his debt ;
and the creditor is bound to preserre them unim-
paired.

The liability of a surety is limited by the penalty
of his bond.

A subsequent indemnity by his principal wiU not
restore his liability when once dischariared.

An open and honest effort of a principal to pro-
tect his surety a^ralnst casualties incident to a re-
sponsibility about to be assumed for him, cannot
l>e obnoxious to objection.

Argued Dee, 16, 1858. Decided Jan. 4, 1869.

APPEAL from the Circuit Court of the United
States for the Southern District of Missis-
sippi.

The bill in this case was filed in the court be-
low, by the appellee, for an injunction against
the enforcement of a certain Judgment.

The Circuit Court decreed a perpetual injunc-
tion, according to the prayer oi the bill ; where-
upon the defendants appealed to this court.

The case is very fully stat^ by the court.

Messrs. R. Johnaon and J* H. Bradleyt

for the appellants: «

Two questions arise in this case.

1. Can the aid of a court of equity be had. to
stay proceedings at law, upon any facts of
which the party might have availed himself in
that suit?

2. Can the aid of a court of equity be had to
protect a surety from payment of the penalty
of an official bond, on the ground that he has
once paid the full amount, when before pay-
ment by the surety, the principal had placed m
his hands money or property exceeding the
amount of the penalty?

On the part of the appellants, we will en-
deavor to maintain the negative of both of
these propositions.

1.' We assume that Humphreys was duly
served with process, and employed counsel
throughout the original cause. In that cause
he "failed to make a proper defense at law
through negligence, and equity will not aid
him."

20 How.. 161.

2. It appears by the record that the property
of Humphreys was levied on Aug. 1. and Seot.'
12. 1840; was all sold in large parcels on Sept.
1. 1840. to David G. Humphreys; the money
for this was paid Sept. 23. It also appears that
the assignment to secure Humphreys was made
by Bland in March, 1840. It is fair to presume
from the face of this deed, that it embraced a
large portion of Bland's estate.

He admits that prior to the said executions,
his principal had placed in his hands the very

f>roperty which would have been primarily
iable for these debts. Yet it does not show
that he made any effort to avail himself of that
security, or give any satisfactory account of it,

See 21 How.

and suffered bis own property to be levied on and
sold, under circumstances of great suspicion.

Under such circumstances, equity will not
relieve him from the consequences of his own
actions.

9 How., 812.

Messrs. Oeovge £• Badger and J. M»
CarUale, for the appellees:

The right of Humphreys, upon the facts set
forth in his bill, to the relief he obtained in the
court below, was established by the judgment of
this court when this cause was here upon the
demurrer to the bill.

9 How. , 297.

The appellee is here, seeking to obtain jp
equity the benefit of a legal defense of which
he has been deprived at Taw, not by his own
oversiebt or misfortune, but by the rejection of
his defense in consequence of the mistaken con-
struction of the mandate.

The intention of the conveyance is declared
to be, that the appellee ''should be saved and
and kept harmless and indemnified against all
loss and damages." Or if he "should have
anything to pay by reason of said obligations,"
that he ** should be secured in the means of re-
muneration." The answer shows also that he
received an assignment of certain choses in ac-
tion from Bland for his further indemnity in
the premises. And from the answer and an
account exhibited therewith, it appears that
after the application of all the conveyed and
assigned effects. Bland is still his debtor to an
amount exceeding the judsment at law. All
the it^ms charged to Blanain tne account ex-
hibited with the appellees' answer, are properly
chargeable to him.

A principal is bound fully to indemnify his
surety against all loss resulting from his surety-
ship, including therein all reasonable expenses
to which he may have been put.

Heyden v. CeUtot, 17 Mass., 172.

A surety as such, is deemed a creditor in
equity, and both at law and in equity, an as-
signment for his indemnity is valid, though the
liability be future and contingent.

Williams v. Washington, 1 Dev. Eq., 187;
SUdstis v. Bell, « Mass., 889; Hendricks v.
Robinson, 2 Johns. Ch., 28S, 806; HaUey v.
Fairbanks, 4 Mas., 207; MiUer v. Himry, 8
Penn., 874.

As to the money placed in the hands of the
appellee in the creditors' suit, it is submitted
that it cannot'bo considered here for any pur-
pose.

1. For the reason already eiven as to a sup-
posed surplus of the assignea effects.

2. Because it has not ueen applied, nor is he
at liberty to apply it, for his indemnity.

8. B^use he holds it subject to a Chancel-
lor's decree, and has given bonds to replace it
when directed. It should be added, that if an
interest account be stated between Bland and
the appellant, as to the funds assigned by the
former and charges of the latter, there will re-
sult a balance in favor of the appellant, of
many thousand dollars beyond everything
which he has received.

Mr. Justice Daniel delivered the opinion of
the court:

The controversy between these parties, al-
though in its progress it has been much com-

6«-80

BuPRBinE Ck>x7itT or thb Unitbd Btatbs.

Dbc. Tbbv,

plicated and involved, yet, as to the principle
by which its true character is defined, and b^
which its decision should be controlled, is
simple enough. That principle is the extent
of the pecuniary responsibility sustained by
the surety in an official bond for the conduct
of his principal.

To a correct comprehension of the position
of the parties to this cause, some length of de-
tail as to the facts and pleadings it contains, is
necessary.

The appellee, together with one Grissom,
having in the yenr 1887 bound himself in the
penalty of $15,000, as surety, to the official
b9nd of Richard J. Bland, sheriff of Claiborne
County, in the State of Mississippi, a suit was
instituted in the name of the Governor of the
State upon thai bond, for the use of the ap-
pellants, in the Circuit Court of the United
States for the Southern District of Mississippi,
charging a breach of the condition of that
bond by Bland, in having released from jail one
McNider, against whom the appellants had re-
covered a judgment in the circuit court afore-
8aid,and whom, after being charged in execution
in that court, the Marshal had committed to the
custody of Bland, the sheriff. Undet certain
provisions of the Statutes of Mississippi, it was
pleaded in defense to this action, that McNider
being insolvent and unable to pay his prison
fees, the appellants, who were non residents,
had failed to pay those fees, or, as required by
the law of the State, to give security for their
payment, or to appoint an agent within the
county on whom demand for the prison
fees could be made: and that, in consequence
of such failure, McNider had, by a regular
judicial order, been discharged from jail.as an
insolvent debtor. Upon a demurrer to the
plaintiff*s replications to these pleas, the cir-
cuit court gave judgment with costs in favor
of the sheriff and the appellee, Humphreys,
the suit having been previously discontinued
as to the other surety, Grissom. 'This judgment
was upon a writ of error reversed by this court,
and the cause was remanded to the circuit court
with instructions (Bland, the sheriff, pend-
ing the cause here, having died) to enter a judg-
ment against the appellee, as surety, for the sum
of $3,910.78, besides the costs. Vide McNutt v.
Bland eial., 2 How., 28. In the interval be-
tween the emanation of the writ of error and
the reversal of the judgment of the circuit
court, two judgments were, on motion, ob-
tained in the state court against the sheriff
and Humphreys as his surety, by the Planters'
Bank of Mississippi, one for the sum of
$12,825.22, and the other for $2,674.75, making
an aggregate amount exceeding the penalty of
the bond in which the appellee was surety;
and the property of that surety was levied
upon and sold under execution, and the pro-
ceeds applied in full satisfaction of the amount
of the penalty. Upon the receipt in the cir-
cuit court of the mandate of this court, the
appellee, as surety as aforesaid, moved the cir-
cuit court for leave to plead puis darrein con-
tinuance, the judgments, levy, and satisfaction
above mentioned, in fulfillment of his bond
and of his liability for the sheriff; but the cir-
cuit court refused leave to plead these facts in
discharge or satisfaction of the penalty, and,
in literal obedience to the mandate of this

court, rendered judgment against the appellee,
as surety for the sum hereinbefore mentioned.
The appellee, Humphrcvs, then exhibited his
bill on the equity side of the circuit court, al-
leging the aforegoing facts, and averring,
moreover, that no notice or process of any kind
had ever been served upon him in the suit of
McNutt V. Bland et al. , but that the return of
the officer of service as to the appellee was ab-
solutely false. Upon these allegations, an in-
iunction to the judgment at law was granted
by the circuit court, but subsequently, upon
a demurrer to the bill by the appellants, the in-
junction was dissolved and the bill dismissed.
From this decree of dismission an appeal was
taken to this court, who, after a hearing, ex-
pressed the following conclusions, viz. :

*' In the case before us, the surety had been
compelled to pay the whole amount of his
bond by process from the state courts before
the present defendants obtained their judgment
against him, but after the institution of their
suit. This would have been a good defense to
the action, if pleaded puis darrein contin-
uance. The complainant tendered his plea at
the proper time, and was refused the benefit of
it, not because it was adjudged insufficient as a
defense, but because the court considered they
had no discretion to allow it. The mandate
from this court was probably made without ref-
erence to the possible consequences which
might flow from it. At all events, it operated
unjustly by precluding the plaintiff from an
opportunity of making a just and legal de-
fense to the action. The payment was made
whilst the cause was pending here. The party
was guilty of no li^ches, but lost the benefit of
his defense by an accident over which he had
no control. He is, therefore, in the same con-
dition as if the defense had arisen after judg-
ment; which would entitle him to Telief audita
querela, or bill in equity. We aw, therefore, of
the opinion that the complainant was entitled
to the relief prayed for in the bill, and that the
decree of the court below jshould be reversed."

The cause was thereupon remanded to the
circuit court for further proceedings to be had
therein, in conformity with the above opinion.
Vide 9 How., 318, 814, Humphreys v. Leggett
et cU, On the filing of the mandate in this lat-
ter case, the defendants (the present appellants)
being ruled by the circuit court to answer
the bill for the injunction, admit by their an-
swer the recovery of their judgment against
Humphreys as surety for Bland. They ac-
knowledge their belief of the judgnients in
the state court against the sherin and his
surety, and the levy under those judgments,
and the return of satisfaction upon the execu-
tions by the proper officer, but allege that the
judgments were fraudulently suffered in order
to defeat the appellants; that no money was
paid under the pretended sale, and that the
property was retained by Humphreys. In an
amended answer, filed by leave of the court,
the appellants allege that Bland, the sheriff,
had transferred the judgments in the state
court, for $10,524, to Humphreys, who, under
that assignment, had received the sum of
$18,000; that he had not discharged the penalty
of the sheriff's bond, and from various sources
had received funds exceeding all his liabili-
ties arising therefrom. Subsequently, viz. : in

62 U. S.

185&

LSQGBTT V. HUMFHBBTB.

66^80

1851, the appellants, by a cross- bill against the
appellee, charged that Bland, to indemnify
the appellee as surety in the bond of 1837, had
assigned certain debts and other subjects of
property, real and personal, to an amount more
than equal to the penalty of that bond ; that
amone these subjects were the fee bills due to
Bland, as sheriff, to a large amount, and also
the judgments set forth in the original bill as
having been recovered in the slate courts; and
that these judgments had been discharged by
Humphreys by notes purchased by him at the
depreciation of fifty cents in the dollar. To
this cross-bill a demurrer was interposed by
Humphreys, but, upon being ruled bv the
court to answer, he admitted that in March,
1840, Bland conveyed, in a deed of that date,
to Volnev Stamps, the property mentioned in
that deea, in trust to indemnify the appellee as
surety in the official bond of Bland, of Novem-
ber, 1837. and to indemnify the same appellee
and one Flowers, as sureties for Bland on his
official bond of 1839, and to save them harm-
less against all loss and damage, and all money
paid, or charge or expense to be incurred, in
oonsequence of being sureties in the said offi-
cial bonds. Ue admits that so much of the
property as could be found has been sold by the
trustee, and that from the proceeds of sale, after
deducting the expenses of sale, respondent has
received three fourths, amounting to $3,825,
and the said Flowers one fourth, amounting to
$1,275, which make the whole amount that nas
been realized from the trust fund. He admits
that in 1840, for his further indemnity, Bland
assigned him all the fees then due to the former
as Sheriff of Claiborne County, but alleges
that from this source there has been received
an aggregate amount of onlv $3,288.17. as
shown by the statements of the persons em-
ployed in the collection of those fees, filed as
exhibits with the answer. The respondent
further admits, that after the recovery by the
Planters' Bank of the $12,825.22 against said
Bland and respondent, which recovery was
founded on an original judgment of the said
bank against P. Hoopes, J. HT Moore, and John
M. Carpenter, the said Bland claiming to be the
owner of that judgment, did assign all his
rights and interests therein to respondent, for
bS indemnity, as he 4iad to pay the penalty of
the bond.

The respondent claims the benefit of that
judgment, but alleges that he has collected
nothing under it from either Hoopes or Moore,
each of whom became insolvent prior to 1840,
and still continued insolvent. That the judg-
ment of the Planters* Bank against Campbell
Pierson and Moore, for $3,702.66. had always
been unproductive and worthless, and that
nothing had been or would be received there-
from, by reason of the insolvency of the de-
fendants in that judgment. That in a suit
pending in the Superior Court of Chancerv of
the Stale of Mississippi, upon a creditor's bill,
the respondent has exhibited the former judg-
ment of the Planters' Bank for $10,855.93, as
a claim against the estate of H. Carpenter &
Co. , and the commissioner has reported it as a
valid claim for that amount, with interest
thereon from November 1st. 1840. That this
report having been excepted to, and remaining

See 21 How.

still a subject of contest, the Court of Chancery
had in the mean time, out of the funds of the
estate, ordered the payment to the appellee of
the amount of the said judgment or claim for
$10,855.93 with interest, amounting in the
whole to $18,852.75, upon his entering into
bond with security to refund that amount in
the event that it should be disallowed by the
court. With this answer denying his having
been indemnified, were exhibited as parts
thereof, the deed of trust from Bland, the
amount of fees collected under the assignment
from Bland, and a statement of the account
between Bland and Humphreys. With the
original bill of Humphreys were exhibited al-
so* the bonds in which he was bound as sure-
ty, the records of the judgments on motion
against the sheriff and Humphreys; and by
the deposition of Maury, the attorney for the
Planters' Bank, was proved the satisfaction of
those judgments by sales of the property of
Humphrevs under execution. At the May
Term of the Circuit Court, in the year 1856, this
cause having been submitted to the court upon
the original bill, the answer and replication,
and the exhibits and proofs, and upon the cross-
bill and the answer thereto, and upon the ex-
hibits therewith, the following decree was
then made: It is ordered, adjudged and de-
creed, that the injunction heretofore granted
in this cause be made perpetual, and that the
defendants, Leggett, Smith and Lawrence, and
their agents and attorneys, be, and they are
hereby forever enjoined and restrained from
taking out any execution upon a certain judg-
ment rendered on the law side of this court, on
the 14th day of May, 1845, in favor of Alexan-
der McNutt, Governor, suing for the use of
Leggett, Smith and Lawrence, against the said
Humphreys, the complainant, for the sum of
$6,355.88, being the judgment mentioned in
the bill of complaint in this cause, and that
they be forever enjoined and restrained from
takmg or adopting any step or proceeding to
enforce the payment of the said judgment by
the complainant Humphreys, or the collection
thereof out of his estate. And it is further ad-
judged and decreed, that the said complainant
do recover of the said defendants his costs of
suit to be taxed." This decree having been
brought by appeal before the court, its legality
and justice are now the subjects for our ex-
amination.

With reference to the defense essayed by the
defendant in the suit of McNuti v. Bland, after
the filing of the mandate of this court in that
cause, the opinion of this court in the case of
Humphreys v. Leggett et al. would seem to be
conclusive, both as to the period at which the
defense was proffered, and the legitimacy and
sufficiency of the defense, if substantiated by
proof. The facts tendered in defense coming
into existence after the, issues previously made
up, were not on that account less essentially
connected with the character of the controver-
sy, nor could the defendant for that reason
have been justly deprived of their influence
upon that controversy. He appears to have
sought to avail himself of the earliest and only
opportunity for alleging them by plea puis *
darrein continuance. In support of his ri>;ht
so to plead, it would be addmg nothing to the

6(^-80

BUFBBMB GOUBT OV THS UHITBD StATBS.

Dbc. Tbbm,

clearly expressed opinion of this court in the
9th of Howard, to refer to cases collated in
elementary treatises on pleading.

In judging of the character or suffciency of
the defense alleeed for the exemption of th^
appellee, there uiould be taken as a guide the
rule, which is perha(>8 without an exception,
that sureties are never held responsible beyond
the clear and absolute terms and meaning of
their undertakings. Presumptions or equities
are never allowed to enlarge or in any degree
to change their legal obligations. This rule is
thus forcibly put by GhancsUar Kent in the 8d
Commentaries, p. 124, where he says: **When
the contract of a guarantor or surety is duly
ascertained and understood by a fair and liber-
al construction of the instrument, the principle
is well settled, that the case must be brought
strictly within the terms of the guaranty, and
the liability of the surety cannot be extended
by implication." It will be seen that, to a
certain extent, even the creditor whose claim
the surety has under the terms of his obligation
been compelled to satisfy, may be required to
co-operate in effecting the indemnity of the
latter. Thus it is said, on the same page of
the work Just quoted, that ''the claim against
a surety is atrictmiini juHb; and it is a well
settled principle, that a surety who pays the
debt of his principal, will in a clear case in eq-
uity be substituted in the place of the creditor
to all the lien»^held by him to secure the pay-
ment of his debt ; and the creditor is bound to
f)reserve them unimpaired when he intends to
ook to the surety." For this doctrine are cited
numerous Eoglish and American authorities.

In the case of Graves v. McCaU, 1 Wash.
Rep. , 864, it is said by the Court of AppNeals of
Virginia, *' that a court of equity will not
charge a surety farther than he is bound at
law; but if a surety bound at law cannot be
charged there for the want of the instrument
of wljich the creditor Is deprived by accident
or fraud, a court of equity will restore the
• paper to its legal force."

In the case of The UniUd States v. WhUe
et.al.. I Wash. Cir. Ct. 417. it is ruled by
Washington, Justice, '* that a surety can never
be bound beyond the scope of his engagement,
and therefore a surety for the faithful service
of B as clerk to C. who afterwards enters into
partnership with D, is not liable for unfaithful
conduct to C and D. " The same law has been
explicitly and repeatedly ruled by this court,aB
will be seen in the cases of Miller v. Stewart, 9
Wheaii.,m)\ of MeCHUv. The Bank of the United
States, 12 Wheat., 611; and The United States
V. Boyd et al, 15 Pet.. 187.

The principle which limits the liability of
the surety by the penalty of his bond, inheres
intrinsicaUy in the character of his engagement.
He does not undertake to perform the acts of
duties stipulated by (j^is principal, and would
not be permitted to control their performance;
and could not, where his principal was a pub-
lic officer, le^lly assume the functions of that
principal. The undertaking of the surety is
essentially a pledge to make good the misfeas-
ance or non feasance of his principal to an
amount coexensive with the penalty of his
bond. In addition to this interpretation, result-
ing from the character of the obligation of the
surety, the Statute of Mississippi, which neces-

sarily enters into and controls all contracts
made under its authority, expressly limits the
responsibility of a surety in a sheriff's bond to
the amount of the penalty of that bond. Vide
Hut. Miss. Co.. p. 441, art. 8, sec. 1. Indeed,
it has scarcely been contested in argument in
this case, that the extent of the surety's liabil-
ity upon the sheriff's bond was measured by
the amount of the penalty. The great effort of
counsel has been to show in this case that sat-
isfaction of the penalty of the bond has not
been honestly made, but has been fraudulently
evaded.

1st. By the provisions of the deed of tmst
for the indemnity of the appeHee, and in the
application of the property thereby conveyed,
and by the subsequent assignment of fees to a

against the

large amount, exceeding together in value the
judgments of the Planters Bank a/
sheriff and his surety.

2d. By the sale of the property of the appel-
lee under the executions m behalf of the Plant-
ers' Bank at a sacrifice greatly below its value.

The force of those positions will now be
considered.

Whilst it may be conceded that a fraudulent
combination between the officer and his surety
for the purpose of shielding the property of
both or either from just responsibility, and in
contemplation of delinquency in the former,
would have the effect of vitiating any compact
or instrument made with such a design, it is
undeniable that an open and honest effort of a
principal to protect his surety against casualties
incident to a responsibility about to be assumed
for him, cannot be obnoxious to objection ; and
it .is equally clear, that the simple fact of the
existence of such an effort, unattended by any
known indicium of fraud, and unassailed by
plain or probable direct proofs, can warrant
no just impeachment of such an effort, which
may be praiseworthy and lust with reference
to its object, and calculated to promote the per-
formance of services to the public which other-
wise could not be undertaken. The practice of
providing such an indemnity for sureties is
known to be usual and frequent, and it would
be difficult to imagine an objection, either
legal or moral, to its application to the extent
to which the surety had been made answer-
able upon his bond. The right of a debtor
in the first instance, to apply his payments
wherever his funds are liot specifically bound,
is universally admitted. The judgment of the
circuit court in the case of McNutt v. Bland,
having been against the plaintiff, and the deed
by Bland for the indemnity of the appellee
having been executed for a bona fide considera-
tion pending the proceedings on the writ of er-
ror to the circuit court, and no final judgment
of that court having been entered to this day
there was no specific lien on the property of
Bland which prevented its appropriation in
exoneration of his surety, or which forbade
any payments or assignments by him in dis-
charge of his liability. A strong illustration
of this position may be seen in the case of The
Untied States v. Cochran, decided by Marshall,
Chief Justice, and reported in the 2d vol. nf
Brockenbrough's Reports, p. 274. It is one nf
that class in which priority is claimed for the
United States in instances of insolvency of iheir
debtors. It is thus stated by the judge:

at u. 8.

1868.

LlVBBHOBK T. JSNCKES.

12(V-:46

" Robert Cochran, Collector at the port of
Wilmingtoo. N. C. being Terr largely indebt-
ed to the United States, made a deed of his
property for their benefit. Previous to the
execution of this deed, he deposited $10,000,
the amount of the bond executed to the United
States for the faithful performance of his duty,
in a trunk which was placed in the bank, and
absconded. From Baltimore he addressed a
letter to his sureties, requesting the trunk to be
taken out, and the money to be applied to their
exoneration. The money was received at the
Treasury, and the bond given up. It being
afterwards discovered that this was the mone^
of the Collector, and not of the sureties, this
suit is bh>ught to compel the sureties to pa^
the amount of the bond, considering the money
received as constituting no equitable dis-
charge as to them. * * * The Act of
Congress does not transfer the property itself
to the United States, but subjects it to their
debts in the first instance. The assignee holds
il as the debtor would hold it, liable to the
<daim of the United States, and if he converts
it to his own use, or puts it out of the reach of
the United States, he is undoubtedly responsible
for its value. ♦ ♦ ♦ But the power of
the debtor to apply his payments is co-extensive
with that of the creditor. This principle has,
il is believed, never been denied. If it be cor-
rect, then the power of Mr. Cochran to appiv
• this sum of money in discharge of the bond,
and in exoneration of the sureties to it, is co-
extensive with that of the United States to make
the same application of it. If, then, Mr. Coch-
ran had, without any assignment of his proper-
ty paid this money into Uie Treasury, with a
mrection that it should be applied to the bond,
be would have exercised a riffht which the
law gives to every debtor. « * * Does the
transfer of this money to the sureties change
the law of the case? We think not. It has
been very properly argued that the Act of Con-
gress gives to the debt due to the United Stales
priority over debts due to individuals; but not
to one part of the debt due to the Udited States,
over any other part of it; nor does it vest the
property absolutely in the United States,
though it gives them the right to pursue it for
the purpose of appropriating it in payment. It
would seem to follow, that the right to apply
payments whilst the money Lb in the hands of
the debtors, is not affected by the Act of Con-
gress, but remains as it would stand independ-
ent of that Act. If, then, the sureties had de-
clared to the Treasury Department that the
money was received from Mr. Cochran, to be
paid in discharge of their bond, and had
tendered it in payment thereof, we think the
tender would have been valid, and might have
been pleaded in a suit on4he bond."

This was a case where there was a legal prior-
ity in the creditor, where there exist^ a quoH
lien, or a restriction upon the power of the debt-
or to dispose of liis property, so as to exempt it
or its value from the claim of the creditor. In the
case under consideration, no such restriction
existed; no lien by judgment or other specific
claim, upon the property conveyed in trust to
Stamps; and no evidence havin/^ been adduced,
of a fraudulent purpose in making that convey-
ance, no valid objection is perceived to an ap-
plication of the proceeds of that conveyance

See 81 How.

towards the indemnity of the surety; and these
proceeds, together 'with the amount of the
sheriff's fee bills collected, it is shown by the
testimony, are far short of the penalty of the
bond discharged by the surety.

The right to any surplus which, upon a set-
tlement between the appellee and Bland or his
representatives, may remain in the hands of the
former, we regard as not involved in nor perti-
nent to this controversy, which relates regu-
larly and exclusively to the question whether
the appellee, as the surety for Bland, has f ul-
IfiUea the exigency of his fiond by a satisfac-
tion of the penalty.

In answer to the objection which has been
urged, and founded on the alleged sacrifice of
the property of the appellee in the sale under
the judgments of the Planters' Bank, it may
be remarked, that the relevancy or force of such
an objection is not perceived. The questions
here are these, and these only, viz. : whether the
penalty of the bond executed by the appellee has
been satisfied, or whether there remains still a
portion of that penalty of which the appellants
can claim the benefit. The judgments in favor
of the bank, the levy upon the property of the
appellee, the sale and satisfaction to the full
amount of the penalty, are facts all established
of record. Whatever sacrifice of the property
of the appellee by these undoubted proceedings
may have been produced, is his loss, and his
only, and can in no wise affect the validity of
his release by the fulfillment of his obligation.

The decree of the Circuit Court if, therefore, af-
firmed, itith costs.

Cited— 2 WaU., 886 ; 94 U. S., 668.

EDWARD M. LIVERMORE and DAVID
SEXTON, Appts.,

THOMAS A. JENCKES, ALEXANDER
FARNUM. SAMUEL HARRIS and
STEPHEN WATERMAN.

(See 21 S. C, How., 126-146.)
Rhode Island cugignment, when legal.

In Rhode Island an assignment is not voidable, as
tendinflr to hinder, delay and defraud creditors ;
because there in a reservation in it to the assignor
of the dividends of such creditors as should refuse
to t)ecome parties to it, and to release their de-
mands in consideration of the dividends they migrht

It would have been had the assignment been
made in New York, by persons residing there.

But the assignment was made in Rhode Island,
by a person, and to persons, residing there, and is
in every particular just such an one as, bv the laws
of that State, merchants and others in falling cir-
cumstances, residingr there, are allowed to malcein
favor of creditors, wherever the property of the
assisrnor may t>e.

The complainants never acquired any Hen upon
the property in New York, so as to subject it le-
gally or equitably to their demand.

Submitted Dee. 17, 1858. Decided Jan. 4. 1869.

APPEAL from the Circuit Court of the
United States for the Southern District of
New York.

NoTB.— -AwrtijFnment with preferencM, when valid,
when not. See note to Marbury v Brooks, 20 U. S. (7
Wheat.), SM.

i^uA

BUPRBME OomiT 09 THV UnITBD StATBB.

Dec. Tsmc,

The bill in this case was filed in the court
below, by the appellants,* as judgment credit-
ors of the respondents. Harris & Waterman,
to avoid an assignment made by Waterman to
respondents, Jenckes and Farnum, in trust for
the payment of the creditors of said Harris &
Waterman, and Waterman individuallv. The
assignor and assignees were citizens of Rhode
Island, where the assignment was made. The
circuit court, having found that the property,
situated in the State of New York, covered by
the assignment, had been converted into money
and the proceeds transferred to Rhode Island
prior to the filing of the bill in this case, that
the complainants had no lien on said property,
and that there was no fraud in making said as-
signment, entered a decree dismissing the bill,
with costs.

From this decree the complainants took an
appeal to this court.

A further statement of the case appears in
the opinion of the court.

Mr. C. L. Monell, for appellants:

1. The circuit court erred in not deciding
that the assignment from Waterman to Jenckes
and Farnum was fraudulent and void as affect-
ing the complainants below, and the other
creditors of Waterman residing within the
State of New York at the time of the assign-
ment, so far at least as the assignment affected
the estate of the assignor within the State of
New York at the time of the execution and
delivery.

Waterman, being insolvent, and holding
property in the State of New York, assigned
to J. and F., giving certain preferences, and
directing the residue to be paid to such of his
creditors at large as should release their de-
mand within six months, reserving to himself
the dividends of such creditors as should refuse
to release.

Such an assignment is adjudged fraudulent
as to the creditors, by the laws of the State of
New York. As to the property situated within
the State of New York and the claims of resi-
dent creditors, the laws of the State of New
York are paramount, and do not yield to the
laws of the domicil of the debtor.

The States have not seen fit to lodse in
Congress power to harmonize the conflict of
their internal systems. Such a power, if lodged
in the Federal Grovornment, would necessarily
involve the right to carry the laws and systems
of polity prevailing in one State, within the
territorial limits of another.

Story's Confl. Laws, sec. 18.

The language used by Mr. Justice Grier in
Caskie v. Webster, 2 Wall., Jr., 131, would, on a
cursory examination, appear to imply that it
was a part of the duty of the federal courts to
apply to controversies of this character a sort
of modited jfM gentium, adapted to harmonize
with the objects and purposes of the union of
the States. A careful examination of that case
will show that such was not his intent.

The court must give the same judgment
which the courts of the State of New York
would have been bound to give, had they ad-
judicated the case.

See remarks of Ch. J. Marshall in Elmendorf
V. Taylor, 10 Wheat., 169.

By the laws of the State of New York, an
insolvent's assignment containing the clause

requiring creditors to release or forfeit their
dividends, and directing them to be paid in
that case to the assignor, is fraudulent as to
creditors, and is void.

The Revised Statutes re-enact the Statute qf
18 Eliz., which is an affirmance of the common
law

2 R. S., 187. sec. 1; Meekar v. WUwn, 1
Gall., 419.

The question of the invalidity of such a res-
ervation, was finally settled in the State of New
York by the decision in Qrofoer v. Walkman,
11 Wend., 187, in the Court for the Correction
of Errors.

Ooodrieh v. Downs, 6 Hill, 488; see, also,
Bydop V. Clarke, 14 Johns.. 468; Austin v.
Bell, 20 Johns., 442; Staving v. Brinkerhoff, 5
Johns. Ch., 829; Murray v. Biggs, 16 Johns.,
671.

The assignment being of a nature forbidden
by the laws of New York, according to the
acknowledged principles governing the juris-
prudence of that State, it cannot be asserted
there as affecting property within that State,
and as against a creditor of the assignor there
resident.

In Leroy v. Oroumingshield, 2 Mas., 167,
Judge Story says: that '* personal contracts are
to have the same validity, interpretation and
pbligatory force in every other country, which
they have in the country where they are made
or are to be executed. " ' ' An exception is, that
no nation is bound to enforce or hold valid any
contract which is injurious to its own rights
and those of its own citizens, or which of&nd
public morals or violate the public faith."

The same doctrine was held by Judge Wash-
ington in Ogden v. Saunders, 12 Wheat. , 259.

In JTie Watchman, 1 Ware. 232. Ware.
Diet. J, savs: "No principle can be more in-
controvertible than this: that every* nation has
the exclusive legislative and judicial authority
within its own territorial limits."

No rule or notion of comity can require a
State to permit to foreigners privileges denied
to its own citizens. Forjudge Nelson, in Frost
V. Brisbin, 19 Wend., 16.

Huberus says: '* The effect of a contract
entered into at any place, will be allowed ac-
cording to the law -of that place, in other coun-
tries, if no inconvenience will result therefrom
to the citizens of that other country, with re-
spect to the ri^ht which they demand."

See translation in note, 8 Dall., 870; Olivier
V. Townes, 2 Mart., N. S., 98, 102; Story,
Confl. Laws, sec. 890; see, also. Hunter v.
B)tU, 4 T. R., 192; Pcftter Y.Brown, 6 East, 124.

The greatest diversity exists between the in-
solvent systems of the different States and for-
eign countries; all, however, recognize, in
greater or less degree, the right of the State to
assume the disposition of the estates of insolv-
ents.

If the insolvent or bankrupt laws of a foreign
country or State are not permitted to have any
extra-territorial efficacy, for the reason that
every State must determine for itself the b«t
mode of administering the estates of insolv-
ents, with how much more reason should we
refuse to permit a citizen of a foreign State
voluntarily to make such a disposition of hia
property in this State, at variance with our in-
solvent laws.

1858.

LlYBRICORE ▼. JbNCKBS.

12t>-146

Lt ChetaXier t. Lynch, 1 Doug., 76; Abra-
ham Y. PUstoro, 8 Wend., 538, 551; Harruon
▼. SUrry, 5 Cranch. 298; OydAn v. 8aunder»,
13 Wneat., 318; 2 Kent's Com., 880. 881.

The cases on insolvency and administration,
are similar in principle in this respect.

Harriion v. Sterry, 5 Cranch, 289.

In Ingrtiham v. Gey&r, 18 Mass., 146, it was
held that the assignment, though valid in
Pennsylvania, was prejudicial to citizens of
Massachusetts who were creditors of the insolv-
ent, and therefore void, as far as debts due to
the insolvent from citizens of Massachusetts
were concerned. The principle upon which
this case was decided, is more fully presented
in BiakcY. WiUiatM, 6 Pick., 286, and is in
strict accordance with the authorities above
cited. Under the laws of Massachusetts, all in-
sohreuts' assi^ments were held void for want
of consideration, except so far as creditors had
actually become parties to them.

NoBtrandv, Aitoood, 19 Pi«k., 281; see, also,
FhU Rivet Iron W<yrk» v. Oroade^ 16 Pick., 11 ;
JHeamt v. Hapgood, 19 Pick., 105.

In Maine, in tbx v. Adanu, 5 Greenl., 245,
the court held all foreign assignments void as
to the attachin>ir creditors; but it appears to be
doubtful whether the rule may not be there
limited to the reasonable bounds contended for
in the present case.

Pearaon v. Groiby, 23 Me., 261; The Watch-
man, 1 Ware, 232.

In Connecticut, the doctrine contended for
is fully established.

AttDoodv. Protection Ins. Co., 14 Conn., 555;
RiehmondviUe Man. Co. v. PraU, 9 Conn., 487.

So in New Jersey.

Varnumv. Camp, 1 Green., 826.

And in Missouri.

Brown v. Knox, 6 Mo., 802.

In Pennsylvania, the precise point does not
appear to lie adjudicated, although there are
floating dUta adverse to the principle contended
for.

Speed V. May, 17 Pa., 91 ; see. also. Law v.
MOU, 18 Pa., 185.

These cases are very brief, and evidentlv re-
ceived little examination or careful considera-
tion.

The counsel also referred to the case of Cae-
kU V. Wd>9ttr, 2 Wall., Jr., 181, decided by
Judge Grier in the third circuit, and oontendea
that it 'was not controUiig. The courts of the
United States must either recognize that the
decisions of each State are final in all ques-
tions of state origin and jurisdiction, or they
must harmonize the discord, by deciding inde-
pendently of the state courts upon authority
and principle.

Should the latter course be pursued, it re
mains for us to consider how the question of
the validity of such assignment stands In that
point of view. In AfJbert v. Winn, 7 Gill,
446, decided in the Court of Appeals of the
State of Maryland, the court states the condi-
tion of the question upon the state authorities
at that time.

See authorities cited in 1 Aul Lead. Cas.,
69, 85; see. also, Sanderaon v. Bradford, 10 N.
H., 260; 19 Pick., 11,281.

Massachusetts was improperly placed among
the latter States; for in that State all assign-
ments being held void, except so far as the

See 31 How.

creditors actually became parties to them, the
question could arise.

Counsel also referred to the case of PMppen
V. Durham, 8 Grat., 457, as supporting his view
on principle.

Smce the decision in Albert v. Winn, New
Jersey has acceded to the States holding such
assignments void.

Vamumv. Camp, 1 Green, 826.

Rhode Island should be added to the
States sustaining the clause. At the present
time, the States whose systems of jurisprudence
forbid such clauses, are New York, Ohio,
North Carolina, Mississippi, Missouri, Ala-
bama, Connecticut, Illinois, Pennsylvania,
New Hampshire, Maine, Maryland and New
Jersey.

On the other side stand Rhode Island and
South Carolina, side by side.

See, also, the opinion of Marshall, Ch., J.,\n
Bra^iear v. West, 7 Pet., 608; Judge Curtis in
Heydoek v. Stanhope, 1 Curt., 471 ; and remarks
of Judge Nelson in Cunningham v. Freeborn,
11 Wend., 256.

The assignment, therefore, being void, the
appellants are entitled to a decree against the
assignees for the payment of their debt.

2. The assignment to J. & F. being void bv the
laws of the State of New York, the appellants
were entitled to a decree in the court below,
for an account of the property or the proceeds
thereof, which came into the assignee's hands
from the State of New York.

Had this case been carried to a decree in the
New York courts, the appellants would have
been entitled to an account against the asign-
ees, as above stated.

Upon these points, the counsel referred to and
discussed the following authorities:

Beck V. Burdett, 1 l*aige, 808; N. Y. Rev.
Stat., part III, ch. 1, tit. 2, sec 58; Hodden v.
Spader, 20 Johns., 558.

By the law of the State of New York, the
assignment was void as to creditors. The test
of that is, that a creditor mav bv a levy take
the property out of the hands of the assignee;
and the invalidity of the assignment is a bar to
an action of trespass brought by the assignee.

HysLop V. Clarke, 14 Johns., 458.

The cases of Hone v. Henriques, 18 Wend.,
243, and Mills v. ArgaU, 6 Paige, 577, relied
on by the respondent, are not in point.

The assigned estate, notwithstanding the
fraudulent conveyance, remaining as against
creditors the property of the insolvent, no act
of the assignees could defeat the right of the
creditors to have their estate applied to the
payment of their debt.

Ames V. Blunt, 5 Paige, 22; Hodden v.
Spad^, 20 Johns., 553.

The pretended sale to Hill, Carpenter & Co.,
far from being a protection to the assignees,
was in itself an act of fraud directly aimed
against the N. Y. creditors.

The conveyance of the proceeds of this sale
into the State of Rhode Island, does not relieve
the assignee from liability to the New York
creditors.

If the act of Waterman in assigning was an
illegal act, that of the assignees, in carrying the
assets of the estate to Rhode Island, was equally
illegal.

In the first place, the assigned effects were

ft7

19^-146

SUFBBMB OOUBT OV THB UlOTBD BTATBfl.

Dbc. Tkbit,

not, in fact, transferred to Rhode Island; but
even if they had tieen so transferred, there are
two difficulties in making good the respond-
ents' position.

It 18 not made to appear, that under the laws
of Rhode Island any such equities have at-
tached.

If they have attached, that is no ground of
protection to the assignees in New York.

The assignees do not pretend to have trans-
ferred all the assigned cSffects to the State of
Rhode Island.

As to the part remaining in New York, the
appellants are clearl v entitled to an account.

8. Even should the appellants fail to estab-
lish the invalidity of the assignment, yet they
are entitled to an account of the amount in the
hands of the assignees, arising from the lapsed
dividends of non-releasing creditors. These
dividends belong, by the terms of the assign-
ment, to the assignees. Ab to this fund, we
are cloarly entitled to a decree of payment on
account of our debt.

EdmesUm v. Lydd, 1 Paige, 687.

Muirs. ThoBUM A. Jenekes and Ohuv
enoe A. Seward* for appellees:

1. The assignment was valid inter partu, and
the assignees legally acquired and legally trans-
lated to Rhode Island, the property covered
by It.

1. The assignment was valid lege lod.
Bee point 4, 2 h,

2. It was also valid in the State of New
York, until its invalidity had been Judicially
declared.

8. The action of the assignees in reducing
the property to their possession and removing it

grior to such judicial declaration, cannot be
npeached.

HenHquea v. Hotu, 2 Edw. Ch., 120: Mia$
▼. ArgaU, 6 Paige. 677; P&rUr v. WUUams, 9
N. Y., 149, and cases there cited; AveriU y.
Louek$. 6 Barb., 477.

2. The appellants had not, at the time of filing
their bill, acquired that lien upon the estate
which is an indispensable prerequisite to the
granting of the relief sought.

At th&t time the entire assigned estate, with
the exception of a few worthless claims, was in
possession of the assignees in Rhode Island.
The assignees were Rhode Island creditors of
the New York insolvents. These debts fol-
lowed the persons of the creditors, and if col-
lectable, were the property of the assignees in
Rhode Island. But even if the debts bad been
collectable, or if the assignees had casually
brought some portion of the assigned estate
into New York prior to the filing of the bill,
the appellants would not, by service of process
upon the assignees, have acquired any lien
upon the assigned estate. The period during
which the lien could attach, ceased when the
assignees took possession of the property trans-
ferred to Rhode Island, and there became
vested with the title to it. Without such lien,
the title of the assignees cannot be questioned.

The Watchman, 1 Ware, 241 ; The U. 8. v.
The Bank of The U. 8., B Rob. La.. 415;
Riehardaon v. Leavitt, 1 La. Ann., 480.

8. The relief sought by the appellants can-
not be granted consistently with the rights of
oiher creditors of Waterman, who are not now
before the court -

The FaUIUner Worker, Oroade, 15 Pick., 11.

4. A conflict between the lex fori and Uie
lex loeiy does not necessarily or properly arise.
It is only in cases of rival claimants to property
within the Jurisdiction of the lex fori, lamX such
a conflict can arise.

But if the (|uestion of tlie construction of the
assignment is necessarily, before the court,
then, both upon principle and authority, it
should sustain the assignment.

The question is one of law, and not of fact.
By the Revised Statutes of the SUte of New
York (2 R. 8., 188, sec. 4) the question of
fraud in an assignment is a question of fact,
and as such is to be decided, first, upon the
evidence, and second, by the language of the
instrument.

The question of fraud in fact, does not arise.

The bill is verified and calls for an answer
under oath. The answers are fully responsive
to all the charges of fraud alleged in the bilU
and so far as they are responsive, are evidence
for the defendants, to be taken as absolutely
true because not disproved.

Hough V. Biehav^^on, 8 Story, 692; Langdon
y. Ooddard, 2 Story. 267.

When the question to be decided arises upon
the language of the assignment, it becomes
one of law rather than of fact. Its answer de-
termines the legal construction or effect of the
instrument.

Ounningham v. Freeborn, 8 Pai^, 557: Shd-
don V. Dedge, 4 Den., 217; OoodrUh v. Downe,
6 HUl, 488.

The single question, then, presented for the
consideration of the court is, is this assignment
upon its face valid or fraudulent, within the
State of New York. It must be borne in
mind:

1st. That the assignor and the assignees were
neither citizens of, nor residents in, New York.
They were citizens of Rhode Island and resi-
dents of Providence.

2d. That the assignment was not executed in
New York, but was executed in Rhode Island,
the domicil of the parties.

8d. That by the laws of Rhode Island, it is
valid.

4th. That it operated upon personal property
only in the State of New York.

5th. That the personal property is not within
the jurisdiction of the lex fori.

6th. Tliat the parties proposing the ques-
tion, have no lien upon the property.

Personal property has no locality. It fol-
lows the law of the person. The law, therefore,
can only reach his property through him.

Sill V. Worsteiek, 1 H. Bl., 690 P^ ▼.
Pipon, Amb.. 25.

nence it follows, that a transfer of property
by its owner, whether inter vivos or poet mortem
valid by the law of his domicil, will, if made
before the law of another country has actually
attached upon the property by a proceeding
against its owner, be esteemed valid within
every other Jurisdiction where the property
maybe.

Story, Confl. L. . sees. 880. 883. 884.

The law of the domicil regulates the succes-
sion to, and the distribution of, the personal
property of the intestate.

Story, Conf. of L.; Holmsi v. Bemeen, 20
Johns., 267.

ex u. 8.

1868.

LlVBBMOBB V. JbHOXBS.

126-146

The assignment is valid in Rhode Island.
This is proved by the answer of the assignees
and by the decisions of the courts of that State.

Stewart v. Spencer, 1 Curt., 157, Doekerry v.
Dockerry, 2 R. I., 547; Heydockv, Stanhope, 1
Curt.. 471.

This court should interpret the assignment
as it would be interpreted by the courts of
Rhode Island, not onl^ in compliance with au-
thority, nor upon principles of comity only,
but upon principles of Justice. Contracts are
to be interpreted by the tee lod, to which the
parties had reference when the contract was
made. The Integritv of the instrument where,
as here, there is no fraud in fact, is to be tried
by the law of the place of its execution.

Brankear v. WetA. 7 Pet.. 608; DuneUu v.
Bowler, 8 McLean, 897.

The rule is too well established to be now
shaken or disturbed.

i^^eed V. May. 17 Pa., 91 ; Adamn v. Storey, 1
Paine, 100; Bankof Augueta v. Earle, 18 Pet.',
5ia; Van Beimedyk v. Kane, 1 Gall., 871: Le-
roy V. Cromnskidd, 2 Mas., 151..

The only remaining question is upon the in-
terpretation of the instrument itself. By what
law shall the assignment be interpreted? In
England, effect is given to the claims of foreign
assignees as against creditors resident there, and
this, whether the assignment be voluntary or
in invitum.

Locke, Attach.. 9»;SiUv. Worttwiek, IH. Bl..
690; Story, Confl. of L., sees. 408, 409.

The rule is not recognized to an equal extent
in the United States. A distinction obtains
here, between bankruptcy in invitum and a vol-
untary assignment. Any extraterritorial effect
is almost universally denied to an assignment
made compulsorily under foreign bankrupt
laws, while to an assignment voluntarily made
ex mero motu by a failing debtor, effect is or is
not given, as the authorities of each particular
State may require. These authorities are of
course numerous, and it is to be admitted, con-
flicting. Numerically they uphold the assign-
ment. The rule sustaining the lex domieuu,
and the assignment to which all the authorities
refer, is thus stated by Story in his Conflict of
Laws (sec. 8): **It is therefore admitted, that
a voluntary assignment by a party, made ac-
cording to the law of his domicil, will pass the
personal estate whatever may be its locality.
abroad as well as at home." The distinction
is also alluded to in the case of The Watchman,
1 Ware, 240, " The law separatee that which is
derived from the public power, from that which
comes from the will of the partv. Tried by
this principle, if the assignment of the debtor in
the present case is valia in Massachusetts, it is
valid everywhere, and operated a transfer of his
property wherever situated ; for the transfer was
made by the simple will of the owner, and not
by virtue of the public power, as in the case of
bankruptcy.

IsL The authorities supporting this rule are
as follows I

Saundere v. WUliamn, 5 N. H.. 218; Sander-
eon V. Bradford, 10 N. H., 260; Frasier v.
Frederieke, 4 Zab., 162; Afeana v. Hapgood, 19
Pick., 105; Fox v. Adame. 5 Greenl., 245; At-
wood V. Protection Ins. Co., 14 Conn., 555;
Bhlmeev, Bemeen, 4 Johns. Ch., 460; The Same
T. The8ame,2QiohTiA„2m',Abraham^,PUetoro,

866 81 How,

8 Wend., 566; Johnson v. Hunt, 28 Wend., 87;
Hooper v. Tuckerman, 8 Sandf., 816; Hoyt v.
Thompson, 5 N. Y., 853. decided in 1851 ; Oa/m-
ley V. Tuckerman, N. Y. 8. P. T. R, IstJudic.
Dist.; Milne v. Moreton, 6 Binn., %^i Speed v.
May, 17 Pa., 91; MtUUken v. Aughinbaugh, 1
Penn., 117; Lowry v. Hall 2 W. & S., 181 ; Law
V. Mills, 18 Pa.. 186 ; Greene v. Mowry, 2Bailey,
1«8; West v. Tupper, \ Bailey, 198; TheU. S. v.
The Bank of the U, S., 8 Kob. La.. 2n2. 418;
Richardson v. LeavUt, 1 La. Ann., 480; The
Watchman, 1 Ware. 282; Dundas v. Bolder, 8
McLean, 897; Caskie v. Webster, 2 Wall.. Jr.,
182; Ogden v. Saunders, 12 Wheat., 218; Harri
son V. Sterry, 5 Cranch, 298; Brasheary. West,
7 Pet, 608; The Bank of Augusta v. E!arle, 18
Pet, 519; Black v. Zacharie. 8 How., 488.

In no case have the claims of the assignees
been disregarded, when the property covered
by the assignment has become vested in them
and they have transmitted it beyond the juris
diction of the court whose aid is invoked by the
attacking creditor, before he has acquired any
lien upon it.

The English cases do not hold such an assign-
ment void.

Jackson v. Lomas, 4 T. R, 166; TheKing v.
Watson, 8 Price, 6.

There is no conflict in the decisions of the
local courts of the several States as to the effect
upon an assignment of a clause requiring a re-
lease.

In Massachusetts, New Hampshire (Haten v.
Richardson, 5 N. H., 118. before the Statute of
that State), Pennsylvania, Virginia, South
Carolina, Alabama and Rhode Island, the as-
signment is held valid; and in- New .York,
Ohio, Missouri, Connecticut, Maine and Illi-
nois, it is held to be void.

1 Am. Lead. Cas. 94, 95, and cases there
cited.

In Pearpointv. Oraham, 4 Wash. C. C, 282,
the assignment was upheld, and the decision in
this case was followed by Judge Story in Hal-
sey V. Fairbanks, 4 Itfason. 206. and in the case
of Brashear v. West, 7 Pet, 608, where the
assignment excluded from the benefit of its
provisions all creditors who should not, within
ninety days, execute a release. The question
of the construction of .this assignment is not an
open question, but is to be decided bv refer-
ence to local law, and the court must follow tha
decision in Brashear v. West, and adopt the con-
struction given by the courts of Rhode Island,
and thus also the assignment must be sustained,
and the decree below must be oflirmed with
costs.

Mr. Juetioe Wayne delivered the opinion of
the court :

This bill was filed by the appellants in the
Ciicuit Court of the United States for the
Southern District of New York, as judgment
creditors of the respondents, Waterman & Sam-
uel Harris, to avoid an assignment made by Wa-
terman to the respondents, Jenckes & Farnum,
in trust, for the payment of the creditors of
Harris & Waterman, and of Watennan individ-
ually.

The appellants seek to avoid the assignment,
on the ground that it was voidable, from its
tending to hinder, delay and defraud creditors;
because there is a reservation in it to the as-

80-«2

tSuFRSia CouBT or tbb Uhiymd Statis.

Dbc. Tkbic,

signee of the dividends of each creditora as
should refuse to become parties to it, and to re-
lease their demands in consideration of the
dividends they might receive. It appears that
a large amount of the properly conveyed was in
the State of New York; that the appellants re-
sided there, and that they were then creditors
of Harris & Waterman. The trusts in the deed
were, first, to pay the expenses of the assign-
ment; second!^, to pay the debts of several
preferred creditors of Harris & Waterman, and
of Waterman individually; and thirdly, to pav
all the residue of the debts of Waterman indi-
vidually, and as a member of the firm of Harris
& Waterman. The assignment contained the
following proviso: ** Provided, that' none of
n^y said creditors named in the third class of
this assignment shall be entitled to receive any
dividenof or benefit under the deed of assign-
ment, unless they shall execute and deliver to
my said assignee, within six months from the
date hereof, a full release and discharge, under
seal, of all their claims and demands against
me, the assignor; but the dividends on the
cl&ims and demands of the creditors who shall
not execute such release shall be paid over to
me, the said assignor, or to such person as I
shall appoint."

It appears that Harris, the copartner of Water-
man, had given to the latter a bill of sale of all
their partnership property; that the firm was
then dissolved; that Waterman had the posses-
sion of it, and that he afterwards maae the
I deed of assignment to Jenckes & Farnum.
Now, Jenckes & Farnum received and held the
property under the assignment, as well that
which was in New York as all that was else-
where. A part of the copartnership property
was the Owasco Lake mill, Kituated at Auburn,
Cayuga County, State of New York, and it is
admitted that it exceeded in value the debt due
by Harris & Waterman to the complainants. As
to that property, James Fitton was a copartner;
but it appears that he joined with Harris &
Waterman in dissolving the copartnership, and
in authorizing Waterman to ''settle up" its busi-
ness, having on the same day agreed that Har-
ris should convey to Waterman the bond and
mortgage which he had given to Harris & Wa-
terman, for the purchase money due by him for
an undivided fourth part of the Owasco Lake
mill. Thus Waterman was made the sole owner
of it. He supposed himself at that time to be
solvent, and that he could carry on the business
of the mill, and worked it for some time; but
finding himself unable to do so, he conveyed it
to Jenckes & Farnum, with all the other prop-
erty of the late concern which had l>ecome his,
with the intention that they should, as his as-
signees, make an equitable distribution of it
.amonff his creditors; and, in his answer to the
bill of the complainants, he declares he did so
without any fraudulent intent to hinder, delay,
or defraud creditors. Waterman had been, was
then, and was when he made the assignment, a
citizen of the State of Rhode Island. The prop
erty assigned was in different States. Jenckes
«& Farnum accepted the trusts of the assign-
ment. Waterman ceased to have any control
over it, and, for aught that appears, the as
sigpees have executra their trust unimpeach
ably. After the assignment was made, the
oompUinants obtained, in the Supreme Court

of New York, a Judgment upon their demand
against Harris & Waterman.

They have now broui;ht their bill as judg-
ment creditors against Waterman and Jenckes
& Farnum, the assignees, to avoid the assign-
ment; alleging that they have a Uen upon the
property in New York or its proceeds, as cred-
itors of Harris & Waterman, because Water-'
man's assignment to Jenckes & Farnum con-
tained a reservation to the assignor, which, by
the laws of New York, was fraudulent. And
so it would have been, had the assignment been
made in that State, by persons residing there.
But the assignment was made in the State of
Rhode Island, by a person and to persons residing
there, and is in every particular just such a one
as, by the laws of that State, merchants and
others in failing circumstances, residing there,
are allowed to make in favor of creditors within
that State and those residing elsewhere, wher-
ever the property of the assignor may be. We
see no cause for thinking it was fraudulently
made. The respondents deny it upon their
oaths, asresponsively to the charge made by the
complainants as that can be done. The latter
have not sustained their charge by any proof
whatever. For that cause alone, if there was
no other, we should concur with the Circuit
Judge in the decree given by him in this case.
And we also concur with him, that the com-
plainants never acquired nor ever had any lien
upon the property in New York, so as to subject
it legallv or equitably to their demand against
Harris & Waterman, either before or after it
was carried into judgment in the Supreme Court
of New York. Deeming the grounds stated,
decisive of this controversy, we abstain from a
discussion of other i)oints learnedly and ably
argued by the counsel in the cause, in their re-
spective printed briefs. They were appropri-
ate to the cause, but we do not deem them
necessary for the decision of it.

We direct the affirmance of the decree given in
the court below.

DEAN RICHMONP, Appt,

THE CITY OF MILWAUKEE and FERDI-
NAND KUEHN.
(See 8. C, 21 How., 80-8S.)

Appeals^ hmo regulated — talue in controvertty
must be over $2,000^ and be ahoien.

Appeals to this court« from circuit and district
courts, are regulated by the Act of 1803, ch. 4ti, where
not otherwise specially provided for by Act of
Congress.

By that law do appeal will lie, unless the suta or
value in controversy exceeds $2,000 ; and that fact
must be shown to the court in order to give juries-
diction in the appeal.

Argued Dee. 10, 1868. Decided Jan. 10, 1859.

APPEAL from the District Court of the Unit-
ed States for the District of Wisconsin.
The case is stated by the court.

Messrs. Brown and O^den* for appellant.

Mr. J. R, Doolittle* for appellees.

ifr. Chief Justice Taney delivered the opin-
ion of the court:
This is an appeal from the District Court of

^2 U. S.

18S8.

Union Inbttbancb Co. y. Hook.

85-66

the United States for the District of Wisconsin,
exercising the powers of a circuit court.

It appears that a bill was filed in that court
by the appellant, praying an injunction to pro-
hibit the conveyance of certain lots in the City
of Milwaukee, which had been sold for the pay-
ment of city taxes assessed upon it by the Cor-
poration.

The bill states that the City of Milwaukee is
a Corporation, chartered by the State; that,
under its charter and the Constitution and laws
of the State, it is authorized to assess certain
taxes for corporate purposes upon the lots and
property in the city, and if the taxes are not
paid according to law, to sell the lot upon which
it is charged. The bill further sets forth, that
the appellant was the owner of sundry lots in
the City, which are particularly described by
their respective numbers, and also. the assess-
ment imposed upon them, respectively, the man-
ner and purposes for which it was imposed, and
the proceedings of the corporate authorities un-
der this assessment, and the sale of the lots to
pay the amount claimed to be due.

And the bill then charges that the Corpora-
tion exceeded its powers in imposing these tax-
es, and even if lawfully imposed, that the pro-
ceedings afterwards had, were not conformable
to the law of the State, which points out par-
ticularly the steps to be taken before the lot
assessed can be sold. The bill charges, that upon
the grounds above stated, the sale of his lots
was illegal and invalid, and prays an injunction
to prevent a conveyance to the purchaser, as
such a conveyance would be a cloud upon his
title.

The bill alleges that the lots so sold are worth
$500. and that the taxes imposed exceed their
value as assessed on the books of the Corpora-
tion, more than two hundred per cent.

The Corporation and their treasurer answered,
and admitted the sale of the lots, and aver that
the City had a lawful right to impose the tax ;
that their proceedings to recover it were fully
authorized by law, and that the sales were valid,
and will entitle the purchasers to a conveyance
unless the appellant shall within three years re-
deem them, in the manner and upon the terms
provided for by the law of the State where
lands or lots have been sold for the non pay-
ment of taxes.

Testimony was taken on both sides, which is
set out in the transcript. But in the view which
the court take of the case it is unnecessary to
state it particularly, or to set out at large the
various points in controversy between the par-
lies upon the bill and answer, because, upon
the appellant's own showing, this court have no
jurisaiction.

Appeals to this court from the Circuit Courts
of the United States, and from District Courts
exescising the jurisdiction of Circuit Courts,
•re regulated by the Act of 1803, ch. 40, where
not otherwise specially provided for by Act of
Uongress. There is no special provision in the
Act establishing the District Court in Wisconsin
which regulates appeals to this court, and con-
sequently they are governed by the general law
above referred to ; and by that law no appeal
will lie, unless the sum or value in controversy
exceeds $2,000: and that fact must be shown to
the court in order to give jurisdiction in the
appeal.

See 31 How,

Now, the matter in dispute in this case is the
title to the lots which have been sold by the
municipal authorities for the non- payment of
the taxes. The taxes assessed were charged
upon the respective lots, and created no person-
al responsibility upon the owner, the lots alone
being liable for the payment. And the only evi-
dence or averment of their value is the state-
ment of the complainant in his bill, that they
were worth more than $500, and his complaint
that more than two hundred per cent. upon their
value as mentioned in the books of the Corpora-
tion, was charged upon them by the assessment,
and the proceeaings of the City authorities under
it. There is nothing in the allegations of the par-
ties, or in the evidence, to show that the value of
the lots in question exceeded $2,000, nor any-
thing from which it can be inferred.

Th4 appeal must, therefore, be diamisged for
fjoant of jurisdiction in this court

C!ted-6 Wall., 442.

THE UNION INSURANCE COMPANY,

Plffe. in St.,

JOHN BLAIR HOGE.

(See S. C, 21 How., 85-66.)

Mutual Insurance Company, toho is member of
— e€uh premiums and premium notes are a
common fund^-payment of premiums pre
scribed by the company — State construction of
charter, when decisive.

In a mutual insurance company, a person insured
upon a cash premium, without any further liability,
is a member.

In a mutual insurance company, the premiums
paid by each member for insurance constitute a
common fund; and the cash premium as well repre-
seijits the insured in such fund as thjB premium
note.

In the absence of any prescribed mode of pay-
ment of premiums, the power to prescribe it by
the company, is necessarily Implied.

The construction of the NewTork Insurance Act-
of 1849, by the public offlcers of the State, that a
charter Is in accordance with it, should be regarded
as decisive in a case of doubt.

Submitted Dee. SO, 1868. Decided Jan. 10, 1859.

IN ERROR to the Circuit Court of the
United States for the Northern District of
New York.

This suit was brought in the court below, by
the defendant in error, on a certain policy of
insurance to cover $2,500. ,

The Company based its defense on the ground
that the Act of April 10, 1849, of the laws of
New York, under which it was incorporated,
authorized it to conduct its business on the plan
of mutual insurance; that the receiving of a
definite sum of money in lieu of a premium
note for the policy of insurance in this case,
was not warranted by the Act of 1849; and that
the policy Is void, as made without authority
and in violation of said Statute. The plaintiff
demurred. The court having sustained the de-
murrer and entered judgment in favor of the
plaintiff, the defendant sued out this writ of
error.

A further statement of the case appears in
the opinion of the court.

85-66

BUPRBMB GOUBT OF TKB UlTITBD STATBI.

Dbc. TB]IM»

Mr. Henry Van Derlyn* for plaintiff in
error:

The question to be decided by this court is :
Is the policy of insurance issued by defend-
ants for an advance cash premium paid to de-
fendants, a valid policy as claimed by plaintiff;
or is it invalid, because it was not founded on a
premium note as claimed by defendahts?

The Circuit Court of the United States for
the Northern District of New York have de-
cided that the policy in question was a valid
policy. This decision is deemed erroneous ;
and to reverse it, this writ of error is brought.

1. The issuing of policies upon the plan of
stock companies, and the receiving of a definite
sum in lieu of a premium note, is not warranted
by the Act of 1849, and is in violation of its
manifest spirit; and therefore the policy de-
clared on is void, being made without authority
and in violation of the Statute.

We say this for several reasons:

1. This is a Mutual Insurance Company,
formed to do business on the plan of mutual
insurance and is so declared in the charter, in
pursuance of the Act of 1849, sec. 10.

See 2d sec. of the charter.

"Its business shall be conducted on the plan
of mutual insurance." The Company was or-
ganized without a dollar of cash capital, and
with $100,000 of premium notes (sections 5 and
11), and was prohibited from commencing bus
iness without $100,000 of premium notes. The
Act has not a word or provision indicating the
right to do business after the stock or cash
plan ; and a corporation can exercise no powers
not expressly granted, or that are not necessary
to carry into effect those that are granted.

See authorities cited under point 3d, po9t.

And moreover, that Statute expressly pro*
hibited the commencing business on the stock
plan, without $50,000 of cash capital.

2. The Company being organized under the
(General Act as a mutual company, and with a
capital made up of premium notes by direction
of the Statute, the Legislature, by the term
"mutual insurance," u^ in the Act, must be
deemed to have adopted the term as it had be-
come known in the legislation of the State, and
as expressed in the Jefferson and Madison
County Mutual Insurance Company charters.

Laws of 1886, pp. 42 and 89.

In 1849, when a General Act was to be passed,
it had become a settled feature in the mutual in-
surance companies, that a premium note in-
stead of a cash premium, was essential to the
idea of a mutual company ; and that interpre-
tation of the worjj "mutual," was clearly indi-
cated by the requirement, in mutual companies,
of a capital made up of premium or deposit
notes, instead of a cash capital, which was re-
quired in companies organized on the plan of
stock companies, and in life insurance.

Act of 1849, p. 441, sees. 6. 6.

An additional reason to infer the intent of
the Legislature, is found In the prevalence of
this premium note principle in the other States.

Aagell, 424, sec. 418.

In Indiana, Connecticut, Maine, Massachu-
setts, Vermont, Illinois. New Hampshire, Penn-
svlvania, and many others, the Legislatures, at
the time of the Act of 1849, had adopted the
premium note system, as we claim it to be. I
infer this from the decisions of their courts,

«2

without an actual examination of the Acts in
the several States.

It te some evidence of the necessity of having
legislative authority for issuing policies for a
definite sum paid in cash in lieu of a premium
note, that a special enactment has been resorted
to for that purpose, instead of coming in under
the 14th section of the General Act. which would
have given the power, if it were possible, under
the provisions of that Statute.

Session laws of N. T. , 1849. pp. 436, 184 ; Sen-
sion laws of N. Y. , 1850. p. 887 ; Session laws of
N. Y., 1852. pp. 27, 899. 65; 8 Ohio, N. S., 348.

4. Another and to our minds a conclusive
obiection to the exercise of this power of re-
ceiving a definite sum in lieu of a premium
note (without an express legislative sanction)
is, that it destro3rs the principle of mutuality,
which is the leading characteristic of mutual
companies formed under the Act of 1849, and
confounds the operation of a company "organ-
ized to do business on the mutual plan," with
that of those companies which are organized
on the plan of stock companies, and which
are in their nature and principle antagonistic to
the mutual companies.

To illustrate this idea, suppose that an indi-
vidual desires to make an insurance in a mutual
company. He makes his application and re-
ceives a policy for $1,000, and executes a pre-
mium note for $100, and pays in addition five
per cent, of that sum in cash. If the company
IS prudently and successfully managed, this five
per cent, will pay expenses and all ordinary
losses. But he is liable to pa^, if any exigency
like a disastrous fire renders it necessary, upon
a lust assessment; the whole of his hundred-
dollar note to satisfy the losses of any of his aa-
sociates who have also given their premium
notes; and all who have given premium notes
share in this contribution, which constitutes
the principle of mutuality. Now, let us sup-
pose that he applies to, and is insured in a stock
company ; he gelshis policy for $1,000 and pays
for it 1 per cent. — $10. He is entitled to the
same indemnity in case of a loss, as he was in
the mutual company ; but when he pays his
premium, he ceases to have any further interest
m the successful operation of Uie Company; he
is the insured, but not the insurer. In the
mutual company, he was not only the insured,
but he was also one of the insurers, and suf-
fered a loss by the loss of any one of his fellow-
members. By the device in question, the
makers of the premium notes are turned into a
slock company, and become insurers to stock
policy holders to a ruinous amount, without
any liability on Uieir part to contribute to any
loss whatever

Wiinehdrt v. All. Mut, Ins. Go., 1 Penn. St.,
859; Angellj). 424; Bangs v. Gray, 12 N. Y.,
477479; 7 WT & S.. 849, 851.

After saying '*that any person insured is a
member of the company, Gibson. Ck. J.,
says: ''aad on no other plan could a mutual
company be constituted; the object of the
members being to share each otheirs losses for
the general weal, and not to bear the risk of
losses for a premium" — which is quite signifi-
cant, when we remember that the stock com-
panies bear the risk of losses for a premium.

See, also, MuJt. Benefit Ins. Co. v. Jarvis, 22
Conn., 188, 145.

62 V. S.

18ft8.

Union Inbubancb Co. t. Hogb.

85-66

5. There is another consideration which
serves to show that this practice of receiving a
definite sum in lieu of a premium note, is
wholly unwarranted by the spirit of the Act of
lb49. , A company might, in the course of two
or three years, entirely change the charter of a
mutual insurance company into that of a stock
company, without having at the outset a dollar
of cash capital, and in defiance of the prohibi-
tion in the 7Ui section, by which the company
was forbidden to commence, that is, to do any
business as a stock company, without a stock
capital. Such is the absurdity into which our
opponent^are driven by their own hypothesis.

II. There is no force in the pretense that the
definite sura which is be taken in lieu of a
premium note, is really an equivalent for a pre-
mium note. This pretense is deceptive and
fraudulent, and so transparently absurd as to
deceive no one.

It can never be an equivalent for a premium
note, unless the sum is as large as that expressed
in the premium note.

The premium note was intended to be so
large as to meet all possible contingencies, and
no one was expected to have to pay the whole
of it, if the Company was conducted prudent-
ly. How, then, was it expected that individ-
uals would pay in cash any such sum?

There can be no mistake in the case of this
Company, because the directors who framed
the by-laws have stated the definite sum to
mean the ordinary stock rates in the funda-
mcrntal laws for the practical operation of the
Company.

III. CJonceding, that the receiving a definite
sum in lieu of a preminm note was a practice
not authorized by the Statute of 1849, and. in
violation of its provisions, the insertion of such
a power in the charter would not lenilize fiuch
practice, especially as those who dealt with
the Company on the plan of stock insurance.
luMi legal notice of the powers of the Mutual
Comrany.

1. The Act of 1849 is a public Act of which
all must take notice; and the Act requires a
copy of the charter to be filed in the office of
the Secretary of State and County of Montgom-
ery, which IS sufficient notice.

DuUhess Cotton Manvf. v. Davis, 14 Johns.,
288,245.

The name and by-laws of the Company in-
dicate that it was a Mutual Insurance Com-
pany.

All who deal with a corporation, are bound
to know the powers of the corporation with
which they deal or connect themselves.

4 McLc»m, 8; Boot v. Qoda/rd, 8 McLean,
103, 276; Mumma v. Potomac Co,, 8 Pet.,
287.

Though not a technical estoppel, it is never-
theless notice.

2. The Corporation was an artificial person
with limited powers, embracing only those ex-
pressed and such as are oiecessary to carry into
effect the express powers.

1 R S. of N. Y., 599, 600. sees. 1, 2 and 8;
2 Kent, 279. 299.

Their powers arc to be strictly construed.

Ang. ft Ames, Corp.. 2d ed., 64-67, 192, 198,
200; Chit. Cont., 586, 689; PtopU v. Utiea
Ins. Co., 15 Johna. 888; Thonuu v. AehiUei, 16
Barb., 494. 5; N. Y. F. Ins, Co, v. EHy, 2 Cow.,

See 21 How.

709, 699; Jf. R. /fw». Co. v. Lawrence, 8 Wend..
482; Beat^ v. M. Ins. Co., 2 Johns., 109, 114;
L. <fc F. Ins. Co. Y. M. F. Ins. Co., 7 Wend.,
81. 84; Safford v. Wyeoff, 1 Hill, 11; 2 Hill,
249; Eng. L. & Eq., 7, 505; 16 £ng. L. & Eq.,
180; 80 Eng. L. & Eq., 120.

8. The Corporation not only had no power
to issue stock policies by the Act, but the do-
ing of these acts were expressly prohibited by
section 7 of the Act, and were void for that
reason.

Traey v. Talmage, 14 N. Y., 179, Selden. J.:

"It has long been settled that contracts
founded on an illegal consideration," "or pro-
hibited by some positive statute, are void."
" That a contract by a corporation which it has
no legal power to make, is void and cannot be
enforced, it wduld seem difficult to deny."

Page 204, Comstock, to the same enect in
the note.

Mr, Henry R. Myg^tt* for defendant in
error:

The leading questions presented are:

1st. Was the cash policy of insurance on
which this action was brought, ultra vires T

2d. Are the premium notes of the Company
capital stock, and as such liable to pay pro rata
the losses and liabilities of the Company?

I. The issuing of policies by this Company for
a cash advance premium, was not unlawful. It
was not the exercise of a power not granted or
forbidden by the Act of April 10, 1849. but it
was the exercise of a lawful, and necessary, and
proper act.

II. This question was distinctly presented by
the decision of the Court of Api^eals of New
York in the case of White, Receiver, against
Haight, which case was decided at the last De-
cember Term, and the judgment in favor of the
receiver affirmed, on the ground that the note
in that action formed part of the original capi-
tal of $100,000, and was collectable without
any allegation of losses and without an assess-
ment. That case is reported in 16 N. Y., 810,
but only the opinion of Denio, Ch. J., is re-
ported. Opinions were written by two others
of the then memberb of the Court of Appeals,
and this question is debated by said two of the
members, to wit: Mr. Justice Brown and Mr.
JusHee Shankland. The following extract
from the opinion of Mr. Justice Brown is in
point:

" The Ist section of the Act of 1849 is suffi-
ciently broad and comprehensive in its terms to
authorize the existence of companies with pow-
er to make insurance, both upon the mutual
and stock principle. The 21 dt section, which
provides for uniting a cash capital to any ex-
tent, as additional security to the members over
and above their premium and stock shares,
certainlv favors that construction. ♦ ♦ ♦
* * The 8th section of the Company's char-
ter contains an express provision, that any per-
son applying to the Company for insurance, may
'* pay a cash premium in addition to a premium
note, or a definite sum in money, to be fixed by
the Corporation, in full for insurance and in
lieu of a premium note." All the policies to
which the defendant's answer takes exception,
were issued under this provision. When he be-
came a member, he was cognizant of its exist-
ence, and must be deemed to have assented that
the contracts should be made and the policies

85-^

SuPRBMs Court of thb Unitkd Statbs.

Dbc. Tkbm,

issued in conformity with it. In executing this
part of their trust the directors representedhim,
and did no more than he assented they should
do. The moneys received by them upon this
class of ri<)ks, have been applied to the uses
of the Corporation in the payment of losses,
chargeable pro rata upon the premium notes,
his own amongst the number. To that extent
his note has been exonerated and he has been
benefited. Upon the plainest principles of jus-
tice, he should not be allowed to set up acts of
which he was cognizant, and to which he gave
his assent, and of which he has taken the bene-
fit, in evasion and repudiation of his contract."

The following is an extract from the opinion
of ilfr. Justice Shankland :

** It is now urged against the validity of this
8fh clause of the charter, that the taking of
cash premiums, in lieu of premium notes, is not
in accordance with the mutual principles on
which this Company was authorized to be or-
ganized, because it might happen that the mak-
ers of the premium notes may have to pay more
than those who pay cash premiums. To this it
may be justly answered, that the Act nowhere
declares what is mutuality, nor does it either ex-
pressly or impliedly require that premium notes
shall be given by persons insured after the Or-
ganization of the Company. » » » » ♦
It certainly cannot be alleged as a want of mut-
uality, that some members of the Company
have paid their premiums in cash instead of
giving a note. It is rather beneficial than oth-
erwise, because by the rules of this Company,
the cash premium must be exhausted before the
notes can be assessed ; and the answer admits it
was so in this case.

Perfect equality and mutuality between the
members of this Company is impossible, nor is
it contemplated by the Statute. The diJBTerent
localities in which insured property is situated,
the mode in which fires are kept, and the care
of the owners, varies the rislu infinitely; yet
this diversity of risk is called mutual insurance.
It is so in fact; for what parties agree shall be
considerated mutuality, the law will adjudge

(11% 41 w w 4^ #

But the defendant became a member of this
Company, with full knowledge of the charter
and by-laws thereof. That charter gave him
an election to be insured for cash or on a pre-
mium note. He chose the latter mode, as most
likely to cost less in the end. If he mistook in
this respect, he should not be heard to say there
was not complete and perfect mutuality between
the members of the Company.

There have be^n several decisions in the Su-
preme Court of this State, which concur in this
construction of the Statute; some of which are
reported, and none reported to the contrary
that I am aware of.

21 Barb. 8. C, 6f0.

In Ohio Mut. InB, Co, v. Ma/rietta Woolen
Fac., 8 Ohio St., 848, the Statute authorized
the Company to take cash premiums in lieu of
premium notes, or to give premium notes, at
the election of the insured ; it was held that the
Company was nevertheless a mutual Company,
but that the cash premiums must be applied to
losses occurring on policies concurrent in time
with the note policies. So in 8d Gray, Mass.,
210, it was held that a mutual insurance com-
pany, which took part cash for premiums and

the balance in notes, could recover an assessment
on the latter, although the proportion of cash
received from the various members differed
from each other, whereby inequality was pro-
duced, unless the defendant could show that he
was injured thereby.

These authorities confirm the views I have
above taken, that equality is not attainable, nor
does its absence render these companies the leas
mutual insurance companies on that account.

It appears from said opinions, that said
Justices regarded the payment of an advance
cash premium as the lawful and proper ex-
ercise of the powers granted by tW Statute
and the charter, and as beneficial to the mem-
bers; and that by the well-known and con-
tinued course of business of the Company, the
policies issued therefor precluded the Company,
from repudiatiuK these contracts, issued to
those who parted with value upon the faith of,
and in consideration of their interest in, the
Companv.

2. This is not a Mutual Insurance Company,
with a stock branch engrafted on it. It is
purely a Mutual Insurance Company, and as
such, has power to issue policies of insurance
for a cash premium, or premium note, or both.

This Company was formed under a general
law, which was passed at the last session of
the Legislature, after an amendment of the
Charter of the Albany County Mutual Insur-
ance Company. By its charter, like to the
Albany Company, it expressly allows of the
cash premium in the place of the premium
note, or of both the cash premium and the pre-
mium note.

' 'The leading principle of mutual insurance
campanies is, that each person whose property
is insured, becomes a corporator or a memb^
of the company."

Angell on Fire and Life Insurance, 45, sec.
10; Suequehanna Ins. Co. v. Pwrine, 7 W. &
S., 848; Liteom v. Boston Mut. Fire Ins. Go,,
9 Met. , 205.

** A mutual insurance company, in its origin,
was a body of persons each of whom was de-
sirous of effecting an insurance, and he agreed
with the rest of the members to contribute his
premiums to a common /fund, on the terms
that he should be entitled to receive out of
that fund."

Dodesdell. 22; Angell on Fire and Life Ins.,
422, sec. 418.

*• The whole body becomes reciprocailv
bound to make good the losses, and are literal-
ly mutual insurers." Ih.

Parsons says that there are ''mutual com-
panies in which everyone who is insured be-
comes, thereby, a member."

Pars. Merc. L., 489.

Reynolds on Life Assurance, p. 180, refers
to the difficulty of collecting assessments on
notes which are often of trifling amount, and
are liable to be called on for frequent assess-
ments; and then remarks: "to obviate these
objections, another modification of the mutual
system has been introduced by some com-
panies, which is for the assured to pay the whole
premium in cash."

"The giving of the premium note is not
necessary to the consummation of the contract
of insurance."

BlavchardY. Waite, 28 Me., 51.

62 U. 8.

IH58.

Union iNfiURANCB Co. v. Hoob.

35-66

This Company was purely a Mutual Insur-
ance company.

The case of The UUca liuurance Co. v. Bris-
tol, decided at the General Term in the 5th
District of New York, in whicli case the opin-
ion of the court is by Justices Allen and
Pratt, was the case of a stock branch engrafted
on a mutual insurance company.

Mutual insurance companies were formed in
Ohio in 1844, with charters like the one in
Question.

In the Ohio Mut. Iris. Co. v. Marietta Woolen
Foe., 3 Ohio St, 348. it was held, that in cases
of losses on policies issued on cash premiums,
the cash fund must be first exhaust^ to meet
said losses, and then resort may be had to the
premium notes.

In the case of Tuekerman.Beeeiver.Y. McLean,
in the Superior Court of New York, the de-
fense in an action on a premium note was,
that it was assessed to pay cash policy losses.
By the Court, Duer, Justice:

*' This is clearly no defense. The Company
had the right by statute and their charter to
recdve caSi premiums and issue policies on
them, and the defendant's note has been great-
ly relieved by the practice. It was the best
thine the Company could do. These notes are
the Iwais of the transactions of the Company,
and they must be paid when the cash is ex-
hausted. The plaintiff is entitled to judg-
ment."

This question was also decided at the Qen-
^ral Term of the Supreme Court of New York,
in the 6th District, in the case of White, Be-
■ceiver, ▼. Haight, 16 N. Y.. 810, Justices Mason,
Qray, and Balcom, concurring in the decision.

See, also, 8haughnessy v. The Eenssdaer Ins.
Go., 21 Barb., 610.

8. This Company had power to issue policies
of insurance for a cash premium.

The plaintiff in error's argument is, that
these cash policies engrafted a stock branch
upon a mutual insurance company, and that
said cash policy should be repudiated as uUra
vires.

Admit, for the argument, that the Act of
April 10. 1849. contains no express authority
to the Corporation to issue policies for a cash
premium; it does not follow that the corpora-
tors are not answerable for losses arising from
said policies in their corporate capacity. The
Company have received value for them in
•cash, and it hardly comports with fair dealing
that they should seek to exonerate themselves
from a debt on this account, contracted by
and through their accredited, directors. It is
not true tnat a corporation cannot bind the
corporators beyond what is expressly auihor-
izea in the Act of Incorporation. There is
power to make policies of insurance, and if a
series of such contracts based on a cash premi-
um have been made, openly and palpably
within the knowledge of the corporators, the
public have a right to presume that they are
within the scope of the authority granted, un-
less it can be established that cash in hand is
not as good as a premium note.

The Court of Appeals in New York say, in
Oon&oer v. The Mut. Ins. O?., 1 N. Y., 292:
'* Incorporated companies, whose business is
necessarily conducted alto^ther by agents,
should be required at their peril to see to it

See 91 How. U. S., Book 16.

that the officers and agents whom they em-
ploy, not only know what their powi rs and
duties are, but that they do not habitually, and
as a part of their system of business, transcend
those powers. Hnw else are third persons to
deal with them with any decree of safely?"

When a charter and act of incorportion and
the statute are silent as to what contracts cor-
porations may make as a general rule, it has
power to make all such contracts as are neces-
sary and usual in the course of business, as
means to enable it to attain the object for which
it was created.

Ang. <& A., Corp., 2d Am. ed., 200, and
cases.

The creation of a corporation for a specified
purpose, implies a power to use the necessary
and usual means to effect that purpose; and
though their charters were entirely silent on
the subject, banks would necessarily be em-
powered to issue and discount promissory notes
and bills of exchange, and insurance com-
panies to make contracts of indemnity against
losses by fire.

Ketchum v. The City of Buffalo 21 Barb.,
300: Broughton v. Munch. Waterworks Co., 8
B. & Aid., 11 12: Tarborough v. Bank of En-
gland, 16 East, 6: Murray v. B. Ind. Ok, 5
B. A Aid., 204; Edie v. E. Ind. Co. 2 Burr.,
1216.

Corporations are liable even for torts and
trespasses, but their charter does not authorize
them.

Beach v. FuUon Bank. 7 Cow., 485: Life
<fe Fire Ins. Co. , v. Mteh. Fire Ins. Co., 7 Wend. ,
31.

The case of Stoney v. The Am. Life Ins. Co., 11
Paige. 685, decides that the negotiable security
of a corporation, which upon its face appears
to have been duly issued by such corporation,
and in conformity with the provisions of its
charter, is valid in the hands of a bona fide
holder thereof, although such security was, in
fact, issued for a purpose and at a place not
authorized by the charter of the Company, and
in violation of the laws of the State where it
was actually issued.

When corporations "confine themselves to
the purposes and objects of their incorpora-
tion, they should not be deemed as transcend-
ing their authority, but should be regarded as
acting within the scope of those inplied inci-
dental powers necessary to the full and advan-
tageous development of those which are ex-
pressly given."

MeadY. KeeUr, 24 Barb. N. Y., 24: see. also,
Wright V. Scott, in House of Lords. 84 Eng. L.
«& £q.. Melnfyre v. Preston, 5 Gilm. Ind.. 48.

When by its charter a company is prohibit-
ed insuring on property to an amount exceed-
ing two thirds of its value, yet if the company
voluntarily insure to a greater amount with-
out and fraud on the part of the insured, the
policy is not thereby void. 31 Maine. 220.

By the 2lst section of the Act, the Company
may " unite a cash capital to anv extent as an
additional security for the members, over and
above their premium and stock notes."

I'his word ''premiums," as here used, es-
tablishes the right of this Company to receive
advance premiums for policies. The ccTtificate
of the comptroller is " that the Company are
in possession of the capital, premiums, or

6 64

36-66

SUPKBMB COUBT OF THB XJnITBD BXATBa.

Dec, Term,.

"engagements of Insurance." as the case may
be.

In Rone et ai. , Beeeiter$, v. AUsn and PoMon,
reported in the note to Brouwer v. Appleliy, 1
Sandf. 8. C. 185. Jones, CA. /., sa^rs: "The
Company purports to be a mutual insurance.
Originally mutual insurance was, where all the
insurers agreed to apportion all the losses
among themselves ratably." The learned Chief
Justice %Bi,y% further: "The system underwent
various modifications. Notes were dispensed
with, to rely on premiums only, or on insurances
agreed for as soon as the Company was ready
to make them. In this respect the parties were
left much to fix their own standard."

Art. 10 expressly allows this premium to be
paid in a definite sum in money, in full for said
insurance, and in lieu of a premium note.

The Act incorporating the Schoharie Mu-
tual Insurance Company allowed the making
of contracts of insurance "for such term or
terms of time, and for such premium or con-
sideration as may be agreed on."

Session Laws of New York, 1881 , p. 280, sec.
2; see, also, Session Laws of New York, 1882,
p. 129, sec. 2; Session Laws of New York.
X884, p. 182, sec. 2; Session Laws of New York,
1886, p. 815; Session Laws of New York,
1848, p. 66.

The real question here is, whether this Com-
pany, by its asent and the consent of its cor-
porators, could carry on its business in any
given tnode, and act contrary to the general
course of business of such corporation, so long
as it proved profitable to the Company, and
when a disaster occurs, be allowed to shield
themselves from liability by a resort to a more
than literal construction of their charter pow-
ers, which they themselves had extended by a
liberal construction of its terms.

It would seem that there could be but one
answer; and such is the uniform current of the
more recent decisions upon the subject.

Curiuv. LeaviU, 15 N. Y., 9, and authorities

there cited; E, Co. Bculway Co. v. Hawkee, 85

£ng. L. & Eq.. 8, and authorities there cited.

11. The premium notes of this Company

constitute its capital stock, and as such are

liable to pay all the losses and liabilities thereof.

Brown v. Orooke, 4 N. Y.. 51; Van Buren

V. Chenango Vo. Mut, Ins. Co,, 12 Barb., 676.

It has been decided in Pennsylvania that

the deposit or premium notes of a mutual

insurance company are part of its capital.

BMnehart v Allegheny Co. Mut. Ins. Co., 1
Penn. St., 859, and the Court of Appeals
of New York, in Hyde v. Lynde, 4 N. Y.,
891, by Bronson, Ch. J,:** I agree with the
Supreme Court, that the deposit or premium
notes are to be regarded as capital, for the se-
curity of those who may deal with the Com-
pany."

As these premium notes are a security for all
who may deal with these companies, and as this
Company, as appears by the pleadings, has
issued more policies for a cash advance pre-
mium than for premium notes, and has received
$48,000 for said cash policies, and expended
the same in payment of the general liabilities
of said Company, common justice and mutu-
ality would seem to require that said premium
notes be applied equally, to pay all the just
creditors of this Company.

Mr. Justice Nelson delivered the opinion
of the court:

This is a writ of error to the Circuit Court
of the United States for the Northern District
of New York.

The suit was brought against the defendants
on a policy of insurance against fiie, in the sum
of $2,500, upon a paper mill, machinery and
stock of one R. K. Kounsler, of the State of
Virginia, the property situate in that State.
The defendants are incorporated under the laws
of the State of New York, and the place of
business at the Village of Fort Plain, an interior
town of that State. The policy and all interest
under the same have been duly assigned to the
plaintiff.

There is no question iu the case upon the
loss, or upon the preliminary proofs; the de>
fense being placed exclusively upon a defect
of authority in the defendants to issue the
policy. The Act of the Legislature of New
York, passed April 10. 1849, under which they
were incorporated, provided, section 1, that
any number of persons, not less than thirteen,
might associate and form an incorporated com-
pany, among other things, to make insurance
on dwellings, houses, &c., against loss or dam-
age by fire: section 8, that these persons should
file in the ofiSce of the Secretary of the State a
declaration, signed by them, expressing their
intention to form a Company for transacting-
the business of insurance, which declaration
should comprise a copy of the charter proposed
to be adopted by them, and requiring notice
of their intention to be published in a newspa-
per a given number of weeks. Section 4 pro-
vides for opening books of subscription to the
capital stock, and that in case the business of
the Company was to be conducted on the plan
of mutual insurance, then to open books to re-
ceive propositions and enter into agreements in
the manner afterwards specified ; which in sub-
stance is, that the Company shall not commence
business until agreements shall have been en-
tered into for insurance, the premiums on
which shall amount to $100,000, and notea
have been received in advance for the pre-
miums on such risks, payable at the end of or
within twelve months from date, which notes
shall be considered a part of the capital stock,
and shall be deemed valid, negotiable and col-
lectable, for the purpose of paying losses or-
otherwise. Section .11, that the charter of the
Company should be examined by the Attorney-
General of the State, and if found in accord-
ance with the requirements of the Act, and
not inconsistent with the Constitution or
laws of the State, he should certify the
same to the Comptroller of the State; and
thereupon the Comptroller should institute an
examination to ascertain if the Company had
received and had in its actual possession, the
capital premiums, &c«, to the full extent re-
quired by the Act; and upon a certificate to
this eJBTect by the Comptroller, filed in the office
of the Secretary of State, this otficer should
furnish the Company with a certified copy of
the charter and certificates, which, upon being
filed in the office of the clerk of the county in
which the Company is located, shall be its au-
thority to commence business and issue policies.
By section 10 it is made the duty of the cor-
porators to declare in the charter the mode and

68 U.S.

1858.

Union Inbubance Co. y. Hooe.

85-66

manner in which the corporate powers con-
ferred by the general Act are to 6e exercised ;
and by section 12 the corporators, trustees, or
directors, as the case may be, shall have power
to make such by-laws, not inconsistent with the
Constitution or laws of the State, as may be
deemed necessary for the government of its
officers and the conduct of its affairs.

By the 5th section of the charter formed
under this general Act, it is provided that the
rights, powers, Ac., conferred by law on the
Companv, shall be vested in and exercised by a
boara of directors, to consist of thirteen per-
sons, to be elected by persons holding the
polcies of insurance in the company or their
proxies, and one vote shall be allowed on every
one hundred dollars insured. The 8th section
of the charter provides that the rates of insur-
ance shall be fixed and regulated by the Com-
pany; and premium notes therefor shall be re-
ceived from the insured, and shall be paid at
sueh time or times and in such sum or sums
as the Company shall from time to time require :
and any person applying for insurance, so
electing, may pay a caw premium, in addition
to a premium note, or a definite sum in money,
to be fixed by the Company, in full of said
insurance and in lieu of a premium note.

The policy in question was issued on the
payment of a cash premium, under this 8th
section of the charter, the insured paying a
gross sum of $56.25 for the insurance of his pa-
per mill and stock to the amount of $2,500 for
one year.

The ground taken in the defense is, that,
according to the general Act under which the
defendants were organized, they were empow-
ered to make contracts and iwue policies of in-
surance to such persons only as became mem-
bers of the Company by giving premium notes;
and that the 8th section of the charter, pro-
viding for the payment of the premium in
cash, was without authority, and the policy,
therefore, void.

It is stated in the plea upon which the ques-
tion in the case is nused, that from the time the
Company began business (August, 1850) till
June, 18bd, when it became insolvent, over two
thousand policies were issued, founded upon
premium notes, and over two thousand five
hundred founded upon cash premiums; and
that the amount of $48,000 was received by
the Company for policies issued upon cash pre-
miums.

The general Act, conferring the power upon
companies organized under it to make con-
tracts of insurance against fire, and issue poli-
cies, provides for a certain amount of capital
($100,000), secured by premium notes upon en
gagements of insurance entered into by the
companies, as a condition to the right of com-
mencing the business of insurance. This cap-
ital, thus obtained, is essential to a complete
organization under the Act; for, without it,
the Corporation is forbidden to enter upon the
business of insurance.

These preliminary engagements and the ^v-
ing of premium notes were designed as an im-
mediate security to persons who, confiding in
the responsibility of the Company, should
make application for insurance on its going
into operation.

The notes thus constituting capital are to be

8ee 81 How.

made payable at or within a year from their
dnte; they may be made payable, therefore,
within the terms of the Act, on demand, or at
any short period ; and they are made negotiable
and collectable for the payment of any losses
which may accrue in the business of insurance
or otherwise. And it ha^ been held in the
Court of Appeals, in New York, that they are
collectable by the Company, irrespective of
losses, or assessments to pay losses. 16 N. Y.,
810; 2 Smith.

Now, although the general Act provides for
premium notes upon these preliminary engage-
ments of insurance to be consummated on me
organization of the Company, and with a view
to capital upon which to begin the business of
insurance, there is no provision to be found in
it prescribing the mode or manner in which
premiums shall be paid or secured after the
Company has become organized and com-
menced operations. That seems to have been
left to be regulated in the charter formed under
the Act.

The provision prescribing the giving of
notes in advance for premiums, with a view to
create capital, has no necessary relation to the
subject of premiums to be received by tlie
company after its organization, and in the
course of conducting its ordinary business.
The Act had in view a diJBTerent object in re-
quiring the giving these notes, and provided
specially for their disposition and use with ref-
erence thereto. They are made a part of the
capital stock of the Company, and negotiable
and collectable for the payment of lossft or
otherwise, and, as we have seen, collectable as
such capital, irrespective of loss or assessment
for losses; and as they may be made payable
on demand, or at a short day, are convertible
into money, according to the decision in the
Court of Appeals of New York, immediately
on the Company's becoming organized and
ready for business.

Even if this provision could be regarded as
bearing upon the subject of premiums after
the organization of the Company, it would
furnish but feeble support to the argument
against cash premiums, the difference beinc
simply between cash and a note payable and
collectable immediately. According to the
Act, and construction given to it in the case
referred to, these notes have no necessary ex-
istence after the organization of the Company.
They may then be converted into money.
They seem to have been made necessary under
this system of insurance while the Company
was in the process of organization, by way of
furnishing the incipient amount of capital re-
quired by the Act.

It is argued, however, that the Company in

Suestion is a mutual insurance company, as
eclared by the Act; that, according to this
system, the insured roust be a member of it,
and that a person insured upon a cash pre-
mium, without any further liability, cannot be
a member. This argument is not well found-
ed, either upon principle or authority. Ad-
mitting that the insured must be a member of
the Company, he is made so by the payment
of the cash premium. The theory of a mut-
ual insurance company is, that the premiums
paid by each member for the insurance of his
property constitute a common fund, devoted to

88-103

SUF&BMB OOUBT OF THB UnTTBD BtATBS.

Dec. Txrm.

the payment of any losses that may occur.
Now, the cash premium may as well repre-
sent the insured in the common fund as the
Eremium note; and this class of companies
as heen so long eneaged in the business of
insurance, it may well be that they can deter-
mine, with sufficient certainty for all practical
purposes, the just difference in the rates of
premium between cash and notes. These
mutual companies, possessing the authority
contained in the 8th section of this charter,
namely: to take cash premiums or premium
notes, are, at the present day, in operation in
several of the States, and it has never been
supposed that the mutual principle has been
thereby abrogated.

8 Ohio. 848, N. 8.

It has also been argued, that inasmuch as the
defendants have been organized upon the prin-
ciple of a mutual insurance company, its busi-
ness must be conducted, as it respects the pre-
miums to be received, according to the plan of
mutual companies previously chartered in the
State of New York. If the previous com-
panies were required by their charters to re-
ceive premium notes, and not cash, then this
requirement distinguishes them from the one
beiore us. If their charters contained no such
provision, then they were left, like the present
one, to regulate the mode of payment at dis-
cretion. Hesides, mutual companies upon both
plans had been chartered by the Lej^slature of
New York previous to the Act oi 1849, and
hence no inference can be drawn, as it respects
the garters of previous companies, from the
unexpressed intent of the Legislature in this
Act. if otherwise admissible.

The true answer, however, to this argument,
we think, is. that in the absence of any refer-
ence to previous charters, by which the pro-
visions of the same might have been incorpo-
rated in the present one, the court must look
to the law itself for the purpose of expound-
ing its provisions and ascertaining the intent
of the Legislature.

The general Act prescribed the outlines of
the system, and all the conditions and guards
that were deemed essential to the security of
persons applying for insurance, leaving the
details and interior regulations to be arranged
and determined by the Company in their char-
ter. Large powers were conferred, in general
t^rms, as in the 10th section, *' to declare in the
charters'* '*the mode and manner in which
the corporate powers given under and by virt-
ue of this Act are to be exercised ;" and afi;ain,
in the 12th section, the Company " shall have
power to make such by-laws" "as may be
deemed necessary for the eovemment of its of-
ficers and the conduct of its affairs." And
besides these general powers, inasmuch as the
Company is incorporated for the express pur-
pose of insurance of property against fire, in
the absence of any prescribed mode of pay-
ment of premiums, the power to prescribe it
by the Company is necessarily implied; other-
wise, the object for which it was created
would be defeated.

This question has been indirectly before sev-
eral of the courts of New York, and in all of
them, so far as any opinion has been expressed,
as I understand, it has been in favor of the val-
idity of these policies.

The practical construction of this Act of 1849
by the public officers of the State, including
the Attorney- (General, who were required to
supervise the preliminary steps made necessary
to the organization of the Company, and to
certify that it had conformed to the provisions
of the Act, and the latter officers especially,
that the charter was in accordance with it. is de-
serving of consideration. Under the construc-
tion thus given, numerous companies have
been organized with charters like the present,
providing for cash premiums, or premium
notes, at the election of the insured, and an
extensive business of insurance carried on in
New York and several of the sister States; and,
although this practical construction cannot be
admitted as controlling, it is not to be over-
looked, and perhaps should be regarded as de-
cisive in a case of doubt, or where the error is
not plain.

Thejudgmeni of the court below is affirmed,

Mr. Justice Daniel dissents on the ground
of a want of jurisdiction.

ROSS WINANS, Plff. in Br,,

THB NEW YORK AND ERIE RAILROAD

COMPANY.

:(See 8. a, 21 How., 8&-103.)

Format objection to deposition cannot be made at
trial, when there is time, before trial, for mo-
tion to suppress or reexamine — experts, to
u>hat may be examined — not to prove eonstrue-
Uon of instruments — error, what is not, in
refusing construction or evidence.

The refusal of the oourt to reject a deposition
l)ecau8e the witness had not annexed to it a oopj
of a former deposition, which, in anj»wer to a pre-
vious Interrogatory, he admitted he hud seen and
had used to refresh his memory, is righL

Such an objection cannot be made on the triaL,
when the party had full time and opp<irtuiiltj
l>efore trial, to move for a suppros'^ion « if the depo-
sition or a re-examination of the witness.

Experts may lie examined to explnin terms of
art, and the state of the art, at any ffiven time, and
may explain to the court the machines, modeU or
drawinirs exhibited.

But professors or mechanics cannot be received
to prove to the oourt or Jury what Is the proper or
lefral construction of any instrument of writing.

A Judire may obtain information from th^^i, if
he desire it, but cannot be compelled to receive
their opinion as matter of evidence.

VI here the court has given a correct construction
to the patent, there was no error in rot using tog! ve
a different one. or in refusing to admit testiinun j
which, under this construction, was wholly irrele-
vant to the issue on which the Jury were atxiut to
pass.

Argued Dec. XO, 1868, Decided Jan, JO, 1859,

IN ERROR to the Circuit Court of the
United States for the Northern District of
New Yorlt.

The suit below was an action at law brought
by Winans against the Company fur the in-
fringement of letters patent. The patent was

NOTB. —Dej>Mit<on« in U, 8, eourtts, defect* and ir-
reffuiariiies in, hmc taken advanldue o/, and how
UHMived,

The general rule is that a deposition not taken
according to the rules of law mu8t be excluded if
objection is made, unless there Is waiver of the ob-
jection or consent to the mode in which they are

0)S U.S.

1858.

WniANs V. Thb N. Y. akd Erik R. R. Co.

8^108

granted said Winans on Oct. 1, 1884, for an
** improvement in tlie construction of cars or
carriages intended to run upon railroads."

The defendants pleaded the general issue,
and gave notice of special matters of defense.

Upon the trial there was a verdict for the
defendants, and the plaintiff made a bill of ex-
ceptions.

The first exception arose as follows:

In the course of the trial, the defendants
offered to read in evidence the deposition of
one Conduce Gatch, taken under a commission.
The deposition consisted of 106 direct interrog-
atories and 108 cross interrogatories, and of the
answers of the said Gatch thereto, and of three
additional direct interrogatories, and the an-
Bwera thereto.

The 100th cross-interrogatory and the answer
thereto, referred to a copy of answers of said
Gatch in the case of Winans v. The JN". T. and
HarUm Railroad Co, .

This copy "was not, nor was any copy of
sach copy, annexed to said deposition, nor
were there any answers by Gatch to any part
of the 102d cross- interrogatory, other than the
said answer to the 100th cross-interrogatory."

The plaintiff's attorneys objected to the read-
ing in evidence of the whole of said deposition,
on the ground that Gkitch was called by said
102d cross- interrogatory to annex to his said
deposition a correct copy of the copy of the
answers of said Gatch in the case of Winans
V. The N. T. db Harlem Railroad Con^pany,
and that Gatch had failed so to do. The court,
thereupon, overruled said objection.

The substance of the other numerous excep-
tions, with a further statement of the case,
appears in the opinion of the court.

Messrs, Charles M. Keller* and Samuel
Blatehford* for the plaintiffs in error:

Ajb to the Urst exception, the rule of evidence
which excludes depositions under such circum-
stances, is well settled by authority.

Richardson v. Oolden, 8 Wash. C. C, 109;
Dodge v. Israel, 4 Wash. C. C, 823; KimbaU
V. Datis, 19 Wend., 487; Brown v. KimbaU,
25 Wend., 259, 265; Smiih v. QHffith, 8 HiU,
888.

As to the exceptions which relate to the
offers to prove, made on the part of the plaint-
iff and overruled by the Qpurt below; these
offers relate to expert testimony on the facts
presented and proved by the plaintiffs' letters
patent, which were in evidence as the founda-
tion of the action; the said expert testimony
being essential to enable the court to construe
as matter of law the claim in the patent, and
to enable the jury to ascertain as matter of
fact the principle or mode of operation of the
invention patented, and to determine the nov-
elty thereof, as well as the infringement of
the patent by the defendants. ^ This testimony
was admissible:

1st. As addressed to the court, with a view
to the correct construction of the claim in the
patent.

Winans v. Denmead, 15 How., 880, 840;
Curt. Pat., sees. 128, 895; Washburn v.
Gould, 8 Story, 122; NeOson v. Harf<nd,
Webst. Pat. Cas., 870; 8iUty v. FooU, 14
How., 218. 226.

2d. Testimony was admissible as addressed
to the jury as matter of fact. The claim is to
be liberally construed, to give effect to the
patent and to secure the invention actually
made and described, if the language of the
specification would admit of it.

Winans v. Denmead, and cases cited, 15
How., 880, 841.

And it was susceptible of proof, that the in-
vention described in the plaintiff's patent was
substantially different, and had a different
mode of operation from a car of prior date. No
construction of the claim of the patent can
be sound in iudgment of law, which includes
in its scope, both the patent and the prior car.

taken. Kvans v. Baton, 20 U. 8. (7 Wheat.), 858. 428 ;
alTff 3 Wasb., 448.

Tne imrty who procured the deposition to be
taken may object to any omission or irroflrularity of
the oominiasioner. Ollplns v. Consequa, Pet., 0. C.
85;s». C.,8Waah., 184.

But a party may not object to his own omission
or irreflrularity, as his failure to erive other party
notice. Yeatoa v. Fry, 9 U. 8. (5 Cranch), 836.

All objections to the form of takinff the deposi-
tioos are required by rule to be indorsed on them
before the cause is called. Jasper v. Porter, 2 Mo-
Leao, 579 ; Brooks v. Jenkins, 8 McLean, 432, 439.

Ad objection to form cannot be taken for the
first' time on appeal. The Samuel, 14 U. 8. (1
Wheat.). 0.

Where a motion is made to suppress deposition
and denied at one term, and subsequentlj' it is read
as evidence on the trial without objection, it can-
not be objected to on writ of error to supreme
Oonrt. Brown v. Tarkin«rton, 70 U. 8. (8 Wall.), 877.

Consent that a deposition may be read extends to
incompetent as well as competent evidence. Har-
ris V. Wall, 48 U. 8. (7 How.). 898, 706.

Depo«iltion read without objection cannot be aft-
erwards excluded. Evans v. Hattich, 20 U. 8. (7
Wheat.), 7oa ; air*a 3 Wash., 408.

Waiver of all objectlens to takingr a deposition de
hene eme extends only to character in which depo-
cltloawas taken. The Thomas & Henry v. U. 8.1
Brock. Marsh., 867, 883.

l>epasitions read on a former trial by consent.
Held, that upOn a second trial ordered on appeal,
the consent not beinjr limited, plaintiff was entitled
to read them. Vattier v. Hinde, 22 IT. 8. (7 Pet.),
2Se: aff'ir 1 Moliean, 110; Edmondaon v. Barrell,2
Granch, Q. C^ 228, 282. v

6ee 21 How.

Where both parties appearand examine and crosa-
examine on taking deposition, party at whose in-
stance it was taken cannot object, on account of
any informality or irresrularity in its taking, to Ita
being read by the. opposite party. Andrews v.
Graves, 1 Dill. 108.

Objection to competency of witness, if known, la
waived by attending examination : otherwise, if un-
known, it may then be taken when deposition ia
offered. U. 8. v. Hair Pencils, 1 Paine, 400.

Objection to regularity of proceedings is not
waived by attendance on the examination of attor-
ney of opposite party on notice, where be refuses
to take part in it. Harris v. Wall, 48 U. 8. (7
How.), 693.

Opposite party cannot, on trial, object to irregu-
larities in form where he appeared on taking the
depositions de bene MM, and without objection took
part in the examination, and more than a year bad
elapRcd. Shutte v. Thompson, 82 U.S. (15 wall.). 161.

Depositions dt htnt use under Judiciary Act of
1789, must be suppressed when it does not appear
affirmatively that witness resided over 100 miles
from place of trial. Dunkle v. Woroestor, 5 Hiss.,
102. ButseeActof May9, 1872.

When depositions have been filed three years,
motion to suppress for irregularity is too late. B'k
of Danville v. Trovers, 4 Biss., 60.

Objections to defects and irregularities which
might have been obviated by retaking the deposi-
tion must be noticed when the deposition is being
taken or raised by motion to suppress before trial.
Doane v. Olenn, 88 U. 8. CSl Wall.), 38: Claxton v.
Adams, 1 McArthur, 496.

Motion to suppress brings up regularity of order
and competency of witnesses if not previously

for
waived.

Eslava v. Masange, 1 Woods, 628.

88-108

BUPBBMB COUBT OF THB UlOTBD STATBS.

Dbc. Tbsm,

Me8»n, J. C. Bancroft DavU and Will-
iam White* for Uie defendants in error:

As to the Ist exception :

l8t. The exception assumes that the paper
was asked (or by the 102d cross-interrogatory,
whereas an examination of the interrogatory
itself shows that it was not asked for.

2d. The objection was not taken in time.
It could haTe been properly raised only before
the commencement of the trial.

Rules of the Circuit Court for the Northern
District of New York: Rule 6, Conkling's Trea-
tise, p. 814. Rules of the District Court for the
Northern District of New York: Conkling's
Treatise, Rule 43, 825; Rule 44, 825; Rule 88,
886; Rev. Stat. N. Y.. part 8, ch. 7, tit. 8. art.
2,sec. 28, 4th ed., Vol. 11., p. 640; Com. Bankef
Perm. v. TJnum Bank ofK F.. 19 Barb., 401;
11 N. Y., 210; Union Bank of SanduOcy v.
Torrey, 5 Duer, 628; 22 Barb., 27, 28.

The counsel have waived the objection.

Bimon V. Kimball, 25 Wend., 259.

The evidence asked for is not material.

Smith V. Griffith, 8 Hill., 888.

It was a copy of a copy, and could not have
been used.

Burton v. Plummer, 2 A. & E. , 841 ; 1 Greenl.
Ev., sec, 487.

The witness having testified from his own
recollection, to all the facte contained in his
answer, the plaintiff had no right to have it in
court.

Morse v. Cloyes, 11 Barb., 108; 1 Greenl.
Ev., sec. 487; cases already cited.

The evidence also shows that the copy was
not within the witness' control.

Mr. Justice Grier delivered the opinion of
the court:

The patent, which the defendants are charged
to have infringed, purports to be, '* for a new
and useful improvement in the construction of
cars or carriages intended to travel upon rail-
roads."

The specification commences with an enu-
meration of the difficulties attending short curves
in railroads from friction, and the consequent
necessitv of placing the wheels, where four only
are used, near together. But in high velocities
the shocks from obstructions or inequalities on
the rails are thus greatly increased: so that a
compiomise is usually made between the evils
consequent on too great a separation and too
near approach, wherein the advantage of one
is necessarily sacrificed for the sake of the
other. The incessant vibration felt in travel-
ing on railroad cars is mainly imputed to the
mmute obstructions which unavoidably exist,
and the approximation of the wheels necessary
to avoid friction tends to increase the effect of
this motion, and its power to derange the ma-
chinery of the road.

The important object which the plaintiff's
invention seeks to obtain, as regards comfort,
safety and economy, "is to devise a mode of
combining the advanta^ derived from plac-
ing the axles at a considerable distance, with
those of allowing them to be situated near each
other."

The specification then states the methods
heretofore used to remedy these difficulties;
such as making the track wheels conical, which,
in case of slow traveling, has been found an

effectual correction. But in high velocities it
caused a serpentine motion, not only on curves,
but where the track was straight. To avoid
this effect, an additional motive is furnished
for placing the axles at a considerable distance
apart.

For this purpose the patentee proposes to
construct two bearing carriages, each with four
wheels, to sustain the body of the cars, one at
or near each end thereof; the two wheels on
either side of these carriages to be placed very
near each other. These ^^heels may be con-
nected by a strong sprin^^, double the usual
strength employed for ordmary cars. The use
of this spring, though preferable, is not abso-
lutely required, as the end in view may be ob-
tained bv constructing the bearing carriages in
any of the modes usually practii^, provided
the fore and hind wheels of each of the car-
riages be placed near toother; because the
closeness of the fore and hind wheels of each
bearing carriage, coupled remotely from each
other, 18 considered as the most important feat-
ure of the invention.

On each of these carriages a bolster is placed,
on which the car body rests, connected with
each by a center pin or bolt passing down
through them, thus allowing them to swivel or
turn upon each other.

After this description of the improvement
contemplated, and the objects to be gained by
it (of which we have given a brief summary),
the specification concludes with the following
disclaimer and statement of what the patentee
claims to have invented:

" I do not claim as my invention the runninj^
of cars or carriajg^ upon eight wheels, this
having been previously done; not, however, in
the manner or for the purposes herein described,
but merely with a view of distributing the
weisht carried more evenly upon a rail or other
roaa, and for objects distinct m character from
those which I have had in view, as hereinbe-
fore set forth. Nor have the wheels, when
thus increased in number, been so arranged
and connected with each other, either by design
or accident, as to accomplish this purpoee.
What I claim, therefore, as my invention, and
for which I ask a patent, is the before de-
scribed manner of arranging and connnecting
the eight wheels, which constitute the two bear-
ing carriages, with a railroad car, so as to ac-
compli)^ the end proposed by the means set
forth, or by any others which are analogous and
dependent upon the same principles."

The defense set up in the pleadings does not
deny that defendants use cars constructed as
described in the patent, but takes issue on the
originality of the invention, averring, among
numerous other matters, that the same, or sub-
stantially the same, improvement had been pre-
viouslv made and used on the Quincy Railroad,
near Boston.

The first bill of exceptions taken on the trial
is to the refusal of the court to reject a deposi-
tion taken on interrogatories, because the wit-
ness had not annexed to it a copy of a former
deposition, which, in answer to a previous in-
terrogatory, he admitted he had seen and had
used to refresh his memory.

There are two sufficient reasons why this ex-
ception cannot be sustained. Ist. By the rules
of practice in force in the Circuit Court, such

62 U.SL

1^»8.

WiKAKB Y. Thb N. Y. and Ebib R. R. Co.

88-10»

an objection cannot be made on the trial of
another cause, when the party, as in this case,
had full time and opportunity to move for a
suppression of a deposition or a re-examination
of the witness.

And second, the paper was not in the power
of the witness, but m that of the commissioner,
or Uie plaintiff himself, who might have used
it if he thought proper.

After the parties had each given evidence
tending to prove the issues between them, and
the defendants had closed their testimony, the
plaintiff's counsel made nine distinct offers of
proof, which were severally overruled as irrel-
evant, and exceptions taken.

They then proposed eight several instruc-
tions, which they requested the court to give
to the jury, and took exceptions to the court*s
refusal. Besides all this, the charge was par-
celed out into fourteen paragraphs, and an ex-
ception taken to each.

To state each one of these thirty-one propo-
sitions at length, and discuss them severallv,
would be a t^ious as well as an unprofitable
labor.

There was in fact but one question to be de-
cided by the court, viz.: the construction of
the patent; the question of novelty being the
fact to be passed on by the jury.

The testimony of experts which was rejected
liad no relevancy to the facts on which the jury
were to pass, but seemed rather to be intended
to instruct the court qn some mechanical facts
or principles on which the court needed no in-
struction, or to teach them what was the true
construction of the patent.

Experts may be examined to explain terms
of art, and the state of the art, at any given
time.

They may explain to the court and jury
the machines, models or drawings exhibited.
They may point out the difference or identity
of the mechanical devices involved in their con-
struction. The maxim of " cuique in aud arte
credendum" permits them to be examined to
questions of art or science peculiar to their trade
or profession; but profes<K>rs or mechanics can-
not be received to prove to the court or jury
what is the proper or legal construction of any
instrument of writing. A judge may obtain
infonnation from them, if he desire it, on mat-
ters which he does not clearly comprehend, but
cannot be compelled to receive their opinions
as matter of evidence. Experience has shown
that opposite opinions of persons professing to
be exi>erts,may be obtained to any amount; and
it often occurs that not only many days, but
even weeks are consumed in cross examina-
tions, to test the skill or knowledge of such
witneases and the correctness of their opinions,
wasting the time and wearying the patience of
both court and jury; and perplexing, instead
of elucidating the questions involved in the
issue.

If the construction given by the court to the
specification be correct, and in fact the onlv
construction of which it is capable, as we think
it is, it would be wholly supemuous to examine
experts to teach the cqurt, what the^ could
clearly perceive without such information, that
the necessity for coned wheels to avoid friction
on curves was a consequence of the fact that
the wheels were fixed to the axle.

6ee 21 How.

The improvement claimed by the patent be-
ing a device to remedv, among other things,
the serpentine or wabbling motion of such
wheels m high velocities, the testimony offered
concerning Uiem, if it would have any effect
at all, would tend only to mislead both court
and jury from the only issue in the case.

The following extracts from the charge will
show that the judge has given the only con-
struction which the language of this sp^ifica-
tion will admit, and one which had been pre-
viously given by Mr. Chief Justice Taney in
1839, and a^in by Mr. Justice Nelson :

" According to the import and true construc-
tion of the plaintiff's patent and specification,
he claims to be the first inventor of ' a new
and useful improvement in the construction of
cars and carriages intended to travel upon rail-
roads,' which improvement consists in the man-
ner of arranging and connecting the eight
wheels, wliich constitute the two oeariug car-
riages, with a railroad car, the object of which
is to make such an adjustment of the wheels,
axles, and bearings of the car, as shall enable
a car with a comparatively long body to pass
curves with greater facility and safety, and less
friction, and as shall at the same time cause
the bodv of the car to pursue a more smooth,
even, direct and safe course, over the curva-
tures and irregularities, and over the straight
parts of the road.

'* The manner of such arrangement and con-
nection is to place upon the upper bolsters of
two bearing carriages, each having four wheels,
with the flanches of each pair of wheels very
near together, the body of a car, so as to rest
its weight and have the bearing of the load
upon the center or central portion of the bol-
sters, being also the center or central portion of
the bearing carriages; the bolsters of the bear-
ing carriages and car body, respectively, being
connected by center pins or bolts, so as to allow
them to swivel and turn upon each other, in the
manner of the front bolster of a common road
wagon, and the bolsters being placed at, near,
or beyond the ends of the body.

'* And the closeness of the fore and hind
wheels of each of the two bearing carriages
coupled as remotely from each other as may be
desired, or can conveniently be done, for the
support of one body, is a most important feat-
ure of the invention, with a view to the ob
jects and on the principles set forth in the
specification.

"The patentee does not claim to be the in-
ventor of a car body (either for freight or for
passengers) of b new or peculiar construction
in size or form, nor of any single and wholly
separate part of the entire car; but he claims,
as his invention, the manner of arranging and
connecting the eight wheels, which constitute
the two bSiring carriages, with a railroad car,
in the mode and by the means described in his
specification, for the ends before described,
whether such railroad car is adapted to the
ti-ansportation of freight or of passengers.

" The leading principle set forth in the spec-
ification, upon which the arrangement and
connection act to effect the objects aimed at,
is, that by the contiguity of the fore and hind
wheels of each bearing carriage, and the swiv-
eling motion of the trucks or bearing carriages,
the planes of the flanches of the wheels conform

801-808

8UPKBMB Court of thb Unttbd Statbs.

Dbc. Terh»

more Dearly to the line of the rails, and the lat-
eral friction of the flanches on the rails, while
entering, passing through, and leaving curves,
is therebj diminlBhed; while at the same time,
in consequence of the two bearing carriages
being arranged and connected with the body of a
passenger or burden car, by means of the king
bolts or center pins and bolsters, placed as re-
motely from each other as msy be desired or can
be conveniently done, and with the weight bear-
ing upon the central portion of the bolsters and
beating carriages, the injurious effects of the
shocks and concussions received from slight
irregularities and imperfections of the track,
and other minute disturbing causes, are greatly
lessened."

The remarks of the court about the want of
a diAiClaimer, where the patent claimed too
much, though correct as a general statement
of the law, could have little bearing on the pres-
ent case, where the disclaimer, to oe effectual,
would include the whole invention claimed.

It is abundantly evident, therefore, that the
court having given a correct construction to the
patent, there could be no error in refusing to
give a different one, or in refusing to admit
testimony which, under this construction, was
wholly irrelevant to the issue on which the jury
were about to pass.

The judgment of the CireuU Court is.iheref ore,
affirmed, mVi eont*.

Mr, Justice Daniel dissents on the ground
of a want of jurisdiction.

ated-99 U. 8., 666.

M$9Kr». R. EL Oillet and Brown
den» for appellant.

Mr, J. R. Doollttle» for appellees.

*o^

DEAN RICHMOND, Appt,,

THE CITY OF MILWAUKEE and PERDI-
NAND KUEHN.

(See 8. C, 21 How., 801-^88.)

Valus, how shown, to give juriBdietion — when to
he shown — when too late — talue in pleadings.

Where, as in ejectment or a suit for dower, the
value does not appear in the pleadings or evi-
dence, affidavits may be received to show that the
value is large enough to give Jurisdiction to this
court.

A case will not be postponed or re-instated, in
order to give the party time to produce affidavits
of value.

Thev come too late, after the case has been heard
and dLimtssed for want of jurisdiction.

Where the value is stated in the pleadings or
proceedinfrs of the court below, affidavits are never
received to vary or enhance it, in order to give
Jurisdiotlon.

Argued Feb, 18, 1869, Decided Feb. 28, 1869.

APPEAL from the District Court of the
United States for the District of Wiscon-
sin.

On motion to reinstate and decide the case
on the merits.
This case is stated by the court.
Bee, also, 62 U. 8. (21 How.), 80.

Nora.— Jurfodfetion of U, 8. Supreme Conrt, de-
vendetit on amnutU, InlereH cannvn headded t«# gUoe
ptrisdietiim. Haw vaXue o/ thing demanded may he
shi)wn. WJuU eases recUwaJbU wUhaulL regcurd to
sum in etmirovemy. See note to Gordon v. Ogden,
28 CJ. 8. (8 Pet.), as.

Mr. Chief Justice TmaiBy delivered the opin-
ion of the court:

This case was dismissed at a former day of
the present term, because it did not appear
that the value of the properly in controversy
exceeded $2;000. An affidavit has now been
filed on the part of the appellant, stating that
the property was worth $2,600; and a motion
made thereupon to re-instate the case, to
which the counsel for the appellees consent.

There are cases — such, for example, as an
ejectment, or a suit for dower — ^in which the
value does not, according to the usual forms
of proceeding, appear in the pleadings or evi-
dence in the record. In such cases, affidavits
of value have been received here, in order to
show that the value is large enougli to give
jurisdiction to this court. That was the case
in Course v. Steadman, referred to in the 18th
rule of this court. The case is reix)rted in 4
Dall., 22.

It was a proceeding to charge a tract with
a lien created by a Judgment; and, as the de-
cree was against the respondent, it was neces-
sary for her to show that the land was worth
more than $2,000, in order to support the ap-
peal. The case of WHUam v. Kinc€wi, referred
to in the above-mentioned case (4 Dall., 19),
was an action for dower. But in both of these
cases, the affidavits were filed before the argu-
ment on the merits; and in Rush v. Parker, 5
Cranch. 287, Mr. Justice Livingston expressed
his opinion strongly against giving time to file
affidavits of value, and the court refused to
continue the case for that purpose. And in the
class of cases above mentioned, in which affida-
vits are received, there is no instance in which
a case has been postponed or re- instated in or-
der to give the party time to produce affidavits
of value. Indeed, such a practice would be ir-
regular and inconvenient, and mieht sometimes
produce conflicting affidavits ana bring on &
controversy about value, occupying as much
of the time of the court as the merits of the
case.

And if this case were one of those in which
affidavits could be received, they come too
late after the case has been heard and dismissed
for want of jurisdiction. But it is not a case
of that description. The value of the lots
about to be sold for corporation taxes was in-
volved directly in the dispute. Their value ia
stated in the bill, and the amount of taxes im-
posed upon them, in order to show that the
overcharge made by the corporation was un-
reasonable and oppressive; and their value is
stated by the complainant to be " over $500*' —
the sum mentioned bein^ only one fourth of
the amount required to give jurisdiction to this
court; and where the value is stated in the
pleadings or proceedings of the court below,
affidavits here have never been received to
vary it or enhance it, in order to give jurisdic-
tion. And the affidavit now offered could
not have been received, even if filed before the
argument of the case.

The motion to reinstate is, therefore, overruled.

Cited-^ Wall., 442.

62 U.S.

i8oa

Phila., Wilminoton akd Balt. Railroad Co. y. Quiolet.

a09-22S

the philadelphia, wilmington &
balYimorb railroad company.

Fff$, in Er., ^

PHILIP QUIGLEY.

(See 8. C, 21 How., 20^228.)

€brporaii(m8, liable for agents acU in contractu
«r in de\icXo--communication by corporation
to their eon*^tituents, privileged — out not when
ineerted in book for distr&ntion — responeible
for Ubel^-pttblieaiion, after suit commenced —
general itmie ueUven juriadietional queetione.

Vor sets doae by the agents of a oorporatlon,
either in eontroetu or in delicti}, in the course of its
buainew, and of their employment, the corpora-
tion is responsible, as an individual is responsible
under similar circumstances.

The communication by a corporation to their
oonstltucnbs of ihe evidence collected by them as
to the otmduct of their ofBoers and agents, and their
oonclusions upon the evidence, was a prlvileflred
oommunloatlon, in the abeenoe of any malice or
bad fnith.

But the privilege does not extend to the preserva-
tion of the report and evidence, in the permanent
form of a book for distribution.

8o far as the corporate body authorized the pub-
lication of the libel oomplainea of in the form em-
ployed, they are responsible in damages.

Publication which took place after the oom-
mencemeot ot the suit, cannot sustain a verdict.

The general issue raises an issue upon the merits
of the complaint, and leaves the Jurisdictional al-
lenilnns without a traverse.

No quf*stlon. Involving the capacity of the parties
in the cause to litigate in the Circuit Court* can be
raised before the Jury, under the general issue.

Argued Dec. 29, 1868. Decided Jan. 17, 1869,

F ERROR to the Circuit Court of the Unit-
ed States for the District of Maryland.

This was an action on the case brought in
the court below, by the defendant in error, to
recover damages for a libel alleged to have
been published by the plaintiff in error.

The trial in the court below having resulted
in a verdict and judgment in favor of the
plaintiff for $5,000, with costs, the defendant
sued out this writ of error.

A further statement of the case appears in
tlie opinion of the court.

MeterM. Wm. Schley* C. Robinson and
nios* Donaidson* for plaintiff in error:

1. An action of libel cannot be sustained
against the plaintiff in error. It is a Railroad
Company, with defined and limited faculties
and powers; and it can exercise no incidental

powers, except such as are necessary to the
full exercise of the faculties and powers ex-
pressly ^ven b^ its charter. Being a mere
legal entity, it is incapable of malice; and in the
very definition of libel, malice is an essential
element. The action should have been insti-
tuted against the natural persons, who pub-
lished toe alleged libel.

Queen v. The Great North of Bng. Railway
Oo.,9 Q. B., 815; Stevens v. Midland Go.'s
Railway Co., 10 Exch., 863; Commomrealth v.
The Ptoprietors of New Bedford Bridge, 2
Gray, 845; State v. Great Work's Mill and
Man. Co., 20 Me., 41; MeLelland v. Bank of
Cumberland, 24 Me., 5«6; Childs v. Bank of
Missouri, 17 Mo., 218: and. for illustration, the
cases of Colman v. The Eastern Counties Rail-
way Co., 4 Railway C, 518; and Salomans v.
Laing, 6 Railway C, 801, are referred to —
showing that the Corporation is not bound by
acts of directors when such acts are uUra mres.

2. Even if the action of libel could be main-
tained against the plaintiff in error in a case of
unlawful publication, yet upon the proof in
this case there was no such publication.

The communication by the president and
directors to the stockholders, of the results of
the investigation into the conduct of the Com-
pany's officers, was a privileged communica-
tion; and even if it amounted to a publication,
no action will lie, unless upon proof of express
malice and the want of probable cause; and
the burden of proving malice and the want of
a probable cause was on the plaintiff below.

Shipley v. Todhunter, 7 C. i& P.. 680; Somer-
ville v. Hawkins, 10 C. B., 588; Taylor v. Haw-
kins, 16 Q. B., 808; Harris v. Thompson, 13
C. B., 888; Cockayne v. Hodgkinson, 5 C. &
P., 548; Toogood v. Spyring, 1 Cromp., M. &
R., 181; Padmore v. Lawrence, 11 A. & E ,
880 (89 Eng. C. L., l\ti)i Howard y. Thompson,
21 Wend.. 820; Bradley v. Heath, 12 Pick.,
163; Hopwood v. Thorn, 8 M. G. & 8., 815 (65
Eng. C. L., 291); WhUe v. Nichols, 8 How..
266; Cooke v. Wildes, SO L. & E., 284; Van-
wyck v. Guthrie, 4 Duer, 268; Vandisrzee v..
McGregor, 12 Wend., 545; Davison v. Duncan,
40L. <&E., 210.

8. But there was no evidence of publication
by the defendant of the matter complained of
as libelous. The report of the president and
directors to the stockholders of the Company,
communicating the results of the investigation,

'Horm.— Privileged communiealions in IQkl and
aidiMter. See note to White v. Nichols, 44 U. 8. (8
How.), 208.

lAbel and tlander, aelions fOTt by and OQainst cor-
poratimis.

An action will lie afrainst a corporation for llhel.
Aldiioh V. Press Print. Co. 9 Minn., 188; Lawless
V. Ang^lo- Egyptian Cotton Co., Law Ren., 4 Q. B.,
SB; 10 B. & 8., 296. Maynard v. Fireman^s Ins. Co.,
840al., 48: Latimer v. West Mom. News Co., a^ L.
T. N. S.« 44: Teuoh v. Gt. West. Ry. Co., 88 Upper
Can. Q. B., 8 ; rev'ir 83 U. P. Can. Q. B.. 2, iSa.

A ourporatlon may have a reputation which is
equally as valuable to it as to a naturaljperson, and
may be injured In it in the same way. Trenton Ins.
Co. V. Perrine, 8 Ztib., 400.

A oorpuration air^reifate may maintain an action
for Ubei for words published of them conoernlnff
their trade or businesstby which they have suffered
spoeial damaire; and that, too, affainst a shareholder
in the company. Met. Saloon Omnibus Co. v. Haw-
kins. 4 Hurl. N.,87.

Piibiishinflr of the plaintllf, an incorporated bank,
that **it was liable at any time to be dosed up by

8« 91 Hew.

an injunction," is libelous without alleirations of
special damages. Shoe and Leather B*k v. Thomp-
son, 18 Abb. Pr., 413.

where chairman of a Joint^Btock company was by
statute authorized to sue for company, it was held
he mi^ht sue for a libel on the company though it
was not a corporate body. Williams v. Beaumont,
10 Bing., 200 : 8 M. & Sc. 706 ; Woodward v. Cotton,
1 C, M.«kR..44.

A corporation is capable of voluntary action, and
hence may bo the publisher of a libel. It is as pos-
sible for a corporation as for an individual to act
maliciously. It may, therefore, cause the publica-
tion of a defamatory statement under such circum-
stances as would Imply malice in law sufficient to
support the action, and there may be such circum-
stances that express malice in fact may be proved,
Whitfield V. South E. R. R. Co., 1 Ell., B. & E., 115;
Aidrlch V. Frees Printing Co., 9 Minn., 133: Alexan-
der V. N. East. R. R. Co., 84 L. J. N. S., 132, Q. B.; 11
Jur.. N.8., 619.

As to exemplary damages against a corporation.
See Jefferson R. R. Co. v. Rogers, 28 Ind., 1 ; Banger
V. Gt. West. Ry Co., 6 H. ol L. Cas., 72.

7»

202-228

bUFBKKB OOUBT OF THB UNTTBD 8tATB&

Dsa Tbrk,

was no such publication; and the adoption of
their report, and the consequent printing of the
testimony, and its authorized distnbution
among the stockholders, was no such publica-
tion.

Bex V. BmUie, 2 Esp. N. P., 91, cited in
Howard V. Thompson, 21 Wend., 819.

4. There was no evidence of express malice
on the part of the corporation, or on the part
of the board of directors, or on the part of the
stockholders. It is not a case in which vindic-
tive damages could properly be given.

2 Greent., sees. 253, 420; Day v. Woodworth,
13 How., 371.

5. The tirst instruction of the court below
wa<) erroneous in several particulars. It di-
rected the jury that they might infer malice
from the mere falsehood of any statement in
the letter of Mahoney, respecting the plaintiff
in his trade and occupation ; and that the dis-
tribution of the printed book among any of
the stockholders rendered the defendant liable
in the action. The defendant, under this in-
struction, was not at liberty to claim a verdict,
-except upon proof of the truth of every state-
ment in said letter; for the distribution of the
book to some extent amongst the stockholders
was not denied.

6. But the second instruction was even
more exceptionable. It seemingly suggests to
the jury the propriety of givmg exemplary
damages. The quantum of damages under
this instruction was to be composed of two
items; first, such amount as would render re-
paration to the plaintiff; and second, such
amount as would act as an adeauate punish-
ment to the defendant; and in makini; up this
blended amount the jury were told to give
such damages as in their opinion were called
for and justified, in view of all the circum-
stances of the case. The plaintiff sued in his
character as a mechanic — for an alleged libel
against him as a mechanic; and he complains
01 injury to his reputation, not as a man, but
as a mechanic; and he claims special and not
general damages. Now, there was certainly
'evidence, and strong evidence, to show that
the plaintiff had not sustained any actual
damage in his reputation, or in his business as
a mechanic; and if so, the case was one not
for vindictive, but nominal damages.

7. The Circuit Court, upon the proof ad-
duced, had not jurisdiction in this case. The
plaintiff and defendant were not citizens of
different States.

The plaintiff sued as a citizen of Delaware.
The defendant was described as "a body cor-
porate in the State of Maryland, incorporated
by a law of the Gkneral Assembly oi Mar}'-
land." But the proof showed that the defend-
ant was also a body corporate in Delaware, in-
corporated by an Act of the Legislature of
Delaware.

In the case of this Compan v against Howard,
18 How., 807, this point did not arise, as the
plaintiff in that case was a citizen of Illinois.

In the case of MarahaU v. The Bolt, and 0.
B. B. Co., 16 How., 814, no question was made
below in relation to jurisdiction; and the proof
did not present the precise question whi<^i
arises in this case.

In Bundle v. The Del. and Bar, Can. Co., 14
How., 80-95, the facts were essentially different.

Ner it was necessary that this objection
should have been made by plea in abatement.
The cases of Sheppard v. QratM, 14 How., 610,
and of Jones v. League, 18 How., 76^, it is sup-
posed, do not apply to a case like this. The
objection does not present any question of dis-
ability of the plaintiff, or of privilege of the
defendant.

Messrs. Reverdy Johnson and Henrjr
Winter Davis» for defendant in error:

The defendant asked instructions.

1. That there was no right to a recovery,
though the book were published by defendant;
in other words, that libel will not lie against a
corporation.

2. That if it would, this publication was a
privileged communication.

8. That there could be no recovery unless ex-
press malice were found.

4. That there is no evidence of express
malice.

The court refused those instructions and gave
others to this effect:

1. If the jury find the publishing by defend-
ants the falsehood of the libel, the report to the
stockholders and acceptance by them, and the
distribution among the stockholders or any of
them after adjournment, the plaintiff can re-
cover.

2. The damages are not what plaintiff has
lost pecuniarily, but what beyond that the jury
may think a fit reparation to plaintiff and pun-
ishment to defendant.

On the above case it will be insisted:

1. That a corporation may be liable for a
libel. *

P. db D. St. Co. V. Munfferford, 6 G. & J. ,
291; 7 G. & J.. 44; East Counties BaUway f.
Broom, 2 Eng. L. <& Eq., 406; 16 East. 8; An^.
& A., ch. 10, sec. 9; 14 Eng. C. L., 159;
Merrils v. Tariff Mdnuf. Co., 10 Conn., 884:
Williams v. Beaumont, 10 Bing., 260-270;
Ooodspeed v. E. Iladdam Bk., 22 Conn.. 530,
538: Trenton M. L. 1. Co. v. Pernne, 8 Zab.,
402.

2. That there is sufficient proof of the pub-
lication and printinc: by the Corporation.

Clark V. Corp. Washington, 12 Wheal., 40;
Bank U. S. v. Dandridge, 12 Wheat., 64; Bank
Columbia v. Patterson, 7 Cranch, 299; Union
Bank v. Bidgeley, 1 H. & G., 826.

8. That the publication was not in form or
substance a privileged communication.

4. The measure of damages was rightly as-
signed by the court.

14 How., 468.

5. (a) The jurisdiction is sufficiently alleeed.
(b) The question cannot now be raised on

the record.

(e) If it could, the facts show jurisdiction as
well as the averment.

Mr. Justice Campbell delivered the opin-
ion of the court:

The plaintiff (Quigley), a citizen of Dela-
ware, complained of the defendants, '' a body
corporate in the State of Manrland, by a law of
the General Assemblv of Maryland," for the
publication of a libel by them, in which his
capacitv and skill as a mechanic and builder of
depots, brides, station houses, and other struct-
ures for railroad companies, had been falselv
and maliciously disparaged and undervalued.

62 W. 8.

1858.

Phil A., Wilmingtok amd Bmi^t. R. R. Co. y. Quiolbt.

201^238

The defendants pleaded the general issue. On
the trial of the cause, It appeared that in 1854,
the president and directors, then in charge of
the affairs of the defendants, instituted an in-
quiry into the administration and mana^ment
of a person who had been superintendent of
their railroad for ten years. Among other
subjects the nature of his connection and
dealings with the pluntiff, who had likewise
been m the service of the Corporation as
** general foreman of all their carpenters,*'
engaged the attention of the committee of in-
vestigation. The president of the Company,
who conducted this inquiry before this com-
mittee on behalf of the Corporation, seems
to have been convinced that the superintendent
had exhibited partiality for the plaintiff, and
had allowed him extravagant compensation for
flervice, and the privilege of free transit over
the road for himself, his workmen, and freight,
to the detriment of the Company, and in breach
of his duty as superintendent. The superin-
tendent defended himself against these and
other imputations, and produced testimony to
the skill and fidelity of the plaintiff while in
the service of the Company ; also, to the value
of his services, and to the effect that no un-
usual or improper favor had been extended to
him.

The president of the Compan v, in the course
of the investigation, addressed a letter to an
architect, who had some acquaintance with the
plaintiff, to request his opinion of his skill as a
mechanic, and whether the services of the
plaintiff could have had any peculiar value to
to a railroad company. The reply of this
architect was very pointed and depreciativc of
the plaintiff, affirming that " he was not en-
titled to rank as a third-rate workman," and
'* was unable to make the simplest geometrical
calculations." All the testimony collected bv
the committee, as produced by the superintend-
ent, was carefully reduced to writing, and
printed; first for the use of the president
and directors, and afterwards was submitted
to the Company at their meeting on the
8th of January, 1855, with a report which
exonerated in a great measure the super-
intendent from any malpractice in consequence
of his relations with the plaintiff. The inves-
ti^tion was searching, and testimony, which,
with the report of the committee, fills two
printed volumes, was submitted to the Com-
pany. The letter of the architect, in answer
to the letter of the president, is printed in one
of these volumes, and this publication is the
libel complained of. Several of the directors
testify they were not aware of the pul)lication,
and evidence was adduced that the plaintiff had
declared that the investigation had resulted
in increasing his business. A verdict was re-
turned in favor of the plaintiff. The defend-
ants are a Company incorporated by the Legis-
latures of Delaware and Pennsylvania, as well
as of Maryland, to construct a railroad to con-
nect the three cities which contribute to form
its name, and a portion of their directors and
stockholders are citizens of Delaware.

The defendants contend that they are not
liable to be sued in this action ; that theirs is a
railroad Corporation, with defined and limited
faculties and powers, and having only such in-
cidental authority as is necessary to the full

See 21 How.

exercise of the faculties and powers granted by
their charter; that, being a mere legal entity,
they are incapable of malice, and that malice
is a necessary ingredient in a libel ; that this
action should have been instituted against the
natural persons who were concern^ in the
publication of the libel. To support this argu-
ment, we should be required to concede that a
conx)rate body could only act within the limits
and according to the faculties determined by
the Act of Incorporation, and therefore that no
crime or offense can be imputed to it. That
although illegal acts might be committed for
the benefit or within the service of the Corpo-
ration, and to accomplish objects for which it
was created by the direction of their dominant
body, that such acts, not being contemplated
by the charter, must be referred to the rational
and sensible agents who performed them, and
the whole responsibility must be limited to
those agents, and we should be forced, as a
legitimate consequence, to conclude that no ac-
tion ex deUeto or indictment will lie against a
corporation for any misfeasance. But this con-
clusion would be entirely inconsistent with the
legislation and jurisprudence of the States of
the Union relative to these artificial persons.
Legislation has encouraged their organization,
as they concentrate and employ the intelligence,
energy and capital of society, for the develop-
ment of enterprises of public utility. There
is Bcareely an object of general interest for
which some association has not been formed,
and there are institutions whose members are
found in every part of the Union, who contrib-
ute their efforts to the common object. To enable
impersonal beings — mere legal entities, which
exist only in contemplation of the law — to per-
form corporal acts, or deal with personal agents,
the principle of representation has been adopted
as a part of their constitution. The powers of
\he corporation are placed in the hands of a
governing body selected by the members, who
manage its affairs, and who appoint the agents
that exercise its faculties for the accomplish-
ment of the object of its being. But these
agents may infringe the rights oi persons who
are unconnected with the corporation, or who
are brought into relations of business or inter-
course with it. As a necessary correlative to
the principle of the exercise oi corporate pow-
ers and faculties by legal representatives, is the
recognition of a corporate responsibility for the
acts of those representatives.

With much wariness, and after close and ex-
act scrutiny into the nature of their constitu-
tion, have the judicial tribunals determined the
legal relations which are established for the
corporation by their governing body, and their
agents, with the natural persons with whom
they are brought into contact or collision. The U
result of the cases is, that for acts done by the
agents of a corporation, either in contractu or
in delicto, in the course of its business, and of
their employment, the corporation is respon-
sible, as an individual is responsible under simi-
lar circumstances. At a very early period, it
was decided in Great Britain, as well as in the
United States, that actions might be maintained
against corporations for torts; and instances
may be found, in the judicial annals of both
countries, of suits for torts arising from the
acts of their agents, of nearly every variety.

202-328

SuFBSXB Couirr of thb United Statbs.

Dbc. Tnax,

TrespoM quare daummfregU was supported in
9 Serg. & R, 04; Mound v. Mtmmouthshire
Canal Co., 4 Mann. & G., 462. Assault and
Battery; Moore v. FttckburyB, B. O., 4 Gray,
Mass., 465; Easfn Co.*s Hy. Co. v. Broom, 6
Eich.« 814. For damacres by a collision of rail
cars and steamboats. P?iU. A Bead. B. B Co.
V. Derby, 14 How.. 466; iV: T. dbVa. 8. 8. Co.,
19 How., 241. For a false representation.
Finnie v. Glasgow db 8. W. B. Co., 34 L. A Eq.
R.. 14; JBUing v. Bk. U, 8., 11 Wheat.. 69.

The case of Ths National Exchange Co. of
Olofgoto V. Drew, 2 Mac. H. of L. Cas., 108,
was that of a company in failing circumstances
whose managers sought to appreciate its stock
by a fraudulent representation to the company,
and a publication of the report as adopted by it.
that it9 affairs were prosperous. Two of its
stockholders were induced to borrow money
from the company to invest in its stock. The
question in the cause was, whether the com*
tMiny was responsible for the fraud. In the
House of Lords, upon appeal, Lord St. Leon-
ards said : '* I have come to the conclusion, that
if representations are made by a company
fraudulently, for the purpose of enhancing the
value of stock ; and they induce a third person
to purchase stock, those representations so
made by them, bind the company. I consider
representations by the directors of a company
as representations by the company, although
they may be representations made to the com-
pany." « « # The report "be-
comes the act of the company by its adoption
and sending it forth as a true representation
of their affairs; and if that representation is
made use of in dealing with third persons, for
the benefit of the company, it subjects them to
the loss which may accrue to the party who
deals, trusting to those representations.

It would be difficult to furnish a reason for
the liability of a corporation for a fraud, under
such circumstances, that would not apply to
sustain an action for the publication of a libel.

The defendants are a corporation, having a
large capital distributed among several hundred
of persons. Their railroad connects large
cities, and passes through a fertile district.
Their business brings them in competition with
companies and individuals concerned in the
business of transportation. They have a nu-
merous body of officers, agents and servants,
for whose fidelity and skill they are responsible,
and on whose care the success of their business
depends. The stock of the company is a vend-
ible security, and the community expects state-
ments of its condition and management. There
is no doubt that it was the duty of the presi-
dent and directors to investigate the conduct of
their officers and agents, and to report the result
of that investigation to the stockholders, and that
a publication of the evidence and report is with-
in the scope of the powers of the corporation.

But the publication must be made under all
the conditions and responsibilities that attach
to individuals under such circumstances. The
Court of Queen's Bench, in Whitfield v. 8mVi
Eos. B. B. Co., 96 Bng. C. L. (May. 1868),
say : '* If we yield to the authorities whicn say
that, in an action for defamation, malice must
be alleged, notwithstanding authorities to the
contrary, this allegation may be proved bv show-
ing that the publication of the libel took place

by order of the defendants, and was, therefore,
wrongful, although the defendants had no ill
will to the plaintiffs, and did not mean to in-
jure them. " And the court concluded : * * That
for what is done by the authority of a corpora-
tion aggregate, that a corporation ought as such
to be liable, as well as the individuals who com-
pose it."

The question arises, whether the publication
is excused by the relations of the president and
directors, as a committee from their board, to
the corporation itself. It cannot be denied that
the inquiries directed by those officers were
within the scope of their power, and in the per*
formance of a moral and legal duty, and that
the communication to their constituents of the
evidence collected by them, and their conclu>
sions upon the evidence, was a privileged com-
munication in the absence of any malice or Ixad
faith. But the privilege of the officers of the
corporation as individuals, or of the corporate
body, does not extend to the preservation of
the report and evidence in the permanent form
of a book for distribution among the persona
belonging to the corporation or the membera
of the community. It has never been decided
that the proceedings of a public meeting, though
it may have been convened by the auUiority of
law, or of an association engaged in an en-
terprise of public utility, could be reported in a
newspaper as a privileged publication. But a
libel contained in such proceedings, if preserved
in the form of a bound volume, might be
attended with more mischief to private charac-
ter than any publication in a newspaper of the
same document. The opinion of the court is.
that in so far as the corporate body authorized
the publication in the form employed, they are
responsible in damages. The circuit court in
structed the jury :

1. If the Jury And, from the evidence in thia
case, that the defendants, by the President and
Directors of said Company, published the letter
from John T. Mahoney to 8. M. Felton, Presi-
dent, &c., dated March 8d, l^^i, in the declara-
tion mentioned, and that any or all of the state-
ments in the said letter respecting the plaintiff
in his trade and occupation are false; and shall
further find, that the said President and Direct-
ors, at the annual meeting of the stockholders
of said Compan;^, held »th January, 1855, re-
ported to the said stockholders their action in
the premises, and that the proceedings ,of the
committee of investigation (which contained
the said letter) were then bein^ printe«i. and. as
soon as printed, would be distributed to the
stockholders, and that said report was accepted
by the stockholders; and if the jury shall fur-
ther find, that, after the meeting of the stock-
holders had adjourned, the President and Direc-
tors of said Company distributed the book con-
taining the said letter amon^ the stockholders
of this Company, or any of them, then the jury
may find for the plaintiff.

2. And if the jury find for the plaintiff under
the first instruction, they are not restricted in
giving damages to the actual positive injury
sustained by the plaintiff, but may ^ive such
exemplary damages, if any, as in their opinion
are called for and justified, in view of all the
circumstances in this case, to render reparation
to the plaintiff, and act as an adequate punish-
ment to the defendant

W V.fL

itas.

Phila.. Wilmimoton and Balt. R R. Co. y. Quiolst.

202-288

The first instruction is erroneous, because
the, publication to which the court referred as
blameworthy, and to authorize the Jury to find
A verdict against the defendant, took place after
the commencement of this suit.

The second instruction contains the same er-
ror, and is objectionable for the additional rea-
son that the rule of damages is not accurately
stated to the jury.

In Day o. Woodworth, 18 Row. 8. C. 871,
this court recognized the power of a jury in
certain actions of tort to assess against the tort-
feasor punitive or exemplary damages. When-
ever the injury complained of has been inflicted
maliciously or wantonljr, and with circum-
stances of contumely or indignity, the jury are
not limited to the ascertainment of a simple
compensation for the wrong committed against
the aggrieved person. But the malice spoken
of in Uftis rule is not merelv the doing of an un-
lawful or injurious act. The word implies that
the act complained of was conceived in the
spirit of mischief, or of criminal indifference to
civil obligations. Nothing of this kind can be
imputed to these defendants.

The letter of Mahoney was reported to the
Company with other evidence that rendered it
innocuous, and its statements were never adopt-
ed by them. The plaintiff has repeatedly af-
firmed that he had derived an advantage from
the investigation by the Company, and, upon
reading all the evidence, as reported and pub-
lished, we do not perceive how an impreshion
unfavorable to him could have been made by
it upon any candid mind. The circumstances
under wliich the evidence was collected, and
the publication made, repel the presumption of
the existence of malice on the part of the Cor-
poration, and so the jury should have been in-
structed

The averments in the declaration of the facts
proper to give the Circuit Court jurisdiction
over the parties, are identical with those which
were fully considered bv this court, and received
the sanction of two thirds of the Judges in
Marshall v. The Baltimore and Ohio B. B. Co.,
16 How., 314. A repetition of the discussion
that took place and was reported with that case
is deemed to be unnecessary.

The only plea filed in this cause is the gen-
eral issue. That plea raises an issue upon the
merits of the complaint, and leaves the juris-
dictional allegations without a traverse.

No question involving the capacity of the
parties in the cause to litigate in the Circuit
Court can be raised before the jury under such
pleadings. Ckmard v. AUantie Ineuranes Co.^
1 Pet., 886; Bhoane v. Qee, il Pet., 80; Wick-
life V. Owings, 17 How., 47. The testimony
that the States of Delaware and Pennsylvania
had respectively granted a corporate cJiaracter
to the same corporators that form the corpora-
tion in Maryland, for the extension of the rail-
road through those States, to connect the cities
that appear in the name of the Corporation,
and the testimony that some of the directors of
the several corporations reside in Delaware, in
the condition of the pleadings, was immaterial
and irrelevant.

For the errors toe have noticed, the judgment
ef the Circuit Court is reversed, and the cause
remanded.

See 21 How.

Phila., Wilm. & B. R. R. Co.

V,
QUIQLBT.

Mr, Justice Daniel :

In the judgment of this court, so far as it
directs a reversal of that of the Circuit Court,
I fully concur. But, in my view, the decision
has performed but half its proper oflSce, by
omitting to order a dismission of this case by
the circuit court.

It is not designed here to repeat the argu-
ments or the authorities so often and so una-
vailinglv adduced, in opposition to the cogni-
zance or the federal court of controversies in
which corporations are parties.

Some cursory recapitulation will, however,
be attempted of previous decisions made here,
as evincing the progress of relaxation and in-
consistency from the first departure, from
what, by me, at leasts are deemed sound, legal,
and constitutional principles, down to the re-
markable instance exemplified in the case be-
fore us.

The first step in this promss was the decis-
ion that a corporation might be made a party
in the federal courts, bv entirely destroying the
existence of such a body; and by this process
it was pretended that it was made capable of
suing and being sued, and by imposing liabili-
ties on private natural persons, who, by the
veiT nature and character of the corporate
body, and by the terms of its organization,
posseBsed not one of its powers, and could ex-
ercise not one of its functions. Vide 6 Cranch,
61, The Bank of the United States v. Deveaux.
Next, and in order to cover this glaring irreg-
ularity, it seemed necessary to transform a cor-
poration into a qucui, or into so much of a citi-
zen as would authorize its pleading and being
impleaded in the federal courts, although the
Constitution and the laws of the United States do
not recognize nor make mention of any particu-
lar part or fraction of a citizen, but confine the
cognizance of the courts to controversies be-
tween citizens of different States, sustaining
their full natural political, and social relations.
This was the object attempted in the case of
The Cincinnati BaUroad Company v. Leison, in
the 2d of Howard, 497. It then became nec-
essary to give to this citizen corporation a local
habitation or residence, in order to fix his ori-
gin and position, on which it was, and is yet,
perhaps, conceded, that his admission into the
courts of the United States was dependent; and
this court, to accomplish this purpose, seems
to have settled upon one or the other of the
following conclusions, or perhaps in part on
both: that either the locality within which
this citizen may be fabricated, or that within
which his agents or factors (viz. : the president
and directors) hold their place of business, de-
termines his political position, his capacities
and responsibilities, although it is palpable this
latter conclusion abrogates completely the pre-
vious doctrine of this court, that the rights and
powers of a corporation remain and adhere in
the individuals interested in the company, and
do not appertain r^ulifi-ly to the associated or
organized body. From these anomalous con-
clusions have arisen the curious formula in
pleading, by which access has been sought and
permitted in the courts of the United States —
as, for instance, a certain company, a body

202-228

SUPHKlOfi COUBT OF THB UnITBD STATBS.

Dbc. Tbrm,

corporate, created by some stated authority,
but without averring citizenship or residence
on the part of that body, but leaving these to
be implied by the court, sues or is sued. In
the case under review, the j^rtv defendant be-
low is averred to be the Philadelphia, Wil-
mington and Baltimore Railroad Gompanv, a
body corporate in Maryland, incor^rated by
a law of Mai7land. Here, then, is averred
neither citizenship, nor an identity with, nor
an equivalent for citizenship, nor residence,
nor commorancy anywhere, on the part of th^
defendant. The corporate body is stated to be
in Maryland, but whether in its orj^anized con-
stitution, or by the citizenship of its president
and directors, or by its individual members, or
whether in either character it is or is not of
Maryland, is left for the court to supply; and
this, too, in defiance of the unbroken chain of
decisions from Bingham v. Cabot, 8 Dall., 882,
down to Sullivan v. Fulton 8, B. Co., 6
Wheat., p. 450, comprising twelve distinct
cases, ruling, in totidem verlis, that under the
2d section of the 8d article of the Constitution,
not only must the parties to suits in the
federal courts be citizens and inhabitants of
different States, but that this character must
be averred expressly, and must appear upon
the record, and cannot be inferred from resi-
dence or locality, however unequivocally stated ;
and that the failure to make the required aver-
ment will be fatal to the jurisdiction of a fed-
eral court, either original or appellate, and is
not cured by the want of a plea or of a formal
exception in any form, and that even the party
who is guilty of the irregularity may avail
himself of it upon appeal.

This case is marked by peculiarities, which,
if they can, consistently with the rules of pleadr
ing and evidence, be regularly brought into
view, will show more clearlv than has hitherto
been done, the effects of the anomalous pro-
ceedings above adverted to. It is ruled by all
the cases, that where want of jurisdiction in
the federal courts is apparent on the face of the
pleadings, the courts, original and appellate,
are bound to take notice of this defect, and that
there can be no requisition on parties to show
it either by averment or proof. The establish-
ment of this principle certainlv dispenses with
the necessity for proofs in such a case, forwh^
undertake to establish by proof that which is
admitted? Moreover, the character of the de-
fect partakes more, perhaps, of matter of law
than of fact. Hence it may be questionable,
how far the introduction of any evidence, and
still more of cumulative evidence, is or was ad-
missible to show this admitted or patent defect,
which it has been so often ruled that the court
must take notice of without plea or demurrer.
But we see by the record, that evidence, ex-
tensive and documentary, was introduced as
to this point, and read without objection. And
to what conclusions does this evidence, if ad-
missible, inevitably lead? According to the
decisions previously made here with respect to
corporations — according, too, to the argument
of counsel for the defendant in.error — the Bal-
timore Railroad Company was created sepa-
rately and exclusively by the State of Mary-
land, and its attributes of suing or being suea,
and every other attribute or function, was im-
parted and perfected by that separate authority,

which was limited by the power of Maryland.
So, too, the Philadelphia Railroad Company
was separately and independently created oy
Pennsylvania; and, in like manner, and with
like effect, the Delaware Railroad Company,
by the State of Delaware. Neither of the
States just mentioned had the power to create
a citizen of another State, nor to create or in-
vest any attribute or right of citizenship beyond
its own jurisdiction. It follows, then, that the in-
corporation of these companies was in each &
separate, independtot and distinct and com-
plete Act, operating only within the sphere of
the legitimate authority that p«rformed it, and
any right or attribute of citizenship it could
confer, would be imparted to its own subjects
alone; it could not determine the polity of
other communities, or the rijs^hts of their peo-
ple. But, by some professional magic, these
three separate creations, which, if Invested
with any of the qualities of citizenship, were
necessarily circumscribed as to these by the
authority of their respective States, are here
converted into one. These three quagi citizens
of different States are transformed into one;
and, although threefold in form, less than one;
and by this transformation are brought into
tribunals where real citizens are not permitted
to litigate without averring, and if denied, not
without proving the truth and reality of their
character in obedience to the command of the
Constitution. In the present instance, this
may subserve the convenience of the individ-
ual, but in another aspect the mischiefs inci-
dent to such a relaxation would be apparent
and serious. It would be putting it m the
power of separate corporations, deriving their
origin from distinct sources by claiming a joint
name or title, to select at will, for its purposes,
a forum within that jurisdiction, within which
either corporate body was created. The aver-
ments of citizenship and residence being dis-
pensed with by this court, no check is left to
such a combination and irregularity; and by
this practice there is extended to artificial
bodies, which are not, and cannot, from the
nature of thines, be citizens, privileges which
belong by the Constitution to citizens only, and
upon proof, if required, of the reality of their
character as such.

It has just been remarked that the arguments
against the jurisdiction of the federal courts
over corporate bodies may be found in some
of the opinions delivered in the case of Mar-
shall V. The Baltimore and Ohio Bailroad Cotn-
pany, and it is said that these arguments it is
unnecessary to repeat, and it is seen that they
have not been deemed of sufficient cogency to
prevent a concurrence in proceedings and pre-
tensions which those arguments were urged to
condemn.

The relevancy or the justice of the above
declaration I confess myself somewhat at a loss
to comprehend. If it be intended by way of
recantation, prompted by a conviction of the
unsoundness of those arguments, and as a criti-
cism upon those who are unable to chime in
with the notes of such a pcUinodia, it would
seem to me that a direct avowal of that convic-
tion, and of the consequences to which it had
led, would have been nothing more than justice
to all. If, on the other hand, the soundness of
those arguments is still regaided as a regular

62 U. S.

1858.

PhILA., WlUnHGTON AND BaLT. R. R. CO. V QUIOLBT.

202-228

deduction from constitutionftl priDciple, and
from fealty to the Constitution, then a relin-
quishment of those arguments, or the failure
to assert them on every occasion similar to that
first calling them forth, however justifiable in
the view of others, would in myself, by myself,
be felt as a compromise of a sacred and solemn
dutv. The vindication of tmth, whenever we
^afl be called on to speak or to act, can never,
in my opinion, be properly shunned; I, there-
fore, am bound to re-assert all which I have en-
deavored earnestly, however feebly, to main-
tain, and which I still believe.

I am further of the opinion, that apart from
any question as to the peculiar Jurisdiction of
the federal courts, this action could not be
maintained in any forum possessing even gen-
eral legal powers. It is to be borne in mmd,
that the proceedings in this case are not founded
upon any express or peculiar right or authority
vested by statute or other special and competent
power, but are claimed as the legitimate con-
sequences inherent in, and flowing from,
thenature and constitution of corporations ag-
gregate. By those who affirm this doctrine it
is indispensable that they should show as
inherent in, and consistent with, the con-
stitution of such corporations, the attributes
and qualities to which proceedings like the
present are calculated to apply, and with which
they can, by any rational or logical comprehen-
sion, be made applicable. The metamorphosis
which would transmute an aggregate corpora-
tion into a natural person, must necessarily
transfuse into this new creation the capabilities
and qualities of the being into which it is
changed. Upon any other hypothesis, the fact
of identitv could not be. Natural persons are
capable of the passions of love and hate; can
contend in mortal combat by duel or otherwise;
can go into the field in command of armies;
can sit upon the bench of Justice, or in the leg-
islative or executive departments of the Gov-
ernment. According to this transmutation
theory, all these qu^ities are imparted to its
new Promethean experiment, who, of course,
could he be only apprehended or laid hold of,
might, like his 'pi'ototype — or, more properly,
his other self — be subjected for the misuse of
those qualities to the extremest penalties of the
law, the sca£Fold or the gallows. To my appre-
hension, this theory involves the confounding
of all political, legal, moral and social distinc-
tiona By that apprehension, derived from the
definitions of corporations aggregate, as given
by Brooke, Coke and Blackstone, and by the
express language of this tribunal in the earlier
cases decid^ by it, these t)odies are regarded
as merely artificial — a species of fictiones juris,
created for particular objects, and vested cer-
tainly with no greater or higher attributes than
the creator of those bodies has power to be-
stow. Man can have no power to confer mind,
passion, or moral perception, nor moral powers,
upon a mere fabrication of his own — a mere
piece of parchment or paper. No qtto animo,
therefore, can be affirmed of a fiction to which
no animus, or passion, or moral quality, can
be imparted.

It has ever been admitted, that into slander
or libel, malice essentially enters. Slander or
Ubel is an injury infiicted with a wicked or
malevolent motive. Reason and common sense

See 21 How.

would hence conclude, that where there could
be motive of no kind whatsoever, there could
be no malice, and therefore no offense, of which
malice is the essential, the leading and distin-
guishing characteristic.

In several of the English cases it has been
ruled, that trover and trespass guctre clausum
fregii may be maintained against a corporation;
and this, with respect to the latter action, is
going a great way, as it is not very easy to ex-
plain in what mode a mere fiction or legal fac-
ulty can act vi et a/rmi»; yet a conceivable
distinction may be taken between acts injurious
in their effects and viewed as mere facts, and
performed independently of or without motive,
and for which the actor is bound to make repar-
ation, and conduct, the character of which lies
exclusively in the motive, and which, apart
from such motive, can neither exist nor be
conceived.

In conformity with these conclusiohs is the
opinion of Aldersen, Baron, as late as the year
1854. Vide, Stevens v. Midland Counties Bail-
way Co,, 10 Exchequer Rep., 856.

But a precedent for the affirmation of such a
legal, physical, and moral anomaly as an act to
be characterized and appreciated by a quality
which by no possibility can appertain to it, is
relied upon in this case; and so far as that
precedent is comprehended, it seems designed,
at any rate, for an application like the one
made of it in this cause. It is believed, how-
ever, to be a solitary precedent; and as the
force of that precedent (owing, perhaps, to no
fault in his Lordship's reasoning, but in those
who are incapable of understanding his logic)
is not very clearly apprehended; and as it most
certainly contravenes the course of decision for
centuries, the presumption of not yielding im-
plicitly to the ruling of a Lord Chief Justice
may perhaps be pardoned. This precedent is
found in the case of Whitfield et al. v. The
Southeastern BaHway Company, just cited from
the bench. That was an action for a libel, and
the declaration was demurred to. for the reason
that malice could not be affirmed of a corpora-
tion aggregate.

His Lordship says: " The demurrer to the
declaration in this case can only be maintained
on the ground that the action will not lie with-
out proof of express malice, as contradistin-
guished from legal malice."

How is this expression of his Lordship to be
understood? The averment of malice, and the
application of that averment to the defendants,
was a question arising upon the pleadings, and
upon tne character or capacity of the party
complained of, as disclosed upon the face of
the declaration. Whether malice, either ex-
press or implied, could be imputed to the plaint-
iff, could have no infiuence aprvori; if malice
was alleged, it opened at once the only legiti-
mate question arising upon the demurrer, viz. :
could the defendants be guilty of malice? The
character or the degree of malice was a ques-
tion arising upon the proofs, and. was the
proper subject for the instructions from the
judge. It would be difficult to find a prece-
dent in pleading, wherein a distinct averment
as to express or implied or legal malice was
made.

His Lordship proceeds: ''But if we yield to
the authorities which say that in an action for

290-294

8UFBBKB Court of thb Umitbd Btatbb.

Dko. Ttox,

defamation malice must be alleged, notwith-
standing authorities to the contrary." And
here, with a willingness always to be instructed,
I would gladly leran what authorities those are
to which reference is thus made; for within
the sphere of my own inquiries, going as far
back as Owen, 61 ; Noy, 85; 1 Saunders, 242;
4 Bur., 2422; 8 Taunton. 246; and coming
down to 8 Adolph. & £11., 652; 1 M. & 8.,
-689. it is held, without a dissentient, that the
declaration must show a malicious intent in
defendant; and although the word "malicious-
ly " is not absolutely necessarily requisite, yet
words of equivalent import must be used; and
it is said that the usual and better form of
pleading is. falsely and maliciously. Vide 1
Rep., 278.

His Lordship further proceeds, or is made to
say : '* This allegation may be proved, bv show-
ing that the publication or the libel took place
by order of the defendants, and was therefore
wrongful, although the defendants had no ill
will to the plaintiffs, and did not mean to in-
jure them. Therefore (note the conclusion),
** The ffround.on which it is contended that an
action for a libel cannot be maintained against
a corporation agirregate, fails." He who can
connect this corollary with the premises sur-
passes any ingenuity of mine.

To return to his Lordship's argument :

"This allegation may be proved." What
allegation, we ask? Why, the libel, a mali-
cious publication, " by showing that it took
place by order of the defendants, although the
defendants had no ill will to the plainti£», and
did not intend to injure them." Thus it is said
to be the law, that a libel may exist without an
unfriendly intention; and with equal reason
might it be alleged or imputed where the inten-
tion was amicable.

I give the concludin|^ reasons ascribed to his
Lordship .for his decision. They are as fol-
lows:

" I may mention, that corporations aggregate
are now so common, that 1 believe that a pub-
lic Journal is conducted by a corporation aggre-
gate, limited. Therefore, it seems to us, that
for what is done by the authority of a corpora
tion aggregate, that a corporation aggregate
ought, as such, to be liable as well, perhaps, as
the individuals. Therefore, we think there
ought to be Judgment for the plaintiffs."

The connection between the number of ag-
gregate corporations and their capacities or
liabilities, and the dependence in any degree
of the one upon the other, I leave to those who
have been favored with greater perspicacity
than has been given to me. I am wholly un-
able to perceive them.

In fine, with due respect for others, and with
becoming diffidence of myself, I am constrained
tosav, of I tie opinion in the case of WhitfiM
V. The SouUieaetem Bailtoay Company, as it has
been broughtto the view of this court, that in
its argummt and conclusions it is confused
and obscure; and is incongruous and contra-
dictory, both in its reasoning and its con-
clusions. In the line of English adjudications
it presents itf^lf as solitary and eccentric, and
in opposition to the mo»t inveterate, the clfar-
est, and reiterated distinctions announced by
the sages of the law— distinctions having their
foundation in reason and in the essential char-

acterof the subjects to which those distinctioiui
have been applied. I cannot yield to that opin-
ion my assent. I think, therefore, that for
either of the oblections before assigned there
should be added to the reversal oi the Judg-
ment of the Circuit Court an order for a dis-
mission of the suit.

Clted-7 Wall., 418: 10 Wa]l.,M5; 91 U.S..
U.S., 682; 100n.S.,7(B.

DANIEL H. LOWNSDALE. kt al.,

JOSLAH L. PARRI8H.

(Sees. C.,21 How., aXK-294.)

Appeal* and write of error from court of Or^
gon Territory— juriediction, as to eul^eet and
amount

By the Act of Oonffresi orsranizlng Orefron Terri-
tory it is provided (sec. 9) that writs of error and
appeals from AdmI decisions of the Supreme Court
of Oreg'on shall be allowed to the Supreme Court
of the United States, where the value of the prop-
ertv. or the amount in controversy, shall exceed
12,000, and alra in cases where the Constitution of
the United States^ or an Act of Congress, or a Trea^
ty of the United States, is brought in quefition.

Where the amount of damaoee does not appear
from the bill, or otherwise, ana it is difficult lo sea
how either party to the suit could sustain damage,
and neither the Constitution of the United States,
nor an Act of Congress, nor a Treaty, was brouirht
in question in the lower court ; there in no Juris-
diction In this court to examine and revise the de-
cree of the Supreme Court of Oregon.

ilr^t^ Dee. gg, 1868, Decided Jan, 17, 1859,

APPEAL from the Supreme Court of the Ter-
ritory of Oregon.
The case is fully stated by the court.

AfeAtrs, R. Johnson* R. Johnson, Jr.,
C. Cushln^r and R. H. Oillet, for appel-
lants.

Mr, S. S. Baxter, for appellee.

Mr. Jfutice Catron delivered the opinion of
the court.

Parrish filed his bill in equity against Lowns-
dale and others in a District Court of Oregon
Terrilory, praying for an injunction to restrain
the defendants from obstructing a narrow piece
of land, claimed as Water Street, lying in front
of the complainant's storehouse, and a square
of ground claimed as his, two hundred feet on
each side, laid off into eight lots, as city prop-
erty, within the City of Portland, and on one
of which the storehouse stands. The strip of
land lying in front of these lots extends to the
Wallamette River; at that point, the land is
several hundred feet wide. The complainant
alleges that it was dedicated to the puolic as a
street, to the use of the proprietors of the town,
for the purposes of commerce; the river there
bi'ing withm the flow of tide, navigable for
ships, and requiring a wide front space to ac-
commodate loading and discharge of cargoes.

The District Court found that Water Street,

NoTB.— Jurfodfetton of U, S. Supreme Omrt da-
vendeii t on amount, Jnterei't cannot be a^ded Ut ofve
jiirindictf^m. BfU) vahie of thing demanded may be
8h0twn, Wltat easet revievoalAe tnttmut regard toeum
in cntravensy. See note to Gordon v. Ogden, ft IT.
8. (8 Pet.), 88.

•8 U.8.

1868

Mabok y. Oamblb.

800,891

in the City of Portland, was bounded by the
river, opposite the lots of the complainant ; and
that the defendants at the commencement of the
aoit were about to obstruct the same, to the
special injury of the plainti£F, as stated in the
bill; and thereupon an injunction was granted,
as prayed for. This decree was affirmra in the
Supreme Court of Oregon, where the respond-
•ents carried the cause by appeal, and from that
decree they have appealed to this court, and
we are called on to revise the proceedings be-
low.

The first question presented is, whether this
•court has jurisdiction and power to re-examine
the controversy.

Bv the Act of Congress organizing the in-
habitants of Oregon Territory into a govern-
ment, it is provided (sec. 9) that writs of error
«jid appeals from final decisions of the Supreme
Court of Oregon shall be allowed to the Supreme
Court of the United Stales, where the value of
the property, or the amount in controversy,
shall exceed $2,000, to be ascertained by the
the oath of either party, or by a competent
witness; and also in cases " where the Consti-
tution of the United States, or an Act of Qon-
.^Tess.or a Treaty of the United States,is brought
m question."

The complainant assumes that he would sus-
tain special damage by the obstruction of the
apace between his property and the river, but
how much damage does not appear from the
Allegations in the bill, or otherwise; and it is
•difficult for us to see how either ^rty to the
euit could sustain damage to his rights of
property, as the town was laid o£F in 18i5, on
property of the United States, whilst our in-
habitants who had emigrated there, and those
of Great Britain, held loint possession of the
•country in virtue of the Treaty between the
two Nations of October 20th, 1818 (art. 13).
which was continued in force by the Conven-
tion of August 6th, 1827.

In June and July, 1845, the people of Oregon
Territory, *' for mutual protection, and to se-
cure peace and prosperity among themselves,"
elected delegates, who met in convention, and
4ulopted laws and regulations for their govern-
ment, "until such time (say they) as the United
States of America extend jurisdiction over us."
In this plan of government, it is provided that
anyone wishing to establish a claim to land
shall designate the extent of his claim by line
marks, and have it recorded in the Office of the
Territorial Recorder; the claim not to exceed a
mile square, or 640 acres. The description of
claim under which the complainant and the re-
spondents set up title is founded on this regu-
lation. By the Treaty of 15th June, 1846. the
line dividing our possessions and those of Great
Britain west of the RoclLy Mountains was con-
cluded; and on the 14th of August, 1848, Con-
eress passed an Act to establish the Territorial
Government of Oreffon, in which the laws then
existing under the Provisional (Government (es-
tablished bv the people) are continued, and de-
clared to 6e operative until altered. " But
^says the Act, sec. 14) all laws heretofore passed
in said Territory, making grants of land, or
otherwise affecting or incuoiDering the title to
lands, shall be. and are hereby declared to be,
null and void." Congress passed no law in any
wise affecting title to lands in Oregon Ter-

8ee 21 How. U. 8., Book 16

ritory till September 27, 1850; and the bill in
this case was filed July 29, 1850, so that, when
the litigation commenced, neither party to the
suit had any title to or interest in the land
whatever; and therefore the respondents and
appellees could not sustain injury by being en-
joined not to erect buildings on lands belonging
to the Government in which they had no inter-
est. It is proper to remark here, that we have
nothing to do with, nor can we notice, rights
acquired to this property by Acts of Congress
passed subsequently to the origin of this con-
troversy.

Neither the Constitution of the United States,
nor an Act of Congress, nor a Treaty, was
' 'brought in question'^in the lower court ; neither
side could have legitimately raised such a ques-
tion, and called for its decision ; and to give this
court jurisdiction of the case, in this instance,
the question must have been raised and decided
in the lower courts, and it must so appear on
the record. 16 Pet., 281.

Being of opinion that there is no jurisdiction
in this court to examine and revise the decree of the
Supreme Court of Oregon, toe order the appeal
to be dismissed.

JOHN T. MASON, Pff. in Eh-.,

JOSEPH C. GAMBLE and DAVID
GAMBLE.

(See S. C, 21 How., 890, 891.)

Writ of error in revenue cases — ttalue in eontro-
f>er9y immaterial, when IT. 8, is plaiintiff—
ot/iertoise, in suits by importer.

The Act of May Slat, 1844 (6 Stat., 668), autborizes
a writ of error, at the lustanoe of either party, upon
a final Judflrment in a circuit court in any civil ac-
tion brouffht by the United States for the enforce-
ment of the revenue laws, or for the cellection of
duties, due or alleired to be due, without regard to
the sum or value in controversy. •

The writ of error is authorized in those cases
only in which the United States is plaintiff, in the
suit.

The law cannot be extended to suits brouflrht by
the importer a^nst the Collector ; and in such
cases woere the sum or value in controversy does
not exceed $2,000, the writ must be dismissed for
want of Jurisdiction in this court.

Argued Jan, U, 1869. Decided Jan. 18, 1859.

IN ERROR to the Circuit Court of the United
States for the District of Maryland.
On motion to dismiss for want of jurisdic-
tion.
The case Is stated by the court.

Mr. J. S. Black, AttyGen., for plaintiff
in error.

Mr. J. M. Campbell* for defendants in er-
ror.

Mr. Ohief Justice Taney delivered the opin-
ion of the court :

A motion has been made to dismiss this
case for want of jurisdiction, upon the i^ound
that the sum in dispute does not exceed $2,000.

The case is this: the plaintiff in error is Uie
Collector of the Port of Baltimore, and, as such,
demanded a certain amount of duties on goods
imported by the defendants in error, which
they believed was greater than the amount im-

6 81

881-848

BXTFBBKB OODBT OF TBS UhITBD StATBB

Dbc.

posed by law. The duties demanded were paid
under protest, and this suit was brought to re-
cover back the amount alleged to be overpaid.
At the trial, the jury, under the instruction of
the court, found a verdict in favor of the de-
fendants in error for the sum of $198.88, upon
which a judgment was entered against the Col-
lector; and this writ of error is brought on that
Judgment.

Tne Act of Congress which is supposed to
give Jurisdiction in cases of this description is
theActofMay8l8t,1844.6Stat.,U.8.,658. This
Act authorizes a writ of error, at the instance
of eiUier party, upon a final Judgment in a cir-
cuit court in any civil action brought by the
Unit^ States for the enforcement of the rev-
enue laws, or for the collection of duties due
or alleged to be due, without regard to the sum
or value in controversy. And it is true, that
the same reasons which induced the Legislature
to give the writ of error in the cases mentioned
in the law, apply with equal force to suits
against a collector to recover back duties which
he alleged to be due, and had already collected.
The questions are of the same character, and
the interest of the United States the same in
either case. And it is most probable that
suits against the Collector were omitted in
the Act of Congress by some oversight or ac-
cident.

But. however that may be, the writ of error
is authorized in those cases only in which the
United States are plaintiffs in the suit. The
language of the law is too plain to admit of
doubt, and the words cannot by any reason-
able or fair construction be extended to suits
brought by the importer against the Collector;
and as the sum or value in controversy does
not exceed $2,000, and the case is not provided
for by the Act of Congress referred to, the torit
muit be ditmiated for want ofjuritdktum in thie
court.

MARY ANN THOMAS, Pff. in Er.,

ELIZA LAWSON et al., Heun at Law of
James Lawson, Deceased, by GEORGE A.
GALLAGHER, their Guardian ad litem.

(See 8. C, 81 How., 881-843.)

General otjjecUon^ token not »ufflci&nt — Deed,
token evidence in Arkaneas — tax deed prima
facie etidence of regularity of proceedings and
validity of eate^--on\i9 probanai thrmen on as-
eailant of tax title — decree of court of that
State, a bar againet daime of tUegaUty in pro-
ceedings.

Where the objections agafnst the admission of a
deed, were that the deed and the oertiflcate bore
upon tfaelr taoe unmistnkable evidence of fraud,
but what those markB of fraud were, is not stated,
this court cannot inquire whether the decision ad-
mittinflT the deed was rl^rht.

By the law of Arkansas, every deed which shall
be acknowledired or proved and certified as pre-
scribed by that Act and recorded, may be read in
evidence in any court in that State without fur-
ther proof of execution.

By a law of the same State, Miles and convey-
ances made by the pheriff and collector for the non-
payment of taxes, shall vest in the grantee a good
and valid title, and shall be evidence of the resru-
larity and lesrality of the Bale of such lands.

The intention of the Statute Is to cast the oniM

probandi on the assailant of the tax title, by
making the deed evidence of the title of the par-
chaser, subject to be overthrown by proof of non-
compliance with the law.

A deed from sheriff and collector on a tax sale*
Is prima facie evidence of the assessment, taxation,
and forfeiture of the land ; of the regularity or
every proceeding previous to the sale; of the com-
petency of the officer making the sale and convey-
ance ; of the validity of the sale ; and casts upon
the assailant of any of these prerequisites, the
burden of showing the absence or defectiveness of
any of them.

But every question with respect to the nmren
ment, or the non-payment ox the taxes, or the
regularity of the proceedings of the sheriff and
coTlecstor was in this cane concluded by the peti-
tion of the purchaser to the State Court, and the
decree of confirmation pronounced upon that pe-
tition.

The Jurisdiction of that court over the contro-
versy is founded on the presence of the property,
and like a proceeding in rem it becomes conclusive
against the absent claimant as well as the present
contestant.

By the law of that State, a Judgment or decree
confirming such sale operates as a bar aaainst all
persons thereafter claiming said land, in conse-
quence of Informality or illegality in the proceed-
ings.

Submitted Dec. tt, 1858. Decided Jan. jf^. 1859.

IN ERROR to the Circuit Court of the Unit-
ed States for the Eastern District of
Arkansas.

The history of the case and a statement of
facts appear in the opinion of the court.

Mr. A* Fowlert for plaintiff in error:

The deed from Borden, as collector, to Law-
son, embracing the land in controversy, was
clearly inadmissible as evidence, upon Uie f ol-
lowingjCTOunds. to wit:

Ist. The general objection applicable to all
collectors' deeds upon general principles, in the
absence of any statute making them per ee evi-
dence of title, or evidence at all, unless all the
material previous steps and acta required bv
the laws, providing for the assessment and col-
lection of taxes ana sale of lands for the non-
payment thereof, &a, make it utterly inad-
missible.

14 Pet., 828; 4 N. H., 875; 7 Cow.. 88; »
Mo., 886; 10 8m. & M., 264; 26 Miss.. 189; 8
Ark., 277; 15 Ark., 865; 11 How., 425; 18
Ark.. 256; 1 Barb., 114; 18 How., 142; 15
Ark., 388.

As proof that the Uihd was listed or as-
siwsed *

8 Ham. Ohio. 232; 14 Pet., 328; 8 BUickf..
351; 1 Munf., 480; 4 McL., 219; 18 How., 142.

And that it was taxed :

8 Ham. Ohio, 282; 14 Pet., 828; 4 Terg..
807; 10 Ohio, 156.

And that it was advertised, as required hj
the Statute:

8 Ham. Ohio, 282; 14 Pet., 828; 10 Ohio.
156; 11 How., 425; 26 Miss., 189; 4 McL., 219.

And that the sale was made according to
law

10 Ohio. 156; 13 Ark., 250; 15 Ark.. 871; 4
McL., 219.

And that the collector had authority to sell:

8 Ham. Ohio, 282; 4 N. H., 875; 14 Pet.«
828; 11 How., 425; 10 Ohio, 156; 18 Ark., 260;
13 Ark., 876; 2 Barb., 114.

In all such cases, in passing upon tax titles,
the utmost strictness m performance of the
substantial preliminaries, is always required,
and the construction against such titles is

69 U. B.

1»%

Thomas t. Lawbon.

881-848

strict, and the purchaser buys at his peril, and
is boond to take notice of all irregularities.

8 Ark.. 277; 11 How.. 485; 18 Ark., 250; 16
How.. 618.

The Act of March 5, 1888, making such
deeds evidence, is restricted, and only applies
to sales made under that Act.

Art. Dig. (1848), ch. 189, p. 888, sec. 112.

Mr, O. C« Watkins, for defendanto in
error.

Mr. Jtutiee Daniel delivered the opinion of
the court:

This was an action of ejectment, instituted
by the plaintiff, a citizen of Indiana, and as
sole heiress of John Crow, deceased, against
James Lawson, a citizen of the State of Ark-
ansas, for the recovery of a tract of land situ-
ated in the State last mentioned, described in
the declaration, and avierred to be of greater
value than $2,000. Pending the proceedings
in the Circuit Court, Lawson, the original de-
fendant, having died, the cause was revived
against the defendants upon the record as his
heirs, and upon a trial of the cause, on the
16th day of April, 1856. the jury rendered a
verdict for the plaintiff, and on that verdict
the court ^ve a Judgment in favor of the
plaintiff, with costs of suit. At a subseouent
day of the term, the court, on motion of the
defendants, awarded anew trial in their behalf;
and on the 22d day of April, 1857, this cause
being again heard, a verdict was rendered in
favor of the defendants below, the defendants
in error, and upon this verdict the court pro
nounced Judgment in behalf of the defendants,
inclusive of all the costs of suit.

In this action the defendant pleaded six sev-
eral pleas: first, the general issue not guilty.
on which there was a Joinder; and five other
pleas, all of which were either stricken out or
overruled upon demurrer except the fifth, to the
following effect: that the defendant was a
purchaser of the tract of land in the declara-
tion mentioned, at a sale made by the sheriff
aoo collector of the revenue of the county in
which the said land was and is situated, for
the non-payment of the taxes assessed and due
thereon, and that he has held the peaceable, ad-
verse, and unbiterrupted possession of the said
land under and by virtue of his said purchase
for more than five years next before the com-
mencement of this suit On this fifth plea,
also, issue was Joined.

Upon the trial in the court below, the plaint-
iff gave in evidence a patent from the United
Slates, bearing date on the 1st day of Febru-
ary, 1821, to the plaintiff and others, heirs of
John Crow, deceased, for the land in contest,
which patent was read without oblectton, the
titles of both plaintiff and defendants being
deducible from that act of the Government.
The plaintiff further proved that she was the
only surviving child and the sole heir of John
Crow, and was the widow of James Thomas,
who died in the year 1840; and that from the
year 1889 she had resided in the State of In-
diana, and was a citizen of that State. The
plaintiff further proved the possession of Law-
son, the ancestor of the defendants, of the land
at the time of the institution of this suit, and
his refusal to surrender possession to the

ttee SI How.

plaintiff. A.nd here the plaintiff rested her
case upon the evidence.

The defendants, in support of their title and
right of possession, offer^ in evidence a deed,
bearing date on the 2d day of November. 1846,
from W. B. Borden, at that date sheriff, and
as such ex ojficio assessor and collector of the
taxes for the County of Pulaski, in which
county the lands in contest are situated, con-
veying those lands to the ancestor of the de-
fendants.

In this deed \t is recited, that in the year
1824, in conformity with the laws in force in the
then Territory of Arkansas, the lands in contest,
with several other parts of sections, all situated
in the County of Pulaski, were by the sheriff,
as ex effleio assessor and collector for the county,
assessed for the taxes payable thereon for that
year. That in conformity with the law, and
within the time thereby prescribed, the sheriff,
as ex officio assessor and collector, filed in the
office of Clerk of the County Court a list of
lands and town lots owned and assasBed to per-
sons then residents of said county, in which
list the lands in the said deed were embraced ;
that a cof>y of the list so made and filed was
by the said officer put up at the door of the
court house of said county, and published in
tfie Arkanme State Qazetie, a newspaper print-
ed in the Territory, for four weeks successively
before the day of sale, as prescribed by law.
Tha{ the sheriff, as ex officio assessor and col-
lector, in like conformitv with law, -on the Ist
day of November, 1824, exposed and offered
for sale, at the court house of the said county,
at public auction, the several parcels or parts
of sections of land above mentioned, for the
payment of the taxes, and the penalty payable
upon the amount of those taxes. That lliomas
Newton became the purchaser of the several
parcels of land, and transferred his certificate
of his purchase of those lands to James Law-
son. That the sheriff, as ex officio assessor and
collector, made out and delivered to the pur-
chaser a certificate of purchase containing the
requisite description of the taxes and penalty
on the lands listed for taxation, and that the
amount was paid by Newton, the purchaser.
That one year having elapsed since the sale by
the sheriff, and that Newton, by James Law-
son, having presented to Borden, the Sheriff
and ex officio Assessor and- Collector, the cer-
tificate of purchase, and requested a deed to
Lawson from the sheriff, the deed from Bor-
den, as Sheriff. &c., was made to Lawson.

The defendants next offered in evidence, un-
der the certificate of the Clerk of the Circuit
Court of Pulaski County, a copy from the
records of that court cf the acknowledgment
in open court, on the 18th of July, 1849, by
Borden, as late Sheriff and Collector of Pulaski
County, of the deed executed by him to Law-
son for the several parcels of land therein de-
scribed, including the land in controversy, ns
having been sold by the predecessor of said
Borden as Sheriff and Collector, under and by
virtue of a levy and distress made upon such
tracts of land to secure the payment of the
state and county taxes, and the penalty and
costs and charges due for the years 1824 and
1825.

The defendants also proved that Thomns
Newton, by a deed bearing date on the 2 ist of

831-348

SUFRBMB COUBT OF THS UHITBD StATBS.

Dae Tuuc,

May, 1846, assigned and conveyed to James
Lawson, in his lifetime, all the right, title, in-
terest and claim, in and to the lands purchased
by Newton of the Sheriff in the year 1824, and
embraced in the deed from Borden, Sheriff,
&c., to Lawson.

The defendants then offered the record, duly
certified, of the proceedings en the chancery
side of the Circuit Ck>urt of the County of
Pulaski, on the 20th day of February, 1860,
upon a petition in the name of James Lawson
in his lifetime, setting forth the several facts
and transactions recited in the deed from Bor-
den to Lawson, and also the execution and
recording of that deed; and further setting
forth that he, Lawson, after the time allowed
by law for the redemption of said lands, and
more than six months before the commence-
ment of the then present term of this court,
caused a notice stating the authority under
which said sheriff's sales took place, and also
contahiinff the same description of the lands
purchased as that given in said sheriff's deed,
and declaring the price at which said tracts
were respectively bargained, the nature of the
title by which the same are held, and calling
on all persons who could set up any right to
any part of said lands, in consequence of any
irregularity or illegality connected with said
sffles, to show cause at the first term of the cir-
cuit court of said county, six months after the
publication of said notice, being the present
term of the court, why the respective sales so
made should not be confirmed, pursuant to a
petition to t>e filed in this court for that pur-
pose, to be inserted and published in the At-
icansas State Democrat, a newspaper published
in Little Rock, for six weeks in succession, the
last insertion to be more than six months be-
fore the commencement of the present term of
this court, as by affidavit of the publisher, set-
ting forth a copy of such notice, with the date
of the first publication thereof, and the number
ot insertions sworn to and subscribed before a
Justice of the peace of said county, and prop-
erly authenticated and filed with said petition,
fully appears to the court, and concluding
with the decree of that court in the following
words:

*• Whereupon all and singular the allegations
made in said petition being by the production of
said deeds and due proofs of the publication of
said notice, proven and establishei to the satis-
faction of the court here, and no cause having
been shown against the prayer of said petition
by any person whomsoever, but the said ap-
plication being and remaining wholly unde-
fended—

*' Ii is therefore considered and adjudged
and decreed by the court here, that said sher-
iff's sales, and each of them, be, and the same
are hereby in all things confirmed, according
to the statute in such case made and provided;
and further, that this decree shall operate as a
oomplete bar against any and all persons here-
after claiming said lands, or any part thereof,
in consequence of any informality or illegality
in any of the proceedings aforesaid, and that
the title of each of said tracts of land be de-
creed and considered as hereby confirmed and
completed in said James Lawson and his h^eirs
and assigns forever; saving, however, to in-
fants, persons of unsound mind, imprisoned,

beyond the seas, or out of the Jurisdiction of
the United States, the right to appear and
contest the title to said lan&, within one year
after their disabilities may be removed. And
it is ordered that the petitioner pay the costs
thereof."

To the admisssion of this record, the plaintiff
in the circuit court objected, but the court
permitted it to be read in evidence. The deed
from Borden, Sheriff, to Lawson. of the 2d of
November, 1846, was also objected to by the
same party, but was allowed to be given in
evidence to the Jury.

Several prayers for instructions were pre-
sented, both by the plaintiff and the d^endants,
and decisions thereon were made by the court.
We shall consider the following only, as com-
prising the real merits of this controversy:

The objections urged against the admission
of the deed from the sheriff to Lawson were —

1st. That the deed and the certificate of its
admission to record bore upon their face un-
mistakable evidence of fraud. What those
clear marks of fraud upon the face of those
documents were, is not stated with sufficient
particularity, in order to a correct comprehen •
sion of their character. The court to whom
this objection was presented must have decided
upon an inspection of the papers (probably cor-
rectly); but whether correctly or otherwise,
this court cannot now inquire, in compliance
with assertions altogether vague, and pointing
to no specific vice in any one of those papers.
This first objection, therefore, to the admis-
sibility of the deed is of no force.

But the deed from Borden was further ob-
jected to, because, as it was alleged —

2d. That there was no valid proof of the
execution of such paper as a deed.

8. There was no proof of the authority of
the said William B. Borden to execute such
deed, or that he was, at the date of its execu-
tion or acknowledgment, collector of taxes in
and for said County of Pulaski.

4th. It was not accompanied by proof that
the said tract of land in controversy was either
assessed, or taxed, or advertised, or legally
sold, in the year 1824, for taxes, or that the
said Henry Armstrong, as such alleged sheriff,
assessor, and collector, in the year 1824. had
any authority to assess said tract of land for
taxation, or to sell it for the non-payment of
such taxes.

5 th. That such paper, purporting to be such
deed, was not admissible in evidence until it
should be first proved that all the material
steps required by law, preparatory to and in
the assessment and taxation of said tract of
land, and in the advertisement and sale thereof
in the year 1824, and all previous steps required
by law prior to the execution of such deed,
had been complied with, either by record evi-
dence or by evidence in pais.

These four objections are met and overcome,
first, by the language of the statutes of Ar-
kansas; and second, by the interpretation ft ven
of those Statutes by the r^upr^me Court oi that
State. By the law of Arkansas regulating con-
veyances {vide Digest of the Laws of 18&, by
English & Hempstead, p. 268, sec. 26), it is de-
clared that ''every deed or instrument of writ-
ing conveying or affecting real estate, which
shall be acknowledged or proved and certified

H9 U.S.

1808.

Thomas v. La.wbok.

881-848

as pnecribed by that Act, may, together with
the certificate of acknowledgment, be recorded
by the recorder of the county where the land
to be conveyed or affected thereby shall be
situate; and when so recorded, may be read in
evidence in any court in this State without
further proof of execution." Again, in the
same dic^st (pp. 888, 889, sec. 112, title Reve-
nue), it 18 declared, with respect to sales and
conveyances made by the sheriff and collector
for the nonpayment of taxes, that "the deed
so made by the Collector shall be acknowledged
and recorded as other conveyances of lands,
and shall vest in the grantee, his heirs or as.-
signs, a good and valid title, both in law and
equity; and shall be received in evidence in all
courts of this State as a good and valid title
in such grantee, his heirs or assigns, and shall
be evidence of the regularity and legality of the
fale of such lands." Again (p. 889, sec. 114),
it is provided, "that if any collector shall die
or be removed from office, or his term of service
expire, after selling any land for taxes, and
before m^ing ana executing a deed for the
same, the collector then in office shall make
and execute a deed to the purchaser of such
lands, in the same manner, and with the like
effect, as the officer making such sale would
have done."

By another provision of the Statute of Ar-
kansas, a like power to that previously men-
tioned as vested in the sheriff, with respect to
delinquent lands, is conferred upon the Auditor
of PudUc Accounts, and, in the exercise of that
power by the latter officer, the provisions of the
statute, both as to the acts to be performed,
and the consequences to ensue from those acts,
are substantially and almost literally indentical
with those relating to the proceedmgs by the
sheriff.

Thus (Dig., p. 898. sec. 141), it is enacted
that ** the Auditor shall execute, under his hand
and the seal of his office, and deliver to each
person purchasing lands or lots at such sale, a
deed or conveyance, in which he shall describe
the lands or lots sold, and the consideration
for which the same was sold, and shall con-
vey to l^e purchaser all the right, title, inter-
est, and claim, of the State thereto ;" and by
sec. 142, "the deed so made shall vest in the
grantee, his heirs or assigns, a good and valid
title, both in law and equity, and shall be re-
ceived in all the courts of this State as evidence
of a good and valid title in such grantee, his
heirs or assigns, and shall be evidence that all
thines required by law to be done to make a
TOOd and valid sale were done, both by the
GoUector and Auditor." «

In the interpretation of this provision in pari
materia, the Supreme Court of Arkansas, in
the case of Merrick A Fenno v. Huit, 15 Ark. ,
p. 888, say: "A more comprehensive provision
could hardly be found, and it might seem, at
first view, to make the tax title derived from
the Auditor, valid against all objections. But
that was not the design. The evil to be reme-
died was, that the entire burden of proof was
cast on the purchaser, to show that every
requisite of the law had been complied with,
and the deed of the officer was not even prima
fade evidence of the facts therein stated. The

Sineral and prevailing principle was. that to
vest the owner of land by a sale for taxes.

See 21 How.

every preliminaiy step must be shown to be in
conformity with the Statute ; that it was a naked
power, not coupled with an interest, and every
prerequisite to the exercise of that power must
precede it, and that the deed was not prima
fade evidence that these prerequsites had been
observed. The intention and scope of the
Statute were to change this rule so far as to
cast the onus probandi on the assailant of the
tax title, by making the deed evidence of the
title of the purchaser, subject to be overthrown
by proof of non compliance with the substantial
requisites of the law. Proof, then, that any
of the substantial requisites of the law had been
disregarded, or that the taxes have been paid,
no matter by whom, would be sufficient to de-
stroy the tax title, whether emanating from the
auditor or the collector. The deed of the audit-
or is not required to contain recitals. All that is
necessary is to describe the property sold, and
the consideration, and to convey to the pur-
chaser all the right, title, interest, and estate,
of the former owner, as well as all the right,
title, interest, and claim, of the State, to the
land."

The same exposition of the Statutes of Ar-
kansas, and of the policy and necessity in which
those Statutes have had their origin, is given
in the case of Pillow v. Roberts in this court,
reported in the 18th of How. , 472. The deed,
then, from the Sheriff and Collector, Borden, to
Lawson, was clearly prima fade evidence of
the assessment, taxation, and forfeiture of the
land; of the regularity of every proceeding
previously to the sale of the lana forfeited ; of
the competency of the officer making the sale
and conveyance; of the legal validity of the sale;
and cast upon the assailant of any of these pre-
requisites the burden of showing the absence
or defectiveness of any of them. And without
such a showing, that which was prima fade
proof will be taken as conclusive.

But every* question with respect to the as-
sessment 01 the lands in controversy, or the
non-payment of the taxes, or the regularity of
the proceedings of the sheriff and collector, in-
clusive of the execution and recording of the
deed from that officer, seems to 4iave l^n con-
cluded by the petition of the purchaser on the
chancery side of the Circuit Court of Pulaski
County, and the decree of confirmation pro-
nounced upon that petition as herein already
mentioned.

The provisions of the law by which this pe-
tition by the purchaser from the sheriff or
auditor of lands sold for the non-payment of
taxes, and by which the proceedings upon such
a petition, and the effect of a decree of confirm-
ation pronounced thereupon, are contained in
the Digest of the Laws, pp. 966, 967, under
the hei^ of Tax Titles, sections from one to six.
inclusive. By the section last mentioned (6th)
it is declared, that the judgment or decree con-
firming said sale shall operate as a complete bar
against any and all persons who may thereafter
claim said land in consequence of informality
or illegality in the proceenings, and the title to
said land shall be consided as confirmed and
complete in the purchaser thereof , his heirs and
assigns forever. The decree of the Circuit
Court of the County of Pulaski, before referred
to, expressly sets forth a compliance with every
requisite prescribed in the aforegoing six sec-

146-170

SUFBBICB OOUBT OW THB UlOTSD UtaTBA.

Dec. Tbbk,

tlons of the Btatate, including the notice by
publication calling on all persons to show any
objection to the purchase from the officer, in
consequence of Informality, irregularity or il-
legality connected with the sale of the lands;
the failure of any contestant to appear in obe-
dience to such notice, and the expiration of the
time limited in the saving reserved in behalf of
those of whom exception is made in the Stat-
ute.

Upon an inspection of the proceedings in the
court of Pulaski, the court below was of the
opinion that it constituted a valid title in the
defendant against the whole world and charged
the jury that " it devested the title of the plamt-
iff , and that since the rendition of said decree
she had no title to the said tract of land, unless
she haa, since the date of the said decree, ob-
tained title thereto from or under the said
James Lawson, or unless such decree was ob-
tained by fraud."

Of the effect of a decree of confirmation like
the one in this case, there exista no doubt un-
der the construction of the Statutes of Arkansas
by the Supreme court of that State, as declared
in the case of Ewm d Black v. BtreffvU, 5th
Ark. ,426. The court in that case held the decree
to be conclusive, although they thought it er-
roneous; yet, inasmuch as it had not been re-
yersed for error, they ruled that it could not be
collaterally impeached; and they say, in ex-
press terms, that had there been no deed from
the officer, in fact, the decree would have been
conclusive of the sufficiency of the evidence to
warrant it.

In the case of Parker v. Ovdrnum, in 18 How. .
140, chis court, commenting upon the Statute of
Arkansas, has said: "In case no one appears
to contest the regularity of the sale, the court
is re<][uired to confirm it on finding certain facts
to exist; bat if opposition is made, and it should
appear that the sale was made contrary to law,
it became the duty of the couU to annul it.
The Judgment or decree in favor of the grantee
in the d^ operates as a complete bar against
any and all persons who may thereafter claim
such land in concequence of any informality or
illegality in the proceedings. The Jurisdiction of
the court over the controversy is founded on the
presence of the property, and like a proceeding
in rem it becomes conclusive against the absent
claimant as well as the present contestant."

This interpretation of the Statutes of Ar-
kansas is fully coincident with that propounded
by the cases of Merrick db Fknno v. UuU, and
of Evane d Black v. PcrdfuU, already cited;
and sustain the correctness of the instructions
•f the circuit court as to the effect of the de-
cree of confirmation of the Circuit Court of Pu-
laski County.

A question was raised in the circuit court,
as to the effect of the five years* statutory limita-
tion upon the rights of the parties; as, for in
atance. whether that statute would begin to run
from the date of the deed of the sheriff or from
the period of the recording of that deed, or
whether it could operate at all upon a construc-
tive seisin effected by the sherifTs deed, or re-
quired, in order to give it effect, an actual
seisin by the purchaser from the sheriff. This
question we do not deem it necessary, or even
regular. In this case to discuss or determine. In
the first place, the rulings of the court below with

regard to it were in favor of the plaintiff in error,
and therefore can constitute no wrong or grator
men on his part. 'In the next place, we consider
that question embraced and concluded.or rather
excluded, by the proceedings in chancery against
the property, and the confirmation of the title
by the decree.

The judgment of the Circuit Court ie ajfirmad.

FREDERICK L. BARREDA and PHILIP
BARRED A, Plffe, in Er,,

BENJAMIN H. SILSBEE kt al.

(See 8. C, 21 How., 14»-170.)

Construction of contract for extra freight — decla-
rations of d^endanVn agents.when admissible —
what is proff of a^en fs authority— other char-
ters and parol evidence, when admissible to fix
price — parol etidenee to s/uno fraud.

By charter of a ship for tmnsportatlon of ffuaoo
from the Chincha Inlands to the tJ. 8., freiirht was
to be paid at the rate of $8ft per ton, and the ship
was to have the beni'flt of any advance In fr<>lg>hta
made by the charterers in the U. 8. before she fin-
ished loading at the Islands. Held, that the pUiintiffs
were entitled to an additional compensation under
this special clause, equul to the excess paid or con-
tracted to be paid to other parties.

The declarations and statements of airenta of de-
fendants, made at the time other chartens relied
upon by plalntllfs, were executed, were properly
admitted as evidence.

Such charters, after they were executed by the
owners, were forwarded to defendant^ and re-
ceived their signatures : these facts present strong
presumptive evidence of authority of the agv>nt8
fully warranting the court in submitting the ques-
tion to the Jury.

8uch parol evidence did not conflict in any man-
ner with the written contract.

Plaintiffs' rights beinir made to depend upon the
subsequent transacti«ms of defendants with third
parties, it was clearly proper to admit proof t*
show what those transactlona were.

For the purposes of any examination of the case
which it is competent for thisoourtto make under
the Constitution of the United States and the laws
of Congress, it must be assumed that the facts of
the case have been correctly found by the Jury.

Their finding is conclusive, unless a new trial la
awarded by the court in which the case is tried, or
in the appellate tribunal, for some error of law.

Parol testimony is always admissible, in matters
of contract, to show fraud.

Argued Dec, f4, 1858. Decided Jan. SI. 1SS9.

IN ERROR to the Circuit Court of the United
States for the District of Maryland.

This was an action of assumpsit brouf^ht ia
the court below, by the defendants in error,
to recover freight eai^ied by the ship Shirley on
a charter thereof, made to the plaintiffs in er-
ror, who are agents of the Peruvian Gtovera-
ment.

The trial in the court below reaulted in a
verdict and judgment for the plaintiffs, for the
sum of $80,044.62, with costs; whereupon the
defendants sued out this writ of error.

A further statement of the case appears in
the opinion of the court.

Messrs. John Nelson and S. T. W»llis»

for plaintiffs in error:

The clause in the charter-party sued upon,
by which the lieneflt of a possible advance in
guano freights within a fixed period, was given
to the owners of The Shirley, must be inter-

6aS U.S.

1898

BaJKBBDA Y. SiLfiBBB.

146-170

preted to refer ezclunvely to an advance in
freight which might be paid by the charterers
for voyages similar to that whidh The Shirley
was to perform for them, viz. : homeward voy-
ages from the Chincha Islands to Hampton
Roads or further north, and none other.
Oether v. Capper, 80 E. C. L.. 696.

2. The charter-parties offered in proof, to
show an advance under the stipulation in The
Shirley's charter, and which constitute the
only evidence in the case upon that point, tend-
ing to support the pretensions of the defend-
ants in error, are on their face for voyages of
a different character from that of The Shirley,
and afforded no evidence to maintain the ac-
tion.

3. Parol evidence was not admissible to affect
the construction of the subsequent charters in
question, or to show any intention or views of
the plaintiffs in error and th^ other contracting
parties in making them, because it is not pre-
tended, and there is no evidence professing to
show, that there was any outside contract of
understanding in reference to any one of them
varying or qualifying the written stipulations in
any way, or that any intentions or views of the
plaintiffs in error or of the other parties, were
embodied or carried out otherwise than in and
through the writings themselves, by which. and
which only, all pulies agreed to be and held
themselves bouna.

Tliis point is in conflict with the court's sec-
ond instruction,and is raised by the sixth prayer
of the plaintiffs in error.

ShanlUand v. The CorporaUan of Washington,
5 Pet., 894: Sprigg v. Bank of Mt Pleasant,
14 Pet., 200: Selden v. Meyre, 20 How., 609.

4. Even if parol evidence had been admissi-
ble at all under the circumstances stated in the
preceding point, the particular parol |>roof es-
pecially objected to by the plamtiffs in error,
was not because it consisted exclusively of
statements made by agents of the plaintiffs,
Dot only without authority, but in direct oppo-
sition to the written instructions, which con-
stituted their special and only authority. It
was the naked offer of the unauthorized' state-
ments of agents — made while negotiating con-
tracts which they were authorize to and did
negotiate — produced in evidence, neither to con-
tradict nor to qualify the written stipulations
ais^need on, nor to avoid the instruments them-
selves, but merely to show the existence of
fraudulent intentions.

This point is raised by the 1st exception of
the plaintiffs in error, and is in conflict with
the court's second instruction also.

2. Stark. Ev., 84: FinHie v. HastingsAO Yes.,
126. 127; Beiham v. Benson, 1 Gow., 45.

6. The imputation of fraud on the part of
the plaintiffs in error, was not only gra-
tuitous but unnecessary. The case of the
defendants in error could not be bettered by
showing that the Boston charters, with the aid
of paroltestimony, amounted to what was pat-
ent in the New York charters without it.
Hence the parol proof in controveray was as
superfluous as it was in opposition to what was
believed to be the established rules of evidence.

6. That even if the specific terms of the char-
ter-parlies in question could be overlooked or
explained or altered by parol, and it were com-
petent to treat them all as stipulating for a

See 31 How.

round voyage, out and home, for $80 per ton,
which is the broadest construction that could
be applied to them, they would still furnish no
proof of an advance in freight for a voyage
merely homeward, like The Shirley's, with the
privilege and benefit to the outward voyage
to the owners, instead of the freighters.

Messrs. Reverdy Johnson and Brown
A Bmnoy for defendants in error:

The defendants in error refer to the follow-
ing authorities:

1. Freight, In the general legal sense of the
term, means all rewaras, hire or compensation,
paid for the use of ships.

Pothier, JVaite Be Gharte-parte, n. 1 : Valin,
torn., 1, p. 639, cited in Abb. Ship., 5 Am. ed.,
marg. p. 405; 8 Kent, 219.

Freight is the reward which the law entitles
a person to recover, for bringing goods lawfully
upon a legal voyage.

Abb., 426;McCulloch, Com. Dig., "Freight";
BouvierLaw Die, "Freight."

2. Parol testimonv of the declarations and
statements of Nesmith and Brown, the agents
of F. Barreda & Bro.. made by them in re-
spect to the charter-parties which they were ne-
gotiating prior to and at the time of the execu-
tion thereof, is admissible and competent ev-
idence to explain the meaning and purpose of
imusual provisions to inform the ship ownere
whether the plaintiffs in error meant to avail
themselves of privileges reserved in the char-
ters, or would waive them, as well as to show
the true character of the transaction, that there
was in fact a rise in freights to the benefit of
which the defendants in error was entitled, and
that it was the object of the plaintiffs in error
to disguise and conceal such rise by the form
of the charter-parties executed by them.

U. 8. V. Gooding, 12 Wheat., 469. 470; Amer,
Fur Co. V. U. 8., 2 Pet., 864; 8tokesv. 8aUon-
staU, 18 Pet., 188-186, 194; Wood v. U. 8.,
16 Pet., 860: We§teot v. Bradford, 4 Wash. C.
C, 600; Haynes v. RuUer, 24 Pick.. 246; nam-
matt V. Emerson, 27 Me., 382, 885; Franklin
Bankv. 8te%Dard, 87 Me., 524; Wilson v. Hart,
7 Taunt., 808; Crocker v. Lewis, 8 Sumn., 1,
6-10; la&igi v. Brovon, 17 How.. 188; 1
Greenl. Ev., sec. 285; 2 Cowen's Phil. Ev. 8d
Amer. ed., 854-869; note 290, p. 587; 2 Stark.
Ev. 7th Amer. ed., 765. 766, 790. 791; Gres.
Eq. Ev., 288; Pow. Ev.. 144. 147; 96 Law Li-
brarv, 101, 102; DutaU v. Medtart, 4 H. <& J.,
15; J^er v. Etnyre, 2 Gill.. 160; Henderson v.
Maphew, 2 Gill., 409 ; The U. 8. v. TheAtnistad,
15 Pet., 594.

Mr. Justice Clifford delivered the opinion
of the court:

This case comes before the court upon a
writ of error to the Circidt Court of the United
States for the District of Maryland. It is an
action of indebitatus assumpsit, and was brought
in the court below by the defendants in error,
who were the original plaintiffs, to recover the
freight earned by the Ship Shirley on a chailer
of the ship made by the plaintiffs to the origi-
nal defendants for the transportation of ffuano
from the Chincha Islands to the United States.
At the date of the charter-party, the defend-
ants were the agents of the Peruvian Govem-
ernment, and, as such, had been for some time
in the habit of chartering vessels to bring

146-170

BUFBBMK COUKT OF THB UmTBD StaTBS.

Dbc. Tubm,

guRDO to the United States for sale. Its expor-
tation from the islands is a (Government mo-
nopoly, in which none except those employed
by the Government are permitted to engage,
and the defendants are the sole agents of that
Government in the United States. They re-
side in Baltimore, and have agents in New
York and Boston, duly authorized to negotiate
for vessels, and after the charters are signed bv
the owners, to transmit them to the defend-
ants for their approval and signature. Their
agents in Boston negotiated the charter of The
Shirley, and, after it was executed in behalf of
the owners, it was accordingly transmitted
and signed by the defendants. It is dated
Boston, April 11, 1854. and recites, among
other things, that The Shirley was then lying
at New York, and that she was to proceed to
Callao, from Australia, where she was then
bound, and from thence with all convenient
dispatch to the Chincha Islands, to take in her
cargo of guano. She was to be at Callao ready
to load in the course of January and February,
1855, or sooner, and ninetv running days were
allowed for loading. After completing her
loading, she was to proceed direct to Hampton
Roads, her place of destination, to receive or-
ders f roD^ the defendants or their agents to dis-
charge at any safe port not south of Hampton
Roads or north of Cape Ann. Freight was to
be paid at the rate of $25 per ton, custom-
house weight, and the ship was to have
the benefit of any advance in the guano freights
made by the charterers in the United States
before she finished loading at the Islands.
She sailed from New York the 1st of May,

1854, with a full cargo on owners' account,
which she discharged at Australia, and sailed
thence, in pursuance of her charter, to Callao
and the Chincha Islands. Her cargo of guano
was loaded between the first day of January
and the 9th day of March, 1855, and on the
following day she sailed for Callao, and thence
to her place of destination for*orders. On her
arrival at Hampton Roads^ she received orders
to eo to Baltimore, which she accordingly did,
and was there unloaded between the 1st and
the 25th day of July, 1855, having brought
home fourteen hundred and fifty- nine tons
of guano. Some correspondence, however,
had taken place between the parties before
The Shirley arrived. On the 8th day of June,

1855, the plaintiffs wrote to the defendants, re-
ferring to that clause in the charter providing
for an advance, and suggesting that they had
been induced to make the charter at the solici-
tation of their agents, upon the assurance that
they should receive every advantage from any
rise in freight, and expressing their astonish-
ment at learning that they did not intend to
pay more than at the rate of $25 per ton, and
signifying at the same time their willingness to
listen to any fair proposition the defendants
had to make. To that letter the defendants re-
plied, under date of the 11th of June, 1855, to
the effect that the guano freights had remained
at the same rates since The Shirley was char-
tered ; admitting, however, that they had since
taken up certain vessels with the privilege of
using them outwards, and saying that they had
done so in several instances, and that in such
cases they had allowed the vessels a compensa-
tion for that use, but that such additional com-

pensation had nothing to do with the rates of
guano, as would appear by referring to those
charters. Other correspondence took place be-
tween the parties, or their counsel, which it i»
not necessary to notice at the present time.
After the cargo of The Shirley was discharged,
the defendants rendered an account of the
vovage to the plaintiffs, showing a balance in
their favor of $21,948.89, calculating the freight
at $25 per ton, without any allowance for a
rise under the advance clause of the charter,
which was not satisfactory to the plaintiffs.
They claimed a further sum under the advance
clause, equal to $5 per ton upon the wholQ
freight brought home. Seven other vessels,
were charter^ by the defendants between the
1 1th day of April and the 27th day of May.
1854, for the transportation of guano from the
Chincha Islands to the UnitedStates. All of
those charters werf introduced by the plaintiffs,
subject to objection, and the^^ are substantially
the same with that of The Shirley, and contsio
a similar clause, giving the vessels the benefit
of a subsequent rise in the guano freights.
On the 1st day of June, 1854, after these
charters were executed, the defendants wrote
to their agents in New York and Boston, in-
closing a pro forma charter party for vessels out
and home, and authorized and instructed them
to take up as many vessels as they oould under
such charters, without allowing the least de-
viation from its terms, and directing them in the
same communications to keep former rates,
without benefit of advance, for home charters.
It recites that the vessel taken up shall proceed
to Callao, from a port in the Indian or I^ciflc
oceans, ** where she is at present bound," and
thence with all convenient dispatch to the
Chincha Islands to take in her cargo, and that
the vessel shall be ready to load in the course
of January, 1855, and shall thence proceed to
Hampton Roads for orders and to discharge,
as is provided in the charter of The Shirley.
Freight was to be paid on charters conforming
to those instructions at the rate of $25 per ton,
custom-house weight, and the charters were to
contain the following stipulation:

'* It is further agreed, that within one week
from the date thereof, the owners of the vessel
may, if they see fit. elect to dispatch her direct to
Callao and the Chincha Islands, to load, aa
hereinbefore provided ; and in case the owners
shall so elect, the charterers shall be entitled
to all her earnings for such outward voyage,
and shall further have the privilege of shipping-
by her'Buch outward cargo, not exceeding two
hundred tons, as they may desire, provided they
shall do so within ten days after the ownera
shall have announced their election. The
charterers, on the arrival of the vessel at the
home port, to pay, in full satisfaction for such
earnings and privilege, and of all outward
freight, such gross sum as shall be equivalent
to $5 per ton on the return cargo delivered.'*

Twenty five vessels were sumequently taken
up under charter-parties substant&Uy conform-
ing to that stipulation, all bearing date prior
to the 80th day of July following that instruc-
tion. Sixteen were negotiated by the agents
of the defendants residing in New York, five
by the defendants themselves, and the remain-
ing four by their agents in Boston. In many
of these charters, the clause prescribing the

W U. 8.

1898.

BaBRBDA y. BlLBBBB.

146^170

port from which the vessel was to proceed to
GpJlao, as contamed in the pro forma charter-
purty, was omitted, and another substituted in
Its place, as *' from where she was bound." or
"from Amsterdam, where bound", or from
New York direct to Callao. These deviations,
however, from the form of a charter furnished
by the defendants must have been approved by
them, as all the charters subsequently^ nego-
tiated by their agents were duly transmitted to
BcUtimore, and received their signatures, before
they went into operation. Some other devi-
ations from the pro forma charter-party, of
minor importance, were introduced into one or
more of these charters, which it is not impor-
tant to notice in this inveslieation, as they all
contained the stipulation above mentioned,
which is the principal subject of controversy in
tbis suit, under that stipulation, the owner
might elect, within a week from the date of
the charter party, to dispatch the vessel direct
to C^ao and the Chincha Islands; and in that
event, the charterers had the privilege to ship
the outward cargo for their own beneAt, not
exceeding two hundred tons, provided they
elected so to do within ten days after the owner
announced his decision to send the vessel
direct ; and in case the owner so elected and sent
the vessel, no matter whether the charterers
freighted her out or not, the owner was entitled
in all events to demand $5 per ton on the re-
turn cargo of foano, in addition to the $25
as^reed to be paid in the general clause of the
charter-party already stated.

Whether the vessel carried out much or little
frelffht, or none at all, was entirely immaterial
to ue owner, so far as respected the earnings
of the vessel, as the additional compensation in
any event was to be estimated and ascertained.
not upon the outward freight, but upon the re-
turn cargo; and it made no difference in re-
spect to time, as the owner contracted that the
vessel, whether freighted or not, should be at
Callao, ready to load in the course of January,
under the penalty of $12,000.

That stipulation, whatever mij^ht have been
its object, resulted in no matenal pecuniary
advantage to the defendants. They did not f ur-
niah any outward cargo, except in a single in-
stance, and then only to a small amount, con-
sisting of seven or eight boxes of eigars. In
another instance, they offered to ship two iron
boilers for Callao, but the owners refused to
talte them as deck load, alleging that it would
be dangerous, and a dispute led to a cancella-
tion of the contract by mutual consent. Except
in those two cases, the defendants never at-
tempted to avail themselves of the benefits se-
cured by that provision, either by furnishing
the freight directly or by advertising the ves-
sels. Their counsel insist that that the addi-
tional compensation was paid for the privilege
thus secured; and that it makes no difference
whether it was exercised or not, inasmuch as
they had the right to avail themselves of it if
they saw fit, and found it to be for their ad van-
tage. All or nearly all of the vessels pro-
ceeded directly from the United States, carrying
out no freight for the defendants, and on their
return were paid the additional $5 for every
ton of guano brought home. How much that
additional compensation amounted to does not
appear, nor are there any data in the record

See 31 How.

from which it can be definitely ascertained.
According to the charter of The Shirley, she
was a ship of nine hundred and ten tons bur-
den, and it appears that she brought home four-
teen hundred and fifty-nine tons of guano,
reckoned at custom house weight. Eleven of
the charters of other vessels give their tonage.
showing that their measurement, on an average
is a fraction more than eight hundred tons.
Assuming that the average of the eleven,
whose tonage is given, is the true average of
the whole number chartered containing that
provision, and that each brought home cargo
in proportion to The Shirley, it would show
that the amount of the additional compensation
allowed to those vessels under that clause could
nbt have been much less than $150,000. What-
ever the sum was, whether more or less than
the amount supposed, it must be assumed.onthe
theory of the defendants, that it was allowed
and paid by the charterers, in consideration
of the privilege secured to load their own ves-
sels outward lor their own benefit, which priv-
ilege the case shows they never exercised to an
extent to enable them to realize therefrom mere
than the sum of $50. It was insisted by the
plaintiffs in the court below that this stipula-
tion was inserted in those charters, as a device
to avoid the effect of the advance clause iq the
charter of The Shirley and other vessels, which
had gone out under similar charters, and that
the real contract was one to give $80 per ton for
the transportation of the guano to the United
States, and consequently showed that the char-
terers, within the period specified, had made
an advance in the guano freights equal to the
amount of such additional compensation.

They also offered parol proof in support of
their view of these transactions, which was re-
ceived by the court, subject to objection.

Such brief portions only of the testimony as
are necessary to a proper understanding of the le-
gal questions to be decided will here be repro-
duced.

In respect to the vessels whose charters
required that they should proceed from some
port in the Indian or Pacific Ocean, the plaint-
iffs proved that the vessels proceeded direct to
Callao, and that the owners, at the time the
charters were made, did not and had not
contemplated any such indirect voyage, and
elected, in the act of executing the charters, to
send the vessels direct, and, in some instances,
were told immediately, by the agents of the de-
fendants, who negotiated the charters, that
they might proceed at once, as there was no
outward cargo for them. Those charters from
which the abDve clause had been stricken out
still contained the stipulation in question, allow-
ing the election to the owners as to the course
of the voyage; and in such cases, the vessels
went out in ballast direct to Callao, and on
their return from Chincha Islands with a cargo
of guano were paid the additional compensa-
tion.

Another class of testimonv was to the effect
that the agents of the defendants in New York
and Boston offered $80 per ton for the charter
of the vessels to go direct, and, after the offers
were accepted by the owners, that the char-
ters were drawn up, containing this stipulation;
and that the owners, when the charters were
presented for execution, inquired why they

8»

146-170

BUPBBMB OOUBT OF THB UniTIBD StATBS.

Dbc. Tbbm»

were so drawn, and were told that it was be-
cause they had made charter-parties at $25 per
ton, and consequently did not wifth that these
charters should show more than that sum; and
in one instance, the answer to the inquiry was,
that they did not wish these charters to conflict
with former charter-parties, which provided
for a freight of $25 per ton, with the beneflt of
a rise. These declarations of the agents of the
defendants were proved by the owners of the
vessels who made the charters. It was proved
by the defendants that their agents never had
any authority in respect to such charters, ex-
cept what was conferred by the letters of in-
struction of the 1st of June, 1854; and those
agents, upon being called as witnesses, denied
that they had ever made the declarations as-
scribed to them by the witnesses called by the
plaintiffs.

Further explanatory and rebutting testimon^^
was introduced by the defendants; but, as it
does not give rise to any le^l question for the
consideration of the court, it is omitted.

After the testimony was concluded, the
counsel of the defendants requested the court
to exclude from the consideration of the jury
all the decUrations and statements of those
agents given in evidence by the plaintiffs, re*
spec^ng the terms, conditions, or purposes, of
the charter-parties negotiated by them, vairtng
from the authority and powers confirmed on
ihem by their written instructions; which the
court refused to do, so far as regarded the dec-
larations and statements made at the time the
charters were executed, and ruled and deter-
mined that all such declarations and statements
were admissible and competent evidence. To
which refusal and ruling the defendants ex-
cepted, and their exception was allowed by the
court.

Prayers for instructions were made by both
parties — ^flrst by the plaintiffs, and then by the
defendants. Those presented by the defend-
ants were made the bubject of exception.
They are eight in number, including the one
embraced in the third bill of exceptions: but
inasmuch as we have come to the conclusion
that the instructions given by the court cover
the whole controversy between the parties, they
will not be specifically examined; and for the
further reason, that their separate consideration
would be tedious and unprofitable.

The instructions given by the court are to
the effect that, in addition to the balance
proved on the account rendered, ** the plaint-
iffs are entitled to recover such further sum, if
any, aa the jury may find to have lieen the ad-
vance on the freights agreed to be paid by the
defendants to any one for bringing guano from
the Chincha Islands to the United States in char-
ters executed here between the 1 1 ih day of April,
1854, and the day the jury shall find The Shirely
finished loading at the Chincha Islands.

2. '*That in ascertaining whetlier any con-
tract for advanced freight was made, the jury
are not confined to the consideration alone of
the charter-parties executed after the 1 1th day
of April, 1864, but are to conbider them in con-
nection with all the evidence in the case; and
if they find that the real contract, in some one
or more of the charter-parties, was a contract
to brine guano here and deliver it at $80 per
ton, and that the five-dollar clause was added

to avoid any responsibility under the advance
clause in the charter of The ^hirley, then the
$5 advance is an advance freight, within tfle
'moaning of the first instruction.

Under these instructions, the jury returned a
verdict for the plaintiffs 'in the sum of $30,-
044.62; whereupon, tne defendants brought a
writ of error to this court.

1. They now insist, among other things, to
the effect that the advance clause in the charter-
party of The Shirley must lie interpreted to re-
fer only to homeward voyages from the Chin*
cha Islands to the United' States.

2. That the charter-parties introduced by the
plaintiffs to show an advance in the giiano
freights are on their face for voyages of a differ-
ent chhracter from that of The Shirley, and
afforded no evidence to maintain the action.

8. That the parol evidence introduced by the
plaintiffs was not admissible, and should have
been rejected.

4. That even if the parol evidence were ad-
missible, and it were competent to treat the char-
ters under consideration as stipulations for a
round voyage out and home, they would still
furnish no evidence of an advance in the guano
freights over the charter of The Shirley, unless
it were shown that the earnings of The Shirley
out, and the $25 per ton home, were less than
the $80 per ton stipulated to be paid under
that construction of these charters.

I. All of these propositions except one in-
volve, directly or indirectly, the construction of
the advance clause in the charter of The Shir-
ley. Under that clause. The Shirley was to
have the benefit Of any advance in the guano
freights made by the charterers in the Unit^
States, before she finished loading at the Iwlanda.
She was chartered on the 11th day of April,
1854: and finished loading on the 8th day of
March, 1 855 ; and consequently her owners were
entitled, by the express words of the contract,
to claim the beneflt of any advance in such
freights made by the defendants in the United
States between those dates.

Such an advance in guano freights could only
be made by the defendantit, as they w^ere the
only persons in the United States who were au-
thorized by their government to contract for its
transportation. They could raise the price of
transportation or reduce it, if the owners of
vessels would accept their terms; and if not,
they could refuse to contract; and if no con-
tracts for an advance were made by them within
the period ppe6ifled in the charier of The Shir-
ley, then her owners would have no claim for
additional compensation. Their right to such
compensation was not referred to the state of the
market, but to the subsequent contracts made
by the defendants for the transpor*Ation of
guano from the Chincha Islands to the United
States. Freights in general might rise ever so
much, and it would not beneflt the plaintiffs
unless the defendants yielded to ita influence,
and made contracts to give higher rates for the
transporiation of guano. They might engage
in any other branch of commerce, and give
what rates of freight they pleased, and yet if
they did not make any advance in the guano
freights in the United states, it would not con-
fer any beneflt upon the plaintiffs. Any other
advance in freights, however great and by
whomsoever md^e, were not to be taken into

W U.&

1858.

BaABBDA Y. SIL8BBB.

146-170

aoooant in determininff the question whether the
plaintiffs were entitled to additional compensa-
tion. In order to avail the plaintiffs in that be-
half, it must be an advance made by the de-
fendants, and one paid, or agreed to be paid, as
the price for the transportation of guano to the
United States; and it must appear that the con-
tract for such payment was made within the
period specified in that clause of the charter of
The Shirley. Looking, therefore, to the plain
import of the language of the parties, and ap-
plying that language to the subject matter of
the contract, as described in the contract itself,
it is clear that the word " freight," as qualified
by the word ** guano," was used in a special
aenae.and refcrssolely to the price paid,or agreed
to be paid, by the defendants, within the pre-
scribed time for the transportation of guano
from the Chincha Islands to the United States.
According to the terms of the contract, the
parties agreed that the subsequent transactions
of the defendants, in the same trade, should fur-
nish and constitute the standard or criterion by
which their rights and duties towards each other
C^rowtng out of that clause in the charter-party
should be ascertained and determined. Their
sumement was to the effect that the plaint-
ins contracted unconditionally to perform the
service mentioned, for which the^ were, in all
eveDts,to receive the sum specified in the general
clause of the charter party; and in case the de-
fendants paid or contracted to pay other persons
a mater sum for the like service "before The
Shirley finished loading, then the plaintiffs were
entillra to an additional compensation under
this special clause, equal to the excess so paid
or contracted to be paid to such other parties.
They chartered their vessel early in the season,
as appears from the dat^ of the charter-party.
and it may fairly be inferred from the nature of
the transaction and the surrounding circum-
stances, independently of the oorrespendence,
that some such stipulation was regarded as
necxsMiry to protect their interests in the con-
tlogency of a rise in freights as the season ad*
Tsnced. Such contingent agreements are of
fnsqtient occurrence between merchants and
ship owners, and are entitled to receive a liberal
interpretation,as they are in f urtheranceof trade
sod equal justice between the parties. They
arc, perhaps, more frequently baaed upon the
future state of the markets, and not, as in this
cmse, upon the transactions of the merchant in
the particular trade. Parlies, however, have
the right to select what criterion they please:
and where their contracts are fairly made, they
must receive a reasonablercoustruction, so as to
carry their intention into effect, and In general
that intention roust be gathered from the lan-
^age employed, the surrounding circum-
stances, and the subject matter. Our attention
lias lieen drawn to the case of Oether v. Capper^
80 Eng. C. L., 606. as asserting a contrary doc
trine. On a careful examination of the facts of
that case.and the opinions of the judges, we have
come to the conclusion that it is not opposed to
the views here expressed. It was an action for
freight upon a charter-party. Under the gen-
era) clause, a given rate of freight was to be
paid in all events, as in this caf<e: and it con-
tained a special clause, which stipulated that the
plaintiff *' was to receive the highest freight
which he could prove to have been paid for ships

See 91 How.

on the same voyage, when the vessel passed
Elsinore." At the trial, the plaintiff was un-
able to prove that any other vessel had made the
voyage referred to in the charter- parly. Fail-
ing in that attempt, he then offered proof that
a higher rate had been paid for vessels about
that time from Lundswall, or an adjacent port,
to London, which is a very different voyage.
Whereupon a verdict was taken for the plaint-
iff, reserving leave to the defendant to move to
enter a verdict in his favor, or to reduce the
damages, an the court should think fit. A rule
to show cause was accordingly granted, and
after argument it was made absolute. Separate
opinions were given on the occasion by the
judges, to the effect that the owner could not
entitle himself to the additional compensation
by proving that other vessels had been chartered
at higher rates from Lundswall to London, that
being a different voyage, and not within the
fair intendment of the charter-party. Every
one of the judges present placed the decision ex-
pressly upon the words of the charter-party,
and the failure of the plaintiff to bring hu case
within their Intendment. His right to addi-
tional compensation was made to depend, bv
the express words of the contract, upon hu
being able to prove that other vessels at the
time specified received or were to receive higher
rates of freight for the same voyage. He failed
to exhibit tne proof, and, of course, was not
entitled to recover. His contract prescribed the
criterion by which his claim to aoditional com-
pensation was to be ascertained and determined,
and he had no right to go out of the contract
and select a new standara, to which the other
contracting party had not consented. It is far
otherwise with the plaintiffs in the case under
consideration. Their case rests upon some-
what different grounds. They have proved the
state of facts on which their right to recover
depends. According to the verdict of the jury,
and the instructions of the court, their case is
brought within the legal intendment of the
contract,. 'leaving nothing for the ooi^ideration
of this court, except the legal questions pre-
sented in the bills of exception. Their ship
was to have the benefit of any advance in the
guano freight made by the charterers in the
United States before she finished loading. They
contracted to bring guano from the Chincha
Islands to the United States for a given rate per
ton, and the defendants stipulated to pay that
rate, and if their psid or contracted to pay other
vessels a higher rate before The Shirley finished
loading, then they agreed to give the plaintiffs
an additional compensation equal to that ex-
cess; and for that excess of rate per ton the
plaintiffs were entitled to recover, together with
the balance of the account rendered, which was
admitted to be correct by the defendants. These
suggestions lead necessarily to the conclusion
that there is no error in the charge of the Cir-
cuit Court, so far as respects the construction
of the contract, as the instruction In that par-
ticular was in strict conformity to the views
here expressed. It was to the effect that if the
jury found that the defendants had agreed to
pay others more than $25 per ton for bringing
guano from the Chincha Islands to the United
States under charter-parties executed here be-
tween the dates before mentioned, then they
were authorized to find a verdict in favor of the

14^170

SUFRKlfB COUBT OV THB UHITBD StATBS.

Dbc. Tbhm,

plaintiffs for that excess. All of the charters
relied on by the plaintiffs as tending to show
that such was the fact, were substantially of the
same character, so that if one had that tendency,
then all had, and that was conceded in the
argument, and must have been so understood
by the jury.

II. In the next place, it is insisted that the
declarations and statements of the agents of the
defendants, made at the time those charters
were executed, were improperly admitted as
evidence, and two grounds are assumed in sup-
port of the proposition. First, that they were
made without authority, and therefore were
not admissible to affect the interests of the de-
fendants; and second, that they were admitted
in violation of the well-known rule that parol
evidence is not admissible to explain, vary or
contradict a written instrument. AH such
declarations and statements made subsequently
to the execution of the charters were properly
ruled out and excluded from the consideration
of the Jury.

1. Some brief reference to the facts of the
case becomes necessary, in order to test the
correctness of the first ground assumed under
this last proposition. Full authority had been
conferred upon those agents to negotiate for
the vessels whose charters were introduced by
the plaintiffs. Those declarations and state-
ments were made by their agents in respect to
the subjec^matt^r of the negotiation, and at
the time the charters were presented to the
owners of the vessels for execution. After
they were executed by the owners, they were
forwarded to the defendants and received their
signatures, and every assurance given by the
agents to the owners of the vessels was subse-
quently made good by the defendants. They
were told there was no outward cargo for them
and that they might proceed immediately; and
they were allowed to do so, without objection
or remonstrance. The vessels carried out no
freight, and, on their return, the owners were

Said $30 per ton on the return cargo, without
esitatiou or complaint. Accompanying those
explanations were others to the effect that the
stipulation in question had been inserted in the
charters, so that they might not conflict with
those previously made providing for a rise in
freight; and the circumstances rail to disclose
any other substantial purpose for which it was
done.

Parties do not usually contraf^ heavy pecun-
iary obligations without some object in view ;
and as no substantial one is disclosed, except
the one assigned by the plaintiffs, it is impos-
sible to say, as matter of law, that the charters
in quesUon and the surrounding circumstances
had no tendency to maintain the issue for the
plaintiffs. Where the fact of agency has been
proved, says Mr. Starkie, either expressly or-
presumptively, the act of the agent, co-exten-
sive with the authority, is the act of the princi-
pal, whose mere instrument he is, and then,
whatever the agent b&jb, within the ccope of
his authority, the principal says; and evidence
may be given of such acts and declarations, as
if they had been actually done and made by
the principal himself. That principle was di-
rectly sanctioned by this court in United States
V. Qooding, 12 Wheat., 470. where the views
of the author, as above quoted, were cited and

approved. 2 Stark. £v.. 45. Whatever the
agent does in the lawful prosecution of the
business intrusted to him by the principal, is
the act of the principal; and there, says Mr.
Greenleaf, his representations, declarations and
admissions, respecting the subject-matter, will
also bind him, if miule at the same time, and
constituting a part of the res regestas, and they
are of the nature of original evidence, and not
hearsay; and Judge Story, in his valuable trea-
tise on the liaw of Agency, maintains the same
doctrine. 1 Greenl. £v. , 85 ; 113 Story on Ag. ,
sec. 184. Acts and declarations of an agent
are admissible under such dircumstances, upon
the ground that, whatever an agent does or
says in reference to the business in which he ia
at the time employed, and within the scope of
his authority, is done or said by the principal,
and consequently may be proved in like man-
ner as if the evidence applied personally to the
principal. American Fur Go. v. The United
States, 2 Pet., 864. On the whole case, we are
of the opinion that the evidence of original au-
thority in the agents was suffident to warrant
the court in submitting their declarations and
statements to the jury.

In the same connection, it was also denied
at the argument that there is any sufficient evi-
dence in the case to show that the agents of
the defendants had any authority to make de-
viations from the iwvjWma charter-party fur-
nished to them on the 1st day of June, 1854.
A recurrence to the evidence, however, will
show that the suggestions are not well founded.
They commenced negotiating for vessels under
those instructions shortly after they were re-
ceived, and continued the business till nearly
the close of July. All the charters, after they
were executed by the owners, were forwarded
to the defendants, and received their signa-
tures. One bears date as early as the 5th day
of June, and others as late as the 29th day of
July, showing that they were approved as they
were forwarded, and at different times. These
facts present strong presumptive evidence of
authority, fully warranting the court in sub-
mitting the question to the jury. *

2. The second ground assumed by the de-
fendants, under this proposition, is, that the
declarations and statements of their agents
ought to have been excluded, for the reason
that parol evidence is not admissible to explain,
vary, or contradict, a written contract. That
principle, as a general rule applicable to parlies
and privies, ana their representatives and those
claiming under them, is undeniable, and is not
disputed by the coucnsel of the plaintiffs. They
contended, however, in the court below, and
still insist, that the right of the plaintiffs to de-
mand additional compensation in this case was
made to depend, by the express words of the
contract, upon the subsequent transactions of
the defendants in the same trade, and that the
stipulation in the subsequent charters is so
framed that it covers up and conceals the real
nature of the contracts between the parties.
They went farther in the court below, and still
insist that the real contract was one to pay fSO
per ton to bringguanofrom the Chincha Islands
to the United States, and that the stipulation
was framed in the form in which it appears,
graduating $5 on the outward and (25 on the
home voyage, for the express purpose of reliev-
es U. 8.

1858.

BilHRXDA ▼. SlLBBBB.

146-170

infc the defendants from the responsibility
which they had incurred to the plaintiffs, under
the charter of The Shirley, and the jury have
found all these alleged facts in favor of the
plaintiffs. Whether the Jury were warranted
in so finding or not, is not a question for an ap-
pellate tribunal. That question cannot be re-
examined by this court. For the purpose of
any examination of the case which it is compe-
tent for this court to make under the Constitu-
tion of the United States and the laws of Con-
gress, it must be assumed that the facts of the
case have been correctly found by thejury. Re-
peated decisions of this court have affirmed the
doctrine, which is but a repetition of the con-
stitutional provision upon the subject, that no
fact tried by a jury shall be otherwise re-exam*
inable in any court of the United States than
according to the rules of the common law, and
it is well known that the onl^ modes known to
the common hiw of re-examming the facts of a
case, after they have been found by a jury, are
the granting of a new trial by the court where
the issue was tried, or to which the record was
properly returnable, or by the award of a venire
jfadae de now bv an appellate court, for some
error of law which intervened in the proceed-
ings.

Farmme ▼. Be^finrd et <U„ 8 Pet.. 447; U. 8,
▼. Kinif et al., 7 How., 845: PenkaUmo v.
IkHMe, 8 Dall.. 102; IT, 8, v. BUaeon, 16 Pet.,
^1 ; PhiOipe v. Preeton, 0 How. , 289.

Whether the evidence, when offered, is ad-
missible, is a question for the court; but when
admitted, the question whether it is sufficient
or not is for the Jury, and it is their province
to draw from it all such inferences and con-
clusions as it conduces to prove, and which, in
their Judgment, it does prove; and their finding
is conclusive, unless a new trial is awarded by
the court in which the case is tried, or in the
appellate tribunal, for some error of law.
Outded by these principles, it must be assumed,
in the further examination of this question,
tliat the facta are as they have been found to
be by the jury. It then appears that the real
contract in these charters was one to pay $80

EiT ton for bringing guano from the Chincha
lands to the umted States, and that the
stipulation in question was inserted in the
charters to cover up and conceal the real nat-
ure of the contract, in order to enable the de-
fendants to relieve themselves from the respon-
sibility which they had incurred in their previous
contract with the plaintiffs; and the question
lA, whether the parol evidence wasproperly
admitted to prove those facts. Wlien the
plaintiffs offered to prove those facts in the
court below, the question was then presented
to the circuit court precisely as it is here
stated. Evidence, when offered at the trial,
must be assumed to exist, and to be true, for the
purpose of determining the question of its ad-
missibility. Proof, such as was offered and
received in this case, could only be rejected
upon one of two grounds — first, that the evi-
dence of the facts was not admissible; and
second, that if the facts were proved, they
would have no tendency to maintain the ac-
tion. That they would maintain the action if
proved, no one can doubt; so that fhe only
question is, whether they were admissible.
One further explanation is necessary, in order

See 21 How.

to present the question in its true light. It is
not pretended that the parol evidence conflicts
in any manner with the written contract on
which the suit was brought. On the contrary,
the objection is directed solely to its effect upon
the charter-parties subsequently executed by
the defendants with the owners of the other
vessels. Those charters were introduced by ^he
plaintiffs as evidence in the cause, to show
their right to recover. They also relied on
the cireumstances attending the transactions,
and the declarations and statements of the
agents who negotated.them, and the subsequent
conduct of the defendants in respect to the same
subject matter. At the trial, the charters were
submitted to the jury as evidence, and the jury
were told, in effect, that they were not confined
to the charters, alone, but were at liberty to
consider them in connection with all the other
evidence in the case, in order to ascertain
what the real contracts were between those
parties.

Where the effect of a Written agreement col-
laterally introduced as evidence, as in this case,
depenos, not merely on the construction and
meaning of the instrument, but upon extrinsic
facts and cireumstances, the inferences of fact
to be drawn from it must be left to the jury.
It was so held by this court in EtHng v. Tne
Bank of the United 8taU$, 11 Wheat., 75, and
we think the principle is correct. In that case,
the testimony consisted of various communi-
cations and reports made to the Bank, of their
own transactions, and of the admissions of the
parties or their agents, and it was insistejd on
the part of the Bank, tliat the jury were not at
liberty to draw inferences of fact from the
written evidence; to which objection, Marshall,
Ch, J., replied, that "were the fact as alleged,
and were it true that all the testimony is
in writing, the consequence drawn from it
cannot be admitted." Other, cases have been
decided b^ this court, applying the same doc-
trine as in lasigi v. Brown, 17 How., 183.
That was an action brought to recover damages
against the defendant for a false representation
respecting the pecuniary standing of a third
party, whereby the plaintiff had been induced
to sell goods, and had incurred loss. Letters
were introduced, and facts and cireumstances
connected with them proved; and this court
held that it was for the jury to say, after ex-
amining the letters in connection with the
facts and cireumstances, whether they were
calculated to inspire,, and did inspire, a false
confidence in the pecuniary responsibility of the
party, to which the defendant knew he was
not entitled.

Another view of the question is also very
properly invoked by the plaintiffs. Their claim
to additional compensation, by the express
words of the contract, was made to depend
upon their being able to exhibit proof
that the defendants had paid other parties a
higher rate than $25 per ton for the same serv-
ice. Oral proof to that effect, if credible, was
as good as written. They were at libertv to
rely upon the one or the other, or upon both
combined, as cireumstances might indicate it
to be for their interest or convenience. Beyond
question they might introduce those charters
for that purpose, if they saw fit; or, if they
had the means, and preferred to do so, they

i9&-foa

Bdfremb Ooubt ov thb United Statbs.

Dbg. Tjeric,

might prove their case by other evidence: and
it cannot be maintained that their right to do
BO was in any manner impaired after those
charters were introduced. They were not par-
ties to those contracts, nor did they in any lej^l
sense claim under them. Their rights being
made to depend upon the subsequent transac-
tions of the defendants with third parties, h
was clearly proper to admit proof to show what
those transactions were.

Several courts and text writers have stated
the principle much broader than it is here laid
down. The rule exclucjing parol proof in
such cases, says Mr. Greenleaf, cannot affect
third persons; who, if it were otherwise, might
be prejudiced by things recited in the writings
contrary to the truth, through the ignorance,
carelessness, or fraud of the parties, and who,
therefore, ought not to be precluded from prov-
ing the truth, however contradictory to the
written instruments of others. In Krider v.
Lafferty, 1 Whart., 314, it is held, that the rule
is applicable only in suits between parties to
the agreement, and their representatives and
those claiming under them, and not to strangers.
It is also held in England, in several cases, that
the rule is not applicable to straneers. King
V. InhabiianU of Cheadle, 8 Barn. & Ad.. 883;
3 Taylor's Ev. , sec. 837, and cases cited ; Wilson
V. Mart, 7 Taunt., 395; Overseen of Berlin v.
Norwich, 10 Johns., 339; Poth. on Obi., by
Evans, n. 766; 3 Cow. & H., notes, 854, 868;
Eeynolds v. Magness, 3 Ired., 36; 1 Greenl.
£v., sec. 379.

Parol testimony is always admissible in mat-
ters of contract, to show fraud, notwithstand-
ing its effect may be to contradict what is in
writing. That principle is too well established
and too generally acknowledged to require any
confirmation. Parties have the right to make
their own contracts; and, in general, when they
are satisfied, that is sufficient, and others have no
ri^ht to complain. Cases, however, occasionally
anse where a contract, though bona fide be-
tween those who made it, may operate as a
fraud upon third parties; and in this case, as-
suming the facts to be as they have been found
by the Jury, and as the evidence tends to
prove that the stipulation in question was in-
serted in those charters for the purpose of
enabling the defendants, by that device, to
avoid their responsibility to the plaintiffs,
whether the owners of the vessels knew the
purpose or not, the act so far partakes of the
nature of a fraud between the parties to this
suit as te authorize the introduction of parol evi-
dence, to show what the truth was in regard to
those transactions.

For these reasons, we are of the opinion that
the instructions eiven by the Circuit Court
were correct, and that there is no error in the
record.

TJis decree of the Circuit Court, thertfore, is
affirmed, with costs.

Dissenting. Mr, Justice Orier* Mr, JusHce
Catroiiy and Mr. Justice Wayne.

8. C— 2 Black, 168.

Cited— 2 Wall., 743 : 5 Wall., 60»: 17 Wall., 142 ; 101
n. 8., 270 ; 1 Cliff., 822 : 2 Cliff., 466.

THE INSURANCE COMPANY OF THE
VALLEY OP VIRGINIA, Plff. in Er,,

M0SE8 C. MORDECAI.

(See 8. C, 21 How., 196-202.)

Writ of error, when must 60 returnable — cannot
be amended-^defeet in, cured only by appear-
ance, not by citation.

Tbis writ of error was made returnable on the
second Monday in January, Id the prteent term.
The writ of error must be returnable on thn first
day of the term,aDd a writ of error with a different
return day is not authorized by law. nor by thb
rules and practice of this court.

Neither can the writ of error be amended.

The defect can be cured, only by the voluntary
appearance of the party, entered on the record.

Nor can the mistake be corrected by a eitatloo
from this court.

The case must, therefore, be dismissed.

Argued Jan. fl, 1869, Bedded Jan, SI, 1859.

I IN ERROR to the District Court of the Unit-,
ed States for the Western District of Vir-
ginia.

This was an action of debt brought in the
court below, by the defendant in error, on a
judgment recovered in the Circuit Court of the
United States for the District of South Caro-
lina.

The court below having entered judgment
for (4,546, with interest and c^osts. in favor of
the plaintiff, the defendant sued out this writ
of error.

A further statement of the case appears in the
opinion of the court.

On motion to dismias.

Mr, Conway Robinson* for plaintiff in
error.

Grounds relied on in opposition to motion to
dismiss:

1. Under section 22 of the Act of Congress
establishing the judicial courts of the United
States, a writ of error, issued by the Clerk of
the Supreme Court, is to be returnable at a cer-
tain day and place therein mentioned ; but that
day need not be the first day of the next term.

The form of a writ of error is given in Cur-
tis' Digest, p. 599. It may be that in most cases
it is now made returnable to the first Monday
in December, and that formerly, when the term
commenced the second Monday in January, it
was in most cases made returnable to that day.
This, howeyer, is not because of any necessity
to make it returnable to the first day of the
term, but because that in most cases is a con-
venient day.

It would be of no avail to make it so return-
able, when there is not, between the day on
which the writ of error issues and the first day
of the next term, time to give the adverse party
the twenty or thirty days' notice required by
the Act of Congress.

Nor will it do to say that during the twenty
or thirty days next preceding the comifience-
ment of 'a term no writ of error is to issue. For
that would make it impossible ever to obtain,
under section 28, a supersedeas to a judgment
rendered within those twenty or thirty days.

2. Under the Act of Congress of May 8, 1792,
section 9, it was the duty of the Clerk of the
Supreme Court to transmit to the clerks of the

62 U.S.

1868

Inburancb Co. of Vallbt of Va. y. Mordbcai.

lOS-202

inferior coarts the form of a writ of error ap-
proved by two of the Judges of the Supreme
Court, and it was lawful for the clerks of the
inferior courts to issue writs of error agreeably
to such forms, as nearly as the case may
adroit.

Brightly, Dig., p. 187, sec. 4, p. 260, sec. 6.
p. 806. sec. 5, 11.

It may reasonably be presumed that in dis-
charge of the duty prescribed by this Act, the
form of a writ of error was approved by two of
the Judges of the Supreme Court, and trans-
mitted to the clerks of the inferior courts, and
that the writ of error in this case was issued
agreeable to such form. If so, the writ of error
must be lawful, unless there be something in
the Act which in terms requires the writ to be
returnable to the first day of the term. But this
is carefully avoided by the Act. which directs
merely that the writ of error shall be returnable
to the Supreme Court

8. If there be any Irregularity in the writ, it
it is merely clerical, like the irregularity in
Cimne v. ifiVead, 4 Dall.. 22, and Blackwell v.
Patten, ^,, 7 Crauch, 277 ; Monman v. Hig-
gih^nn, 4 Dall.. 12.

Wood 9. Lids, 4 Cranch, 180. modifies or ex-
plains Hamilton v. Moore, 8 Dall., 871, and
mair f>. MiU&r, 4 Dall., 21. In those cases the
objection was not that the writ was defective
in form, but that after the return day. a whole
term passed before the record and writ of error
was filed in the Supreme Court.

Mr. P. Phillips, for defendant in error, in
support of the motion.

Mr, ChitfJu$Uee Taney delivered the opin-
ion of the court:

- The defendant in error, on the 8th of Octo-
ber, ISSS, obtained a judgment against the
plaintilTs in error in the District Court of the
United States for the Western District of Vir-
g;inia.

On the 18th of the same month, this writ of
eiTor was sued out, and made returnable on the
second Monday in January then next ensuing —
in other words, it was made returnable on the
second Monday in January, in the present term
of this court ; and the defendant in error was
cited to appear here on that day.

A motion has been made to dismiss the case,
upon the ground that, in order to bring the
judgment of the District Court before this court,
the writ of error must be returnable on the first
day of the term, and that a writ of error with a
different return day is not authorized by law,
nor by the rules and practice of this court.

By the Act of Congress of May 8. 1792 (1
But., 278), it was made the duty of the Clerk
of this court to transmit to the clerks of the
several Circuit Courts of the United States the
form of a writ of error, to be approved by two
of the judges of this court ; and the clerks of
the circuit courts were by that Act authorized
to issue writs of error agreeably to such form,
as nearly as the case would admit. And it is
bv virtue of this Act alone that the clerk of a
circuit court, or of a district court exercising
the jurisdiction of a circuit court, is authorized
to issue a writ of error to remove a case to this
court.

Immediately after its passage, the form of a
writ of error was adopted and transmitted to

Bee 21 How.

to the clerks of the circuit courts, pursuant to
its provisions ; and that form made it returna-
ble on the first day of the term of this court
next ensuing the issuing of the writ — that is,
on the day appointed by law for the meeting of
the court. The form then adopted has never
been changed, nor are we aware of any case in
which a writ of error with a different return
day has been sanctioned by this court.

It is unnecessary, therefore, to inquire what
may be the rules of practice in this particular
in other courts. The legal return day was fixed
under the authority of the Act of 1792; and
a writ of error issued oy the clerk of a circuit
court, or of a district court exercising the pow-
ers of a circuit court, with a different return
day, or differing in any other material respect
from the form transmitted, is without authority
of law, and will not bring up the case to this
court.

The rules of the court have been framed in
conformity with this return day of the writ ;
and the rule which permits a defendant in error
to docket and dismiss a case if the transcript is
not filed by the plaintiff within the time there-
in limited, necessarily presupposes that the writ
is relurnabJe on the first day. and that the
plaintiff might then file the transcript.

He may, it is true, return the writ with the
transcript at any time during the term, unless
the case hi|8 been.doc'keted and dismissed, when
it cannot afterwards be filed without the special
order of the court. But this permission to re-
turn the writ, and file the transcript at a subse-
quent day, is upon the principle that, for cer-
tain purposes of convenience or justice, the term
is considered as but one period of time— as one
day, and that day the first of the term. The
writ before us was obviously issued by some
oversight of the clerk, who followed the form
used when this court met on the second Mon-
day in January, without, it would seem, ad-
verting to the circumstance that the day of
meeting had been changed by law, and that the
first Monday in December, and not the second
Monday In January, was the first day of the
term.

Neither can the writ of error be amended.
The defendant in error was cited and admon-
ished to appear on the second Monday in Janu-
ary ; and if the writ were amended, it could
not be maintained with this citation, for the
defendant must be cited to appear on the same
day that the writ is retiunabfe. The citation is
the re^lar and familiar process from a court
of justice, notifying and requiring the defend-
ant to appear and make his defense, if he has
any, on the return day of the writ. And the
common law process of a writ of error made
returnable on one day, and a summons to the
defendant to appear at another, would be with-
out precedent, and would be as objectionable
as the entire alraence of a citation. And the
want of proof that the defendant was cited has
always been held to be a fatal defect in the
process prescribed and required by the Act of
1789, whereby a party is authorized to bring
the judgment of an inferior court before thi«
court for revision — a defect which can be cured
only by the voluntary appearance of the party
entered on the record.

Nor can this mistake be corrected by a cita-
tion from this court. The Act of Congress re-

223-328

SUPREHB GOUBT OV THB UniTBD StATBS.

Dec. Tbbic,

quires it to be issued by the jud^ or Justice
who allows the writ of error, and it cannot be
legally issued by any other judge or court.

Tiie COM must, therefore, he dismiuedfor want
of jurisdiction in this court.

nted-21 Ho Wm 894 ; 3 WaU., SO : 6 Wall.* 246. 496 ;
S Wall.* 809.

ROBERT CAMPBELL bt al.. Plffs. in Br.,

CLEMENT BOYREAU.

(See 8. C, 21 How., 28&-2S8.)

In trials at common law, tio question can he re-
mewed, except upon process, pleadings orjudg-
ment, unless facts are found by a jury, or are
admitted— findings of fact by court, not recog-
nized—no exception, unless jury impaneled
— this court do not regard facts found by judge
— no question for re-examination — laws of State
cannot authorixe proceedings in this court.

In trials at oommoD law, no question of tbe law
can be reviewed In an appellate oourtjupon writ of
«rror (except only where It arises upon toe process,
or pleadlnflTB, or Judgment, in the cause), unless
the facts are found by a Jury, by a general or spe-
cial verdict, or are admitted by the parties, upon a
oase stated in the nature of a special verdict stat-
ing the facts, and referring the questions of law to
tbe court.

The flndlnir of issues of fact by the court upon
the evidence Is altogether unknown to a common
law court, and cannot be recognised as a Judicial
act.

Nor can any exception be taken to an opinion of
the court upon the admission or rejection of testi-
mony, or upon any other question of law which
may grow out of the evidence, unless a> Jury was
actually impaneled, and the exception reserved
while they were at the bar.

And as this court cannot regard tbe facts found
by the judge as having been Judicially determined
In the court below, there are no facts before us up-
on which questions of law may legally and Judi-
cially have arisen In the Inferior court,and no ques-
tions, therctore, open to our revision as an appel-
late tribunal.

Ck)nsequently, as the circuit court had Jurisdic-
tion of the subject-matter and the parties, and
there is no question of law or fact open to our re-
examination. Its Judgment must be presumed to
be right, and, on that ground, only, aflBrmed.

NoTther the laws nor the practice of any State can
authorise a proceeding in the courts of the United
States different from that which was established
by the Acts of 1789 and 1803.

Argued Jan. gl, 1869. Decided Jan. SI, 1859.

IN ERROR to the Circuit Court of the United
States for the Northern District of Cali-
fornia.

The case is sufficiently stated by the court.

No counsel appeared for the plaintifT in
error.

Messrs. R, J. Brentt J. J. Crittenden
and J. H. Bradley* for defendant in error:

No exception lies in any case where the law
and facts are tried by the court.

Weems v. Oeorge, IH How., 197; Oraig ▼.
MisHouri, 4 Pet., 427; 9 Pel., 282.

The writ of error in this case brings up only
questions of law arisinjr upon the finding of
the court, and not questions of fact.

U. 8. r. King, 7 How., 844; PerihaUaw v.
Doane, 8 Dall., 64; Uyde v. Booraem, 16 Pet.,
169: Minor y. Tillotson, 2 How.. 892.

This case, then, coming up on the writ of

error, to review the errors of the court in mat-
ters of law only, the facts found by the court
are to be taken as conclusive whether the court
was or was not warranted in finding the facts
certified.

Mr. Chief Justice Tajiey delivered the opin-
ion of the court:

This is an action of ejectment (although the
pleadings are not in the form prescribed by
common law) to recover a tract of land called
San Leandro, situated in California. It was
brought in the Circuit Court of the United
States for that district. The parties agreed to
waive a trial of the facts bv alury, and that
the facts as well as the law should be decided
by the court, upon the evidence adduced by
the parties.

In pursuance of this agreement, evidence was
ofFereid on both sides; and the court proceeded
to decide the facts in dispute, and then pro-
ceeded to decide the questions of law arising
on the facts so found by the court; and finally
gave Judgment against .the plaintiffs in error,
who were defendants in the court below. And
this writ of error is brought to revise that Judg-
ment.

It appears by the transcript that several ex-
ceptions to the opinion of the court were taken
at the trial bj the plaintifCs in error— some to
the admissibility of evidence, and others to the
construction and l^al effect which the court
gave to certain instruments of writing. But it
is unnecessary to state them particularly; for
it has been repeatedly decided by this court,
that, in the mode of proceeding which the par-
ties have seen proper to adopt, none of the quee-
tions, whether of fact or of law, decided by
the court below, can be reexamined and r»>
vised in this court upon a writ of error.

It will be sufficient, in order to show the
grounds upon which this doctrine has been
maintained, and how firmly it has been settled
in this court, to refer to two or three recent
cases, without enumerating the various decta-
ions previouslv made, which maintain the same
principles. The point was directly decided in
Guild etal. v. Frtmtin, 18 How.. 185; which,
like the present, was a case from California,
where a court of the United States had adopted
the same mode of proceeding with that fol-
lowed in the present instance. And the decis-
ion in that case was again re-afflrmed In the
case of Suydam v. WiUiamson etal., 20 How. ,
482; and again in the case of KeU^ et al. ▼.
Forsyth, 21 How., 85. decided at the present
term.

Indeed, under the Acts of Congress estab-
lishing and organizing Uie courts of the United
States, it is clear that the decision could not be
otherwise; for, so far as Questions of law are
concerned, they are regulated in their modes
of proceeding according to the rules and prin-
ciples of the common law, with the single ex-
ception of the courts in the State of Louisiana,
of which we shall presently speak. And b^
the established and familiar rules and princi*
pies which govern common law proceedings,
no question of the law can be reviewed and re-
examined in an appellate court upon writ of
error (except only where it arises upon the
process, pleadings, or Judgment, in the cause),
unless the facts are found by a Jury, by a gen-

6S U.S.

185a

F&SKCH*B LVtSKB Y. 8PBNCSR.

228-241

end or special Terdict, or are admitted by the
parties, upon a case stated in the nature of a
special Terdict stating the facts, and referring
the questions of law to the court.

The finding of issues in fact by the court up-
on the evidence is altogether unknown to a
common law court, and cannot be recognized
as a judicial act. Such questions are exclu-
sively within the province of the Jury ; and if,
by agreement of parties, the questions of fact
in dispute are submitted for decision to the
Jud^ upon the evidence, he does not exercise
iudicial authority in deciding, but acts rather
in the character of an arbitrator. And this
court, therefore, cannot regard the facts so
found as Judicially determined in the court be-
low, nor examine the questions of law, as if
those facts liad been conclusively determined
by a Jury or settled by the admission of the
pikities. "Nor can any exception be taken to an
opinion of the court upon tne admission or re-
jection of testimony, or upon any other ques-
tion of law which may grow out of the evi-
dence, unless a jury was actually impaneled,
and the exception reserved while they were still
at the bar. The statute which gives the ex-
ception in a trial at common law gives it only
in such cases. And as this court cannot regard
the facts found bv the judge as having been
judidaDy determined in the court below, there
are no facts before us upon which questions of
law may legally and luaicially have arisen in
the inferior court, ana no questions, therefore,
open to our revision as an appellate tribunal.
CoiMequently, as the circuit court had juris-
diction of the subject-matter and the parties,
and there is no question of law or fact open to
our reexamination, its Judgment must be pre-
sumed to be right, and on that grounjd only
affirmed.

The cases referred to in the argument, which
were brought up by writs of error to a Circuit
Court of Ijouisiana, do not apply to this case.
The Act of Congress of May 26, 1824 (4 Stat.,
62), adopted the practice of the state courts in
the courts of the United States. And a writ
of error to a circuit court of that State, there-
fore, is governed by difFerent principles from
a like writ to the circuit court of any other
State. And as, by the laws of Louisiana, the
facts, by consent of parties, may be tried and
found by the court without the intervention of
a Jury, Uiis court is bound, upon a writ of er-
ror, to regard them as judicially determined,
and treat them as if they had been found by the
special verdict; and the questions of law which
arise on them are consequently open to the re-
vision of this court.

But the practice in relation to the decisions
in that State is an exception to the eeneral
rules and principles which regulate the pro-
ceedings of the courts of the United States ; nor
can the laws or the practice of any other State
authorize a proceeding in the courts of the
United States different from that which was
esublished by the Acts of 1789 and 1808, and
the subsequent laws • carrying out the same
principles and modes of proceeding.

Upon the grounds above stated, the judg-
ments in this case must be affirmed. But it
must at the same time be understood tliat this
court express no opinion as to the facts of the
law as decided by the Circuit Court, and that

See 21 How. U. S., Book 16,

the whole case is open to re-examination and
revision here, if the questions of fact or law
should hereafter be brought legally before us,
and in a shape that would enable this court to
exercise its appellate Jurisdiction.

Clted-O WaU., 420 ; 12 Wall., 281 ; 14 WaU., 68 ; 91

u. 8., au.

LESSEE OP WILLIAM C. FRENCH and
WiPB, Plff.inBr.,

WILLIAM H. SPENCER, Jr., kt al.

(See 8. C, 21 How., 228-241.)

Act of May 6, 18 IS, and Act of 1816— ^here
the law does not make exception, courts cannot
— what description in deed, sufficient— patent
dates back to locatidfi — patent inures to benefit
of prior alienee — estoppel by deed.

The Act of May 6, 1812, the 4th section of which de-
clares that no olaim for military land bounties
shall be assignable or transferable until after the
patent has beengrranted, and that all sales, mortga-
ges or contracts made prior to the fssuinff of the
patent, shall be void, is not part of the Act of 1816.

Where the Legislature makes a plain provision,
without making any ejEoeption, the courts can
make none.

Where the warrant is recited in the deed, and the
quantity of land it calls for; and the grantor
grants, bargains and sells, to the grantee, his heirs
and assigns, forever, the said three hundred and
twenty acres of land : Held that the deed was a
valid conveyance of grantor's interest in the land
at the time the deed was executed.

The patent relates back to the location of the
warrant, and constitutes part of the title.

An intermediate hmux )lae alienee of the incipient
interest may claim that the patent inures to his
benefit by an ex post facto operation, and receive
the same protection at law that a court of equity
could afford him.

Where the grantor sets forth on the face of his
conveyance, by averment or recital, that he is
seised of a particular estate in the premises, and
which estate the deed purports to convey, the
grantor, and all persons in privity with him, shall
be estopped from ever afterwards denying that he
was seised and possessed at the time he made the
conveyance.

Argued Jan, 18, 1859, Decided Jan, 81, 1869,

IN ERROR to the Circuit Court of the
United States for the District of Indiana.

This was an action of ejectment brought in
the court below, by the plaintifF in error, to
recover a certain tract of land in Indiana.

The trial below having resulted in a verdict
and Judgment for the defendants, the plaintiff
sued out this writ of error.

A further statement of the case appears in
the opinion of the court.

Mr, R. W. Thompson, for plaintiffs in
error:
The plaintiffs assign the following errors:

1. The Circuit Court erred in admitting,
against their objection, the instrument dated
June 28, 1816, as evidence for the defendants.

2. The court erred in giving instructions to
the jury.

The instrument dated June 28, 1816, is upon
its face void, because it is in direct violation of
the several Acts of Congress in relation to
bounties and land for military services. It was
not an instrument assignable at common law.
If assignable, it must 1^ because of the several
Acts of Congress on the subject.

7 »7

2dS-241

BXJFBISICE OOUBT Of THB XJlflTBD BTA'nB.

Dbc. Tbrm,

The counsel referred to the Acts of Dec. 2i,
1611. 2 8tat. atL., 667; Jan. 11, 1812. 2Btat. at
L.. 671, 672, sec. 12; Feb. 6, 1812, 2 Stat, at L..
676, sec. 2; Mav 6, 1812, 2 SUt. at L., 729,
sees. 2 and 4; March 5, 1816, 8 Stat, at L., 256;
April 16. 1816, 8 Stat, at L., 285-287, sec. 5.

These several Acts in force at date June 28,
1816, show conclusively that it was the design
of Congress to prevent the alienation of these
bounties by Uie parties to whom they were
granted.

In 1819 Mr. Wirt. Atty-Oen., gave an opin^
ion that a Canadian land -warrant was not as-
signable.

Public Land Laws, part 2, p., 6 sec. ; also./d..
pp. 9, 15, 16, 160.

Subsequently, however. Congress passed the
Act of March 3, 1821, recognizing and so far
as it could be done, legalizing the assignment
of Canadian land warrants.

3 Stat, at L., 641.

This Act did not reach this case. Its provis-
ions extend only to cases where the warrant had
been assigned and not located at that time. It
merely authorized previously assigned warrants
to be located. But the paper of June 28, 1816,
was not in point of fact an assignment of the
warrant by Fosgit to Spencer. There was then
no warrant in existence, and consequently
nothing to assign. Nor was it a deed of con-
veyance. Fosgit, under the foregoing Acts, had
no more power, before the issue of the patent,
to make such a deed than he had to make an as-
sijrnment; but it does not purport to be a deed
of conveyance. At one place it uses the words
of bargain and sale; at another, those which
create a trust. Where the words of a deed are
so uncertain that the intention of the maker
cannot be discovered, it will be held to be void
for uncertainty.

1 Greenl. £v., qec. 800; {Tl 8. «. King, 8
How. . 778.

Where there are any words in a deed which
evidently appear repugnant to the other parts
of it and to the general intention of the maker,
they will be rejected as senseless.

Ferguson v. Martoood, 7 Cranch, 414; Worth-
ington v. Hylyer, 4 Mass. , 196 ; Jackson v. Clark,
7 Johns., 217; Cutler v. 7V/lte, 8 Pick.. 272;
Bolt V. BtCmeU, 11 Mass., 168; Jackson v. Boot,
18 Johns, 336.

But if it had been designed as a deed of
conveyance, it did not convey the l^gal estate
to Spencer.

Coke, sec. 446; Hilliard, Abr., 809, sec. 25.

The patent was not issued until Oct. 26,
1816, and until then the legal title was in the
United States.

Foley V. Harrietm, 15 How., 447; Dubois v.
I^ewman, 4 Wash. C. C.,77; Wilcox v. Jaekson,
18 Pet., 516; Green v. IMer, B Cnxxch, 229;
Irvine y. Marshall, 20 How., 558; BagndlY,
Broderiek, 18 Pet., 486.

If, then, this instrument is a convey«nce at
all, it conveys at moat an equity which does
not avail the defendants in this action.

Again ; if it be conceded to be a deed of con-
veyance, it is a quitclaim merely, by which
Fosgit parted only with the equitable estate
that he possessed at its date. A subsequently
acquired estate does not pass where there are
no covenants of title.

Van Bennselaer v. Kearney, 11 How., 297;

FsnetreauY. Jackson, 11 Wend., 116; Jackson
V. Waldron, 18 Wend., 212.

It is, however, insisted that it is to be pre-
sumed from lapse of time, that the legal
estate had been conveyed to Spencer. Tliia
abandons the ground that the mstrument of
June 28, 1816. is a conveyance, and treats it
as an executory contract to convey, and yet is
the point upon which the case was decided in
the Circuit Court. This presumption, that a
deed was executed by Foi^t to Spencer, does
not arise in the case as it now stands. The*caae
turned in the court below upon the single ques-
tion of the validity and effect of the paper of
June 28, 1816, and both the instruction of the
court and the bill of exceptions show this. It
would be an easy matter to show that no such .
presumption can be indulged in this case, if that
question should ever arise. There is nothing
to base it upon. It is not shown that twenty
years have elapsed since Fosgit was in a con-
dition to execute the agreement to convey (8
Phil on Ev., Cow. & Hill's Notes, 605, cases
cited); nor that he ever knew that the legal
estate had passed to him by the issue of the
patent, or that after his death his heirs ever
knew it. The disability and ignorance of the
party always repel presumptions.

8 Phil. Ev., C. & H.'s Notes, 497; 8 Johns.
Ch., 129; Bursty, McNeU, 1 Wash. C. C.,70;
Henderson v. Hamilton, 1 Hall, 814.

Besides all this, there is no period of twen^
years' possession claimed under adverse title.

8 Green]., 120.

Whatever was the character of the paper of
June 28, 1816, the Cirxsuit Court erred in tell-
ing the jury that it was "a complete defense
to this action;" and therefore Uiey "should
find for the defendants." It was the duty of
the court to construe it, so far as the intenUons
of the parties can be elicited from it, for
the purpose of deciding whether it is relevant
to the matter in controversy, and the act of the
parties by whom it purports to have been exe-
cuted. There the authority of the court ends.
In this case, it belonged to the jury alone to
decide whether or no Fosgit intended by this
paper to convey the particular lands in dispute,
and whether Spencer so understood it at the
time the paper was executed.

Beed v. Proprietors of Locks and (Janals, 8
How., 288.

It was not per se a conveyance of the land
described in Uie patent.

The court haa no right to decide what was
the intention of Fosffit; it was for the jury to
decide upon the wei^t of the evidence.

Mr, JL Bennett* for defendants in error.

Mr, Justiee Catron delivered the opinicm
of the court:

Silas Fosffit obtabied a warrant for three
hundred and twenty acres of land as a Cana-
dian volunteer in the war of 1818 with Great
Britain. This warrant he caused to be loca-
ted in the Indiana Territoty, June 8, 1616,
on the land in dispute. On the 28th day of
that month he conveyed the land to William
H. Spencer, who died in possession of the
same; it descended to his children and heirs,
who continued in possession, and are sued in
this action by one of the two heirs of Fosgit,
who died about 1828. A patent was issued by

68 U. S.

1868.

Fbbnch'b Lbbbbb y. Bpbncbb.

82&-241

the United States to Fosfftt, dated In October,
1816. The deed from Fosgit to Spencer was
offered in evidence in the Circuit Court, on
behalf of the defendants, and was objected to:

Ist. Because it is void on its face, being in
violation of the Acts of Congress touching the
subject of bounty land for military services,
and against the policy of the United States on
that subject.

dd. Because said writing, on a fair legal
construction of its terms, conveys no l^al title
(and, indeed, no title at all, of any kino) to the
lands in question; and,

8d. Because said writing is irrelevant, and
incompetent as evidence in this cause.

The court overruled the objections, and per-
mitted the defendants to give the wrilinGr in
evidence, and instructed the jury that it was
a complete defense to the action ; to all of which
the plaintiff excepted.

1. Was the writing void because it was in
violation of Acts of Congress touching the sale
of bounty landg before the patent had issued?
This depends on a due construction of the
Act of 1816. It gave to each colonel nine hun-
dred and sixty acres; to each major eight hun-
dred acres; to each captain six hundred and
forty acres; to each subaltern officer four hun-
dred acres; to each non-commissioned ofi-
oer,mu8ician and private three hundred and
twenty acres; and to the medical and other
staff in proportion to their pay, compared with
that of commissioned officers. Warrants were
ordered to be issued by the Secretary of War,
subject to be located by the owner, in quarter
oections, on lands within the Indiana Territory,
surveyed by the United States at the time of
the location. And three months additional pay
was awarded to this description of troops.

By the Acts of 1811, ch. 10; 1812, cb. 14, sec.
12. and that of May 6, 1812, ch. 77, sec. 2, it
was provided that each private and non-com-
missioned officer who enlisted in the regular
service for five years and was honorably dis-
charged and obtained a cerli6cate from his
commanding officer, of his faithful service,
should be entitled to a bounty of one hundred
and sixty acres of land ; and that the heirs of
those who died in service should be entitled to
the same, to each of whom by name a warrant
was to iasue. The Act of jfay 6, 1812, pro
vided for surveying, designating, and fn*anting
these bounty lands; the 4th section of which
declares that no claim for military land boun-
ties shall be assignable or transferable until after
the patent has Seen granted ; and that all sales,
mortgages, or contracts, made prior to the issu-
ing 01 me patent, shall be void; nor shall the
lands be subject to execution sale till after the
patent issues. n *

It is insisted that this provision accompanies
and is part of the Act of 1^16, and several
opinions of Mr. Attorney-Ckneral Wirt are relied
OQ to stistain the position that the Acts granting
bounty lands are in pari materia, and must be
construed alike. He gave an opinion in 1819
(2 L. L., and Opinion '6), that a land- warrant
issued to a Canadian volunteer was not assigna-
ble on its face, or in its nature, and conse-
quently that the patent must issue in the name
of the soldier. But he did not decide, nor was
be called on to do so, that, after the warrant
had been located and merged in the entry, that

Bee 21 How.

the equitable title and right of possession to the
land could not be transferred by contract.

The Act of 1816 involves considerations, dif-
ferent from the previous provisions, for the
protection of the enlisted common soldier. A
class of active, efficient, American citizens,
who had emigrated to Canada, were compelled
to leave there on the war of 1812 breaking out;
they returned to their own country, and went
into its service: and when the war was ended,
both officers and soldiers were compensated in
lands and money for this extraordinary service.
The Act of Congress orders the warrants to be
delivered to the respective owners, to be located
by them; whereas the common soldier, pro-
vided for in the Acts of 1811 and 1812, did not
receive his warrant, but the Governtnent bound
itself to locate the land at its own expense.
Congress may have thousht it not at all neces-
sary to guard the Canadian volunteers against
being overreached by speculators, and deprived
of their bounty lands. This, however, is mere
conjecture. The Act of March 5, 1816, has no
reference to, or necessary connection with, any
other bounty land Act ; it is plain on its face,
and single in its purpose. And, then, what is
the rule? One that cannot be departed from
without assuming on part of the judicial tri-
bunals legislative power. It is, that where the
Legislature makes a plain provision, without
mi&ing any exception, the courts can make
none. Mclter v. Regan, 2 Wheat., 25; PatUm
V. McClure, Martin & Yerger's Tenn., 845, and
cases cited; Cocke db Jack v. McGxnrm, lb.,
865; Troup v. Smith, 20 Johns., 88. We are
therefore of the opinion that Fosgit could sell
and convey the land to Spencer after the entry
was made.

2. The next ground of objection to the deed
is. that it conveys no title when fairly con-
strued. It has a double aspect, obviously, for
the reason that the parties to it did not know,
at tbe time it was executed, whether or not the
land had been located by Foseit's agent. The
issuing of the warrant is recited in the deed, and
the quantity of land it calls for; and then the
grantor says: "For the consideration of five
hundred dollars, I have assigned and set over,
and by these presents do grant, bargain, sell,
transfer, assien, and set over, to said William
H. Spencer, his heirs and assigns, forever, the
said three hundred and twenty acres of land;
to have and to hold the same in as full and am-
ple a manner as I, the said Silas Fosgit, my
heirs and assigns, might or could enjoy the
same, by virtue of the said land-warrant or
otherwise ."

Then follows an irrevocable power from Fos-
git to Spencer, his heirs or assigns, to locate
the warrant, obtain a patent, &c.

The warrant having been located on land al-
ready surveyed, it could easily be identified.
The description is to the same effect as if the
deed had said, I convey the land covered by
my warrant of three hundred and twenty
acres.

We are, therefore,of the opinion that the deed
was a valid conveyance of Fosgit's interest in
the land sued for at the time the deed was exe-
cuted.

The third exception to the deed is covered
by the foregoing answers.

8. The charge of the court to the jury held.

84fr-856

BUPBBICB OOUBT OF THB UnTTBD BtATM.

Dbo. Tbbm,

af> a matter of law, that the deed was a com-
plete defense to the action, and that the patent
issued to Fosgit related back to the location of
the warrant, and constituted part of Spencer's
title.

This consideration involves a question of
great practical importance to States and Terri-
tories where entries exist on which patents have
not issued, as sales of such titles are usual and
numerous. The incipient state of such titles
has not presented any material inconvenience,
as it it is usually provided by state laws that
suits in ejectment may be prosecuted or defend-
ed by virtue of the title.

In Indiana, it is provided by statute that
** every certificate of purchase at a land office
of the United States shall be evidence of legal
title to the land therein described." That is to
say, for the purposes of alienation and trans-
fer, and for the purposes of litigating rights of
property and possession, a certificate of pur-
chase shall be treated as a legal title; ana to
this effect it is competent evidence in an action
of ejectment. Smith v. Mosier, 5 Blackf., 51.

After the patent issued, this title was exclu-
sively subject to state regulations, in so far as
remedies were provided For its enforcement or
protection; and therefore no objection can be
made to any state law that does not impugn
the title acquired from the United States.

Whether the patent related back in support
of Spencer's deed is not a new question in this
court. It arose in the case of Lande* v. Brant,
10 How. , 872, where it was held that a patent
issued in 1845 " to Clay morgan and his heirs,"
by which the heirs took the legal title, related
back and inured to jhe protection of a title
founded on a sheriff's sale of Claymorgan's
equitable interest, made in 1808. There, as
here, the contest was between the grantee's
heirs and the purchaser of the incipient title.
The court holding, that when the patent is-
sued, it related to the inception of title, and
must be taken, as between the parties to the
suit, to bear date with the commencement of
title.

It is also the settled doctrine of this court,
that an entry in a United States Land Office on
which a patent issues (no matter how long after
the entry is made), shall relate to the entry,
and take date with it. Boss v. Barland, 1 Pet.,
655. The fiction of relation is, that an inter-
mcMcliate bona fids alienee of the incipient inter-
est may claim that the patent inures to his
benefit by an ex post facto operation, and re-
ceive the same protection at law that a court
of equity could afford him.

4. We hold that, on another ground, the in-
struction was clearly proper.

Here, the after acquired naked fee is set up
to defeat Fosgit's deed, made forty years ago
in good faith, for a full consideration, and to
oust the possession of Spencer's heirs, holding
under that deed. The rule has always been,
that where there was a warranty or covenants
for title, that would cause circuity of action if
the vendee was evicted by the vendor, then the
deed worked an estoppel. But the rule has
been carried further, and is now established,
that where the grantor sets forth on the face of
his conveyance, by averment or recital, that he
is seised of a particular estate in the premises,
and which estate the deed purports to convey,

100

the grantor and all persons in privity with him
shall be estopped from ever afterwards deny-
ing that he was seised and possessed at the
time he made the conveyance, The estoppel
works upon the estate and binds an afterac-
quired title, as between parties and privies.
Van BensseUwr v. Kearnep, 11 How., 835;
Landes v. Brant, 10 How., 874.

It follows that the heir of Fosgit is estopped
by her father's deed from disturbing the title
or possession of Spencer's heirs.

It is ordered that the judgment of (he Oireuit
Court be affirmed, ><<T?5\

Cited-22 How., 191 ; 1 Black, 867. Ar>

FINLAY McKINLAY and ALEXANDER
GARRIOCK, Composing the Firm of Mc-
KiNLAT, Gabriock & Co., Appts.,

WM. MORRISH, Master and Claimant of Che

ship *' Pons .^lii," on behalf of Robert

and Edward Formbt, Owners of said ship.

(See 8. C, 21 How., 843-356.)

Allegation insvfflcient for proof of unseaworthi-
ness—burden of proof is on libelants — Hbd in
agenfs name or principal's — rig?U of consignee
to sue.

An allegration of neRllgence of the master will
not let in the libelant to prove unseaworthiness of
the vessel.

The burden of proof of such an allegation is
upon the libelants, and the t-estimony must be
positive, or so violently preRumptive as to be suf-
flcient, by the rules of evidence, to supply the
want of direct proof.

It is well settled in admiralty proceedings, that
the agent of absent owners may libel, either in his
own name, as agent, or in the name of his prin-
cipals, as he thinks best.

From the nature of the contract of a bill of lad-
ing, the consignee has a right to sue, in a court of
admiralty, for any breach of it.

Argued Jan. 10, 1859, Decided Jan. SI, 1859,

APPEAL from the Circuit Court of the Unit-
ed States for the District of California.

The libel in this case was filed in the Dis-
trict Court of the United States for the North-
ern District of California, by the appellant, to
recover damages alleged to have been sustained
on a shipment of soap made at Liverpool to be
carried to San Francisco.

The said court having entered a decree dis-
missing the libel with costs, the libelants took
an appeal to the Circuit Court of the United
States for the District ot California, which
court afiirmed said decree; whereupon the
libelants tocfk an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Mr, Daniel Lord, for appellants.

Messrs, R. J. Brent and Reverdy John-
son* for appellees.

Mr. Justice Wayne delivefed the opinion
of the court:

This is the case of a foreign vessel having
been libeled in a port of the United States when
about to leave it, her master having refused to
pay for the damage said to have been sustained

62 U.&

1858.

McElKLAY y. MORBISH.

843-856

on a shipment of soap, made at Liverpool, to
be carried to San Francisco, California, tia
Honolulu. The shipment was made by Mat-
thew Steele & Son. It was said in the bill of
lading to be in good order and condition, and
the undertaking was to deliver it so to Messrs.
HcEinlay, Garriock & Co., or to their assims.

The consignees libeled the ship, alleging that,
though theywere always willing to receive the
shipment in good order, the master of the ship
bad not made it, and that the^ had refused to
receive it, on account of the mjury it had sus-
tained from a want of proper care in loading,
storing, landing, re- landing, and re-storing the
soap, and owing to the careless, negligent and
improper manner of storing it under the deck
of the ship, which was open and leaky, through
which water passed, and damaged, it to the
amount $9,500.

The respondent meets the charges by a di-
rect denial of them, averring if the soap had
been in any way injured, it may have been
from causes beyond his control by any care
whatever, and should be attributed to causes
or perils excepted to, as they were expressed
in the bill of lading, viz.: '*a11 and every
danger and accident of the seas and navigation
of whatsoever nature." The respondent also
declares that his ship was, at the time of her
sailing from Liverpool, in good, tight and
strong condition, well manned, and that her
cargo was well dunnaged and stowed ; but that,
in the course of the passage to Honolulu, she
encountered heavy storms and gales, which
strained and caused her to leak, and had com-
pelled him to throw overboard a part of the
cargo, for the preservation of the rest of it, and
of the vessel; and that during the passage he
had used ever^ precaution to preserve the cargo
that was withm his power and that of his of-
ficers and crew.

The libel and answer are directly at issue,
and no answer can be made more responsively
to the charges in a bill than this is.

Acconiingly, then, to the rules of pleading
in admiralty, there is no necessity fordoing so;
nor are we permitted to consider much of the
testimony in this record. When litigants
make their case in express allegations and by
express denials of them, and then introduce
testimony inapplicable to the issues they have
made, it is not a part of the case, unless as it
shall inferentially bear upon other evidence
properly in it, upon which the partly rely for
the determination of their controversy. This
caae furnishes as apt an illustration of the rule
Just mentioned as can be given. The libelants
put their case upon bad and careless stowage,
«Sbc., of the soap, and upon leaks in the deck
in the ship, through which water passed and
damaged it. The respondent denies both ; but
he goes on to state that his ship was tight and
strong for the voyage when he left Liverpool,
and both parties question the witnesses as to
that fact; though the libelants had not charged
that their goods had been injured from that
cause, and had not put in issue at all the sound-
ness and seaworthiness of the ship for the voy-
age ^e was about to make. This same point
of pleading was before this court in the case of
Lawrence Y. Minium, 17 How., 100, 110, 111,
which was as learnedly argued, and as deliber-
at^y decided as any o&er case in admiralty has

See 91 How.

been in our time. This court then said: "We
find the conduct of the master in making the
jettison to have been lawful ; and the remain-
ing inquiry is. whether the necessity for it is
to be attributed to any fault on the part of
the master or owners. The libel alleges the
loss of the goods to have been through the
mere carelessness (just as this case does) and
misconduct of the master and mariners. We
were at first inclined to the opinion that this
allegation is not broad enough to put in issue
what the libelants have at the hearing so much
insisted upon, and what we think is the main
question in this part of the case — the suf-
ficiency of the ship to carry the cargo. It is
no doubt the general rule, that the owner war-
rants his ship to be seaworthy for the voyage
with the car^o contracted for. But a breach
of this implied contract of the owner does not
amount to negligence or want of skill of the
master and manners. There would be much
difficulty, therefore, in maintaining, as a gen-
eral proposition, that an allegation of negli-
gence of the master would let in the libelant to
prove unseaworthiness of the vessel." And in
the next paragraph of that opinion, pa^ 111,
it will be seen that the rule of pleading in such
cases was not enforced only upon the ground
that the inquiry in that case necessarily led to
an examination whether the jettison was occa-
sioned by the negligence of the master in over-
loading the ship.

It was a nice distinction, but a true one, and
it will have its influence hereafter upon other
cases having the same difficulties as that had.
It has been adverted to, to warn the profession
that the irregularities of pleading in admiralty,
now too frequently occurring, nave attracted
our attention, and will be treated hereafter ac-
cording to the rules and practice for pleadings
ana proofs in admiralty cases. Without doing
so the jurisdiction of admiralty may often be
practically extended to controversies not belong-
ing to it; and though that may be inadvert-
ently done, it will not be the less mischievous.

With this rule in view, we will not examine
much of the testimony in the case before us,
though it was made much of the argument of
the respective counsel representing the parties.
It excludes from the merits of the case all in
the record relating to the storm in the Bay of
Biscay, the leak which it caused, and the re-
pair of it. Both parties have treated it, by
their pleadings, as having in no way caused
any damage to the soap; also, the storm which
afterwards tried the seaworthiness of the>hip
to the utmost, when she was weathering uape
Horn, without any diminution of it, except so
far as to inquire if it could have been that the
seas which she then shipped had damaged the
soap, by the water passing through the seams
of a deck imperfectly calked. And we ex-
clude, also, all that testimony made up of the
opinions of supposed experts in regaitl to the
causes of the alternation in the quality of the
soap, excepting such of them as are sustained
by facts which have the character of legal
proof.

By treating the case in this way. the con-
troversy becomes exclusively one upon the al-
leged want of proper care in stowing, &c., the
soap; and upon the charge made against the
captain of the ship, that he had neghgently al.

101

848-a56

SlTPBIDlB COUAT Of THB TJinTBD StaTBS.

Dbo. Term,

lowed the eeams of her deck to be in aa open
and leaking condition, by which water had
passed through them upon the soap.

Our examination of the case has been made
accordin|i;1^. It will be found to coincide with
the admissions made in his argument b^ the
learned counsel of the appellants. Two of his
points were, that the injury or change in the
quality of the soap was not owing to the effects
of the gale occurring in the Bay of Biscay,
shortly after the ship left Liverpool, though it
had produced a leak; next, that the heavy
weather on Uie passage around Cape Horn did
not produce any leak nor do any injury to the
tightness of the ship, reserving, however, the
charge that the water which sl£ then shipped
had passed through the leaks in her deck, and
damaged the soap. Then, after stating other
propositions of obligation upon the ship, before
she could be released from liability, and omis-
sions of the duty by the captain, and the proofs
which were necessary to excuse them, which
he contended had not been made, the case was
put altofl;ether upon bad stowage, and the leaks
m the deck, as both had been allezed in the
libel.

First, as to the stowage. Two witnesses were
examined, both of them professing to know
how soap in boxes should be stowed for a long
passage. They say that the stowage was im-
proper, on account of the boxes having been
placed or piled in tiers in one part of Uie ship,
and that th^y were stowed up to the main deck,
and not chocked. One of them added, that re-
gard should be had, in stowing, to the nature
of the goods to be stowed; that soap should not
be stowed in so solid a bulk as this was, but
should have been distributed more over the
ship. Waterman, another witness, who had
never seen the ship, and of course knew
nothing of the stowage, merely said, that soap
stowed twenty-five tiers deep, he should think
was badhr stowed, and would be apt to be in-
jured. Such is the whole of the testimony to
prove bad stowage in this case, unless the opin-
ions of other witnesses, expressed in the course
of their examination, without any facts having
been given by them to sustain their opinions,
are taken as evidence. On the other hand,
Nicholson, a man of more than thirty years'
experience as a nautical man, who visited the
ship by the invitation of the port warden, to
examine the soap and who went into the hold
for that purpose, says, in answer to the ques-
tion, '* How was the cargo stowed? Some of
the boxes appeared to me to be re-stowed. I
do not Uiink the upper part was the original
stowage. There were a great number of them
in sight, and the cargo seemed to me to be very
well stowed." Noyes, who was called upon,
as port-warden, to survey the ship, and two
days afterwards to survey the cargo, says the
soap was stowed in the after part of the ship,
abaft the after hatch. It was all stowed to-
gether, and well stowed. Then Lowry, the
stevedore who discharged the cargo of the ship,
who saw her hatches opened, says the soap was
well stowed.

There are differences between the witnesses
as to the stowage of the soap, but not contra-
dictory assertions. As to credit, they stand
alike. But there is a distinction in their dec-
larations, which, with us, is conclusive. The

190

three first named speak of the manner of stow-
i^ge. with reference to the effect which might
be produced upon soap in boxes, stowed in
a vessel in tiers, as these boxes were. With-
out a word of proof from themselves, or from
anyone else, or from Mr. McCulloch, the
chemist, who was called upon by the libelants
to analyze the soap as it then was, to show the
correctness of the apprehension or opinion of
the witnesses, that, from the composition of
soap, it was liable to deterioration from bein^
stowed in a mass in the hold of the vessel, and
without any evidence that it was customary to
stow soap, in boxes, differently, the other three
witnesses speak of it as a nautical stowage, and
without any qualification, say that the soap was
well stowea. Our conclusion is, that the soap
was not injured as a consequence from having
been stowed as it was.

We proceed to the consideration of the sec-
ond charge in the libel. It is also an imputa-
tion of negligence upon the captain of the ship.
It is, that the soap had been injured by the
deck having been allowed by him to remain in
an open and leaking condition, whereby the
water thrown or falling on it passed through
upon the soap beneath. It is indefinite as to the
time when the leaking of the deck occcurred,
and uncertain as to the extent of it, but de-
terminate enough to suegest the kind and
quantity of testimony which is necessary to
sustain such charge in the ciroumstances under
which it has been made. The seaworthiness
of the ship when she began the voyage not hav-
ing been questioned in the libel, it must be
taken that she was tight in her deck when she
left Liverpool, and, if she became otherwise
afterwards, that it must have occurred when
^e was at sea. There is no direct proof of it
in the record, nor any cause, from tempest or
storm, from which such an injury to the ship
can be presumed. The burden of proof of such
an allegation is upon the libelants, and the tes^
timony to sustain it must be positive, or so vio-
lently presumptive as to be sufiicient, by the
rules of evidence, to supply the want of direct
proof. Here there is no proof, positive or pre-
sumptive, when, where, or from what cause,
the leaking of the deck happened, or had been
made. None that it had been, or might have
been, occasioned by any straining of the ship
from the storms wnich she had encountered on
her passage. Indeed, that is disclaimed. None
that the oakum with which her decks were
calked had washed out of the seams of it, or
that it had shrunk so as to leave them open.
And it was only suggested that they were op-
ened by the heat of a long summer passage,
and that they could have been recalked after.

The suggestion is in opposition to the proofs
in the case. The ship sailed from Liverpool on
the 26Ui of September, stanch and tight, and
arrived at Valparaiso, on the 26th or the 27th of
January following, just four months and a day
from the time of her sailing. The slight in-

Juries which she suffered from the storm in the
)ay of Biscay, and those encountered off Cape
Horn, wero repaired at Valparaiso. Thence
she went to Honolulu, on the 28th of February,
where she was twenty-four days, and calked
there her top sides and waterways, and she ar-
rived at San Francisco on the 7th June, having
had fine weather all the way from Valparaiso.

62 U.S.

1868.

McEdtlay y. Mobbieh.

343-85A

But it is proYed that the soap could not have
been injured from any leaks in her top sides or
waterways, as the tiers of boxes next to them
on either side were in a better condition than
those which had been piled farther off. These
dates show that the ship had not a lon|i:er pas-
sage to Valparaiso than is usual at the time of
Year when she was making it; also, that it had
been made through different latitudes, without
encountering any great continuous heats-— cer-
tainlY not such as could have had the effect to
displace or shrink the calking of the deck into
leaking, which is not denied to have been eood
and tight when the ship left Liverpool. It is
not probable that such an exposure for so short
a time had forced her deck seams. Besides, it
has not been shown by any reliable testimony
that there had been, at any time when the ship
was on her way to Valparaiso, any leaking from
her deck, or any such afterwards, until her ar-
rival in San Francisco, from which, by any
possibility, the soap) could have been injured
in the way and to the extent it was represented
to have been by some of the witnesses, who ex-
pressed the opinion that there had been leaks in
the deck of the ship, through which salt water
had leaked upon the soap. Indeed, it appears
to us that all of the witnesses who said so, did
it rather by way of inference from the calking
which another witness said had been done to
the ship, and from the condition in which the
soap was, than from an examination of the ship.
The witness Qoodsell, more relied upon than
any other witness to prove the leaks in the deck,
does not do so satisfactorily from the usual ex-
amination made by shipwrights when they are
called upon to ascertain such a fact. He says:
" I found the poop deck, lately calked, leak-
ing on larboard side — six on starboard and one
seam about half on the starboard side, to main
deck. I should think that the waterway seams,
plank shear seams, and one or two seams inside
to main deck, or main deck, looked as if water
had run down into the hold of the ship on both
aides." He adds, he went into the hold of the
ship and examined the under part of the deck.
' ' I saw indications of the deck having leaked
in the wake of the seams I have been speaking
of; they looked as if they had leak^ all along,
but more abaft than forward of the main deck."
This is verv uncertain testimony; more of opin-
ion than fact in it, even as to the calking of
which he speaks, and the result of all that he
says concerning the seams below the deck, has
more of inspection in it than of examination.
The difference between them will readily be
recognized from the positive language of two
other witnesses, who say they examined the
seams of the deck below with their knives, and
found them hard ; one of them adding, it is im-
possible for a man to tell, after two or three
weeks, whether a vessel is newly calked, with-
out trying her seams. Lowry, the stevedore
who discharged the cargo, upon being asked if
he had seen any traces of saU water in the top
of the boxes of the soap, or on the ceiling of
the deck, answers that he had not, buWthat he
saw some places marked with chalk by some
persons; that he tried them with his knife, and
found them perfectly tight. Such is the testi-
mony in the case, concerning the charge in the
libel that the soap had been damaged by leaks
in the deck of the ship, which her captain had

See 21 How.

neglected to have calked. In our opinion, it
is altogether insufficient. Noyes, the port-
warden, who surveyed the ship, savs he could
find no leaks over or above where the soap was,
that he could discover. He also saw no traces
of the deck having been recently calked. In-
deed, there is not a witness who has said that
there were leaks in the deck. Several express
the opinion that there were, from the discolor-
ation of the boxes on them outside, and from
that of the soap in them. Goodsell ventures
further than any other witness to cause such
an impression; but his language is, *' I should
think, "and it * 'looked" to him as if water had run
down into the hold from the waterway seams,
the plank shear seams, and one or two seams
inside, to deck or main deck. This conjectural
way of speaking by a witness must yield to
the positive declarations of Nicholson, Lowry,
and Noyes.

Ha^ng determined that the soap had not
been injured by bad stowa^ or leaking from
the deck, we will now briefly state to what
causes its altered condition should be attrib-
uted. We have concluded that its discolora-
tion and dampness are to bo found in the ac-
knowledged facts and proofs in the cause.
The shipment was made at Liverpool on the
2l8t June, and was on board of the ship for a
year, less fourteen days. After the shipment
and stowage, the ship remained all of the sum-
mer at the dock in Liverpool. She sailed on
the 26th of September. From that time the
ship's hatches were closed until her arrival at
Honolulu, in February. They were then
opened for the purpose of discharging a part
of the cargo which had been shipped for Hon-
olulu. To do that, it was necessary to remove
about three hundred boxes of the soap from
their stowage, and to land them. They were
taken to the ship, re-stowed as they had been
at first, and it does not appear by any evidence
Uiat it had been perceived at Honolulu by any-
one that this upper tier so removed had been
injured, or that the boxes had then any ap-
pearance of water having leaked upon them.
The ship sailed from Honolulu and arrived at
San Francisco on the 7th June. From the day
of her sailing, the 26th September, she was at
no time within such a temperature of heat as
would of itself have impaired the quality of
the soap. From England, in 10** north of the
equator, the average temperature from the
time of her sailing is 62**. Ten degrees north
and south of the equator the average temper-
ature for the months of September and Octo-
ber is 81'.

The average temperature in November is
about 41", and that of Valparaiso is about 62°.
These averages of temperature are taken from
the most approved charts, and are decisive that
the soap has not been injured by the temper-
atures through which the ship passed on her
passage to Valparaiso. From that port the
ship came to Honolulu, a distance not much
short of six thousand miles, in the most favor-
able weather, without encountering heavy seas
or head winds. She made that distance in the
usual time, forty-five or fifty days. Honolulu
is in the latitude of 2r 19' north, longitude
157° 52' west. Nor are the temperatures such
between Valparaiso and Honolulu as could
have produced /my change in the condition of

108

241-244

SUPBBICB COUBT OF 'tOR UkIISD STAlSfl.

Dec Tebk,

the soap. From Honolulu the usual run to
San Francisco is from fifteen to twenty days.
As a general rule, the course of ships bound
from Uie first to San Francisco would be to the
northward of it, to be sure of eood winds.
In the absence, then, of other probable causes,
to account for the change in the quality of the
soap, we must resort to the proofs on the rec-
ord, and from them we have concluded that
the soap was injured by the temperature of the
ship's hold, or what is called the sweat of the
ship, which no mode of ventilation, consistent
with safe navigation, has yet been thought
sufficient to prevent. In this particular the
ship was not more liable from aefective con-
struction to this vapor than merchant vessels
ordinarily are. Uer hatchways were ffood,
the covers for them are not complained of, her
hatch bars and tarpaulings were sufficient, or
they are not denied to have been so; and it
has not been suggested that they were not all
applied to cover the hatchways, and to pro-
tect the cargo from sea water and rain, t^or
is this sweat in ships any mystery to practical
seamen. They term it to be vapor emitted
from the mixed cargoes of ships by the heat of
the hold of a ship, cast o£F sometimes only in
fumes, at other times in steam, which Hhows
itself in the latter case sometimes in drops of
water in the same way as rain is proouced
from vapor. Several of the witnesses— all of
them were accustomed to the sea — say, that
the sweat of this vessel caused the discol-
oration of this soap. Besides, it was a second-
class article, diifermg originally in color from
a first-rate article of the same kind. It is true
that the chemist who analyzed it says that it
had been made of eood materials, and was
well saponified, and he says that sweat is a mere
evolution of water in a state of vapor; and
that the bo;ceB could not have been stained in
that wav, and that they were stained by some
external means. But the proofs in the case
show that there was no leakage in the deck by
which the water could have passed upon them ;
it must yield to the declarations of those wit-
nesses better acquainted than he is, from their
professional acquaintance with the effects of
the sweat of the soap upon these cases. We
unhesitatingly ascribe the discoloration and
dampness of the soap to the rocking of the
ship, the nature of the compound of soap, and
to the lon^ agitation of the soap in the boxes
to which It had been subjected in a boisterous
passage. The devaporation of water from the
vapor of the soap itself, with which it is
cleansed in the making, heated by the sweat of
the ship, would be concentrated in the boxes,
upon the soap, and would discolor it and make
it damp, without any sensible diminution of
its weight; and we are confirmed in this con-
clusion by the witnesses who examined and
weighed it, having testified that the boxes
were of the same weight marked upon them
when they were shipped at Liverpool. We
feel bound to notice one point made in the ar-
gument of the cause by the counsel of the ap-
pellees, which is not an open question in this
court. It was, that the appellants had no legal
title to maintain their libel. In the case of
Houseman v. The Schooner '*NoTth CaroUna"
16 Pet., 49, the same objection was made.
This court said: "An objection has been taken

104

to the right of the appellee to sue in his own
name, as agent for the consignees, or to sue at
all, as h&B power of attorney from them bears
date after the libel was filed; and it is also ob-
iected, that J. & C. Lawton, the consignees,
had no right to institute proceedings to recover
more than their proportion of the cargo shipped
on their account. No authority has been pro-
duced in support of these objections, and we
consider it as well settled in adfmiralty proceed-
ings, that the a^nt of absent owners may li-
bel, either in his own name, as agent, or in
the name of his principals, as he thinks best;
that the power of attorney, subsequent to the
libel, is a sufficient ratification of what he had
done in their behalf, and that the consignees
have such an interest in the whole cargo; that
they may proceed in this case, not only for
what belonged to them and was shipped on
their account, but for that portion also which
was shipped by Porter, as his own. and con-
signed to them." The same conclusion was re-
peated in 17 Howard (Laioretiee v. Mintum),
without any qualification, as we understand
that case. In the first as well as in the second
of these cases, the point was put on the inter-
est which a consignee has in the consignment,
as consignee, and not as owner of any part of
it; that, from the nature of the contract of a
bill of lading, the consic:nee had a right to
sue, in a court of admiralty, for any breach of
it. Whatever may be the uncertainty con-
cerning the consignee's right to sue in a court
of law, from the confiicting decisions to be
found upon that right, there are none that he
may sue in a court of admiralty in the United
States. When that case, however, occurs in
this court, it will be decided; and we now
merely remark that, from our examination of
most of the cases in the common law reports,
upon the facts of those cases, we have been
brought to the conclusion tliat there is no rule
of general application as to when the consignor
or consignee should bring the suit at common
law, but that it will always be important to
consider in whom the right of property, and
sometimes in whom the right of poEsession,
was vested at the time of the breach of the
contract or neglect of duty which is complained
of.

We direct the affirmance of the decree from
which this a/ppeal woe taken.

Dissenting, Mr. Justice Nelson.

Cited— 1 Black, 525 ; 10 Wall., 11 ; U WalU 109, 8M ;
16 Wall., 424 : 1 Bias., 855 : 1 Brown, 138 ; 5 Ben.. 199 ;
Blatchf ., Prize, 885 ; 10 Blatohf ., 472.

GEORGE SMITH, AppU,

«.

JOHN J. ORTON.

(See S. C, 21 How., 241-244.)

Sale of equitable interest in contestation — qfter
mortgage is paid, mortgagee may be eompelied
to surrender a title.

An equitable interest in oontestation may be tbe
subject of a bona fide sale and transfer by deed.
In toe like manner, that a mortflra^r's equity may
be sold and conveyed.

A/ter a mortfraire debt is disoharved, the mort-
gaffor or his assig'nee may compel the mortffa^ee
or nls assignee to surrender the leval title.

68 U.S.

1868.

Smith v. Ortok.

1^41-244

ArgueiJwn, 14, 18S9, Decided Jan. SI, 1869.

APPEAL from the District Court of the
United States for the District of Wiscon-
sin.

The bill in this case was filed in the court
below by the appellant. The defendant de-
murred. The court sustained the demurrer,
and entered a decree dismissing the bill.
From this decree the complainant took an ap-
peal to this court.

A further statement appears in the opinion
of the court

Meun. J. 8. Brown and J. R. DooUttle*

for appellants.

Meagn. WUliam P. Lyiide» E. Mariner
and R. H« 6iUet« for appellee.

It appears from the bill that the appellant is
the assignee of the interests of Knab, Davis
and Butler, in the premises pending the suit of
Orion v. Knab, 8 Wis., 576, and that a decree
baa been rendered in that case against Knab
and in favor of the respondent, bj a court of
competent Jurisdiction. He is, therefore, bound
by that decree.

Story Eq., sec. 405, 406, cases cited; Mur-
ray V. BaAou, 1 Johns. Ch., 581; Murray v.
LyUmm, 2 Johns. Ch., 441; Orion v. Smith,
18 How., 263.

The appellant has not made a case which
entitles him to relief in a court of equity. We
lay out of the case everything that pertains to
the title acauired directly from Davis. He
held the legal title as trustee for Hubbard, and
at his request conveyed it. That was a dis-
charge of his interest in the premises, and he
does not appear to have acquired any other.
We may also lay Hubbard's title or equity out
of the case.

1. Because it appears that he had no interest
or equity in or to the lands, that this court can
recognize or enforce.

2. If Hubbard had an equitable estate, the
appellant has no assignment of it. He has
only a bare conveyance of the fee, which does
not convey an equitable estate where the
grantor has not the legal title.

Again; if this is a bill of peace, it does not
set forth either a clear legal title or posses-
aion in the appellant. If the appellee has any
title, it is a legal title; and if the appellant has
a l^B;al title, a court of law is the proper forum
to litigate it. If this is a bill to have a trust de-
clared, it contains no averment that the appel-
lee is seised of any legal estate of which to de-
clare him a trustee.

Mr. JugUce Catron delivered the opinion of
the court:

The bill was demurred to, and the demurrer
sustained below, and the facts appear only on
the face of the bill. Davis held the legal title
to the two lots (Nos. 7 and 8) in dispute, lying
in or near the Ci^ of Milwaukee, m the State
of Wisconsin. Davis held the legal title as
truatee for Otis Hubbard. In .June, 1851,
Hubbard, for a good and valuable considera-
tion, conveyed the premises to Joachim Gruen-
hagin, by a deed in fee, by which the CTantee
became seised of the entire interest of Hub-
bard. In December, 1852, Gruenhagin, for a
good and valid consideration, conveved the
premisea to James S. Brown; and in January,

See 21 How.

1858, Brown, for a valuable consideration,
conveyed to the complainant. Smith. The
complainant afterwards also got deeds from
Davis and Knab.

Hubbard had sold two other lots in Milwau-
kee to one Schram, the title to which was out-
standing in the names of persons residing be-
yond the State of Wisconsin. Schram re-
quired security for the title from Hubbard.

Butler, a relation ol Hubbard, got Knab to
give a bond for title, binding himself Jointly
with Butler, as security to Schram.

To secure himself against loss for his under-
taking to Schram, Knab required of Hubbard
security to indemnify him, should Hubbard be
unable to make a title to the lots sold to
Schram: and Hubbard got Davis, who held
the legal title to the lots, to conve^r them td
Knab, as security and for no other consideration.

On the same day (22d of July, 1848) that the
title bond to Schram was made, Knab execut-
ed to Butler a bond covenanting that if Butler
would procure the deed from the trustees of
Hubbard, and comply with the bond to Schram,
he (Knab) would convey the lots to Butler, for
which he held Davis's deed. Butler failed to
procure the deed, and Hubbard did so himself.

In March, 1851, Butler assigned Knab's
bond to Orton, the respondent.

Hubbard never received any consideration
whatever for the lots thus transferred ; and it
is alleged that the bond from Knab to Butler
was a secret and fraudulent contrivance on
the part of Butler, to cheat Hubbard and ob-
tain his property, and that he was defrauded
thereby.

Smith obtained a deed for the lots from
Davis, and also one from Knab; but as Davis
had no interest, having long previously convey-
ed to Knab, nothing pass^ by his deed, un-
less, as is assumed by the bill, an equity of re-
demption resulted to Davis.

And as Orton had filed a bill in a state
court against Knab, which was pending when
Smith took his deed from Knab, and as Knab
was not allowed to disavow his own bond,
Orton got a decree against Knab for a convey-
ance of the legal title (which conveyance was
regularly made), and therelfore the deed from
Knab to Smith was of no value. Having been
made whilst the suit was pending, it could
only have any useful effect on the contingency
of Knab's successful defense.

Orton having succeeded, his decree related
to the commencement of the suit, and ^ve
him the elder and better legal title, Smith's
deed bein^ *' subservient to the rights of the
partis in Utigation." 1 Story's Com., Eq., sec.
406.

Orton has the legal title, beyond dispute.
Smit^ is asserting Hubbard's equity and Davis'
right of redemption; and prays by his bill,
among other thinfi;8, " that Orton be decreed
to release to him (Smith) all claim or interest in
said lots."

Neither party has, or ever had, actual pos-
session of the premises; nor is this of an^ con-
sequence, as the contest is for the legal title.

Butler certainly had neither a legal nor equi-
table interest In the property when he sold to
Orton. He held Knab's title bond, with full
knowledge that Knab held as trustee for Hub-
bard. And this bond was assigned to Orton,

106

184-195

Bttpbbmb CoxmT of thb Unitbd STATsa.

Dbc. Tkric,

who, according to the allegations of the bill,
took it with Hubbard's equity inhering to it.

What effect Orton's decree f^ainst Enab
may have to protect Orion under the legal
title, on a plea of bona fide purchaser of an
equity, we decline to decide; nor will we dis-
cuss the question, as this cause may again
come before this court, and involve that ques-
tion.

The remaining question for consideration is
whether Smith can be heard in a court of
equity, being an assignee of an equitable inter-
est in contestation.

Gruenhagin purchased and took a deed for
Hubbard's equity, and was clothed with his
interest before any litieation was instituted af-
fecting the title. And as neither Gruenhagin,
Brown, nor Smith, were parties to the suit of
Orton a^|ainst Knab, the decree a^nst Knab
did not in anywise impair the equity obtained
from Hubbard, who, likewiBe, was no party to
that suit and who had conveyed to Gruen-
hagin before it was commenced.

Hubbard's equitable title being distinct from
the legal title in controversy between Orton
and Knab, no reason existed why it should not
be the subject of a bona fide sale, and transfer
by deed, in like manner that a mortgagor's
equity mav be sold and conveyed. After a
mortgage debt is discharged, the mortgagor or
his assignee may compel the mortgagee or his
assignee to surrender the legal title. And
that'' is substantially the case the bill makes;
for after Hubbard satisfied Schram's bond
made for title by Enab and Butler, Enab held
the naked legal title, with an undoubted right
in Hubbard to call for its surrender. And his
assignee stands on the same footing. 4 Eent's
Com., 157. And so the statutes of Wisconsin,
in effect, provide. Revised Statutes of 1849, ch.
69, sec. 7, ch. 77, sees. 6 and 7.

We are of the opinion that the court below
erred in sustaining the demurrer to the bill,
and order the decree to be reversed, and re-
mand the cause, with directions that the Dis-
trict Ck)urt proceed in it according to the 84th
rule, of this court, governing chancery pro-
ceedings.

THE BRIG *'JA8. GRAY." WM. GUSHING
BT AL., Owners, Libta, and Appts,,

THE OWNERS OP THE SHIP "JOHN
FRASEU," AND THB STEAMER '*GEN-
ERAL CLINCH."

(See 8. C, How., 184-105.)

CoUision — local ha/rbor regulations — vessel's Ught
— duty to shouh-^uty ofstea/mer Tiavivg vessel
in tow — nonUdbUUy of tow, for eolUsion.

Local authorities may prescribe at what wharf a
vessel may lie, and for now lon^; when she may
load and unload; where she may anchor in the har-
bor, and for what time, and what light she may dis-
play at night.

Note.— OiUiffton. RightJiofsteamandsaiOinQvesgeis
with reference to each other , and in pcuslng and meet"
ing. See note to St.. John v. Paine, 51 U. 8. (10
How.), 557. CoUision. Rides for avoiding, steamer
meeting stMuner. Williamson v. Barrett, 64 XT. 8.
(13 How.), IQL

106

When the litfht of a brig differed In character and
place from the one which the regulations and
usages of the port required ; held, that she commit-
ted a fault which justly subjected her to damages
for the collision.

When she was at anchor at a place where vessels
were continually passing, it was her duty to show
at night the usual sicr nal light of a vessel at anchor

It was the duty of the olBoers to see that the light
was securely and properly fastened, so as to pre-
sent the bright sides to the incoming vessels.

It was especially the duty of the officer In com-
mand of the steamboat in a crowded harbor, when
his tow was following him at the rate of six or sev-
en miles an hour, to have scanned carefully the
surrounding objects ^before he cast loose the tow-
line, and to see that there was nothing in the way
of the tow which she could not avoid by means of
her own rudder, without the aid of the steamboat,
and also to have given reasonable notice of his in-
tention, in order that she might prepare to take
care of herself.

The steamer having the tow held answerable, as
well as the brig,f or the consequences of this disaster.

The tow was the rex or thing which struck the
brig, and did the damage. But the mere fact that
one vessel strikes and damages another, does not of
itself make her liable for the injurv ; the collision
must in some degree he occasioned by her faults

The loss must be equally divided between the
brig and the steamer.

Argued Dec. SI, 1858, Decided F^. 3, 1859.

APPEAL from the Circuit Court of the
United States for the District of South
Carolina.

The libel in this case was filed in the District
Court of the United States for the District of
South Carolina, by the appellants against the
ship John Fraser and the steamer General
Clinch to recover damages sustained in a col-
lision.

The said court entered a decree dismissing
the libel against the steamer, but sustaining it
against the ship.

The Circuit Court, on appeal, reversed this
decree against the ship, and entered a decree
dismissing the libel; whereupon the libelants
took an appeal to this court.

^A further statement of the case appears in the
opinion of the court.

Messrs. C. Cushin^ and R. H. Oillet» for

appellants:

1. Damages for collision are awarded in ad-
miralty, where blame is attributable to the ves^
sel charged as wrong-doer alone, or where both
the vessels are in fault.

Conkl. Adm., 299.

2. When there has been a want of djligence
or skill on both sides, the loss must be appor-
tioned between the parties in equal moieties.

Abb. Ship., 803; The Woodrop Sims, 2 Dod.,
83; The Monarch, 1 W. Rob., 21; 3 Kent's
Com., 271; Story Bail., sec. ft08; Stroutv, Fos-
ter, 1 How., 89; Beeves V. The Constitution,
Gilp.,679; The Catharine v. Dickinson, 17 How.,
170; ITie Scioto, Davies, 359; 6 McL.. 221. 229.
252.

8. The neglect of the rules of proper man-
agement by one party, will not dispense with
the exercise of ordinary care and caution by the
other.

Abb. Ship., 311, 312.

4. A vessel in motion is bound. If possible,
to steer clear of and avoid a vessel at anchor.

The Oirolamo, 8 Hagg. Adm., 169; The Bol-
ides, 8 Hagg, 867; The Neptune, 1 Dodd Adm..
467.

6. Vessels propelled by steam are required to
take all poaaiole care, by the use, if necessary,

•8 U. S.

1858.

Thb James Gray y. Thb John Fbasbb.

184-195

of all the means which they possess, to run
* clear of sailing Yessels.

The Fashion v. Ward, 6 McL., 152. 175; Tha
Perth, S Hagg.. Adm., 414; The Shannon, 2
Hagg., Adm., 173; 8t. John v. Paiiia, 10 How.,
557.

6. A steam Yessel passing another vessel,
whether a steamer or sailing vessel, in a narrow
channel, must always leave the vessel she Is
passing on the larboard hand.

Conkl. Adm., 810; N. Y. Rev. Stat., part 1,
Title 10, sec. 1; 2%« Friendu, 1 Rob., 485;
Warinff v. Clarke, 5 How.. 502; 8i. John v.
I\une, 10 How., 550; TheMonttceOov, MoUieon,
17 How., 152.

7. If a steam vessel meet a sailing vessel, and
the latter be steering wrong, the former has
DO right to disregard that, but is to make the
reouisite change of her own course.

i'he Hope, 1 W. Rob., 154. 157; Oeneeee
Chief V. FUzhugh, 12 How., 448.

8. Vessels generally, but especially steamers,
are held to constant and vigilant lookout.

17 How.. 170; 18 How., 584; 20 How., 588;
12 How., 443. 462.

9. The damages, if due, are awarded against
the vessel wrong- doer and her owners.

Story, Bail, ^; Conkl. Adm., 299; 1 Hagg.,
Adm., 109, 121.

10. The presence of a branch pilot on board
of either the tug or tow, does not diminish the
responsibility o? the master and owners.

Denisonv. Seymour, 9 Wend., 1.

11. In case a vessel in tow of a tug, collides
with another vessel to her injury, the tow is re-
sponsible as the immediate wrong- doer, but the
Kms^ also is in fault. This independently of
questions of redress or contribution, as between
the tow and the tug.

The Express, Olcott, 268; Blatchf., 805.

The counsel then reviewed the testimony in
the case, and endeavored to show that under
the above principles The Clinch and The John
Fraser were both in fault and liable, while
The James Gray was free from fault.

The relation of the city ordinance to the
case, is without consequence in law.

18 How.. 223. 570, 584; 17 How.. 155, 154;
20 How.. 543, 541; 19 How., 108, 241; Conkl.
Adm., 810.

Messrs, Brown and Porter, for the ship
John Fraser:

The appellants are not entitled to recover
damages claimed, as the collision was occa-
sioned by the misconduct of the suffering par-
ties alone.

Stnmt V. Foster, 1 How., 90; Tits Seioto, Da-
vies, 359; Abb. Ship., 815; Morrison v. Steam
Navigaiion Company, 20 £ng. L. <& Eq., 455.

The James Gray was Iving in a narrow pass
or thoroughfare in the harbor of Charleston
from the Ist to the 5th February, inclusive,
without urgent necessity, contrary to the gen-
eral law maritime and the established port regu-
lations.

Strout V. Foster, 1 How., 90; Ihe Seioto, Da-
viea. 859; 1 and 2 Port R^^lations.

The counsel further reviewed the testimony,
to show that The James Gray was in fault, and
cited also the authorities.

Spraul V. Hemmingway, 14 Pick., 1; 2 Am.
Law Jour., 387; The Christina, 8 Wm. Rob.,
87; 6 Wheat, 811.

806 91 How.

Mr, Nelson Mitehell» for The General
Clindi:

On the question of the location of The James
Gray, the counsel cited the case of Valentine v.
CleugJ^, 29 Eng. L. & Eq., 54.

He also argued that the light displaye.l was
not of a proper character, ana concluded : In no
view of the evidence, it is submitted, can there
be a decree against the steamer in these pro-
ceedings, which are in rem. There was no col-
lision with the steamer, nor was she the ma-
terial instrument of anv damage or injury to
the brig. The relation of principal and
agent is exclusively personal, and cannot exist
between things. When a vessel is towed by a
steam-tug, the latter is in the employment and
under the control of the former.

The Christina, 8 Wm. Rob., 27.

Mr, C7Af«fc/iM^tic0 Taney delivered the opin-
ion of the court:

This is a case of collision in the port of
Charleston, in South Carolina.

The brig James Gray took on board a valua-
ble cargo at Charleston, destined for Antwerp,
and in the prosecution of her voyage hauled off
from the wharf into the stream and anchored
on the 1st of February. 1856. The place where
she anchored was in the harbor, and was the
place where vessels bound out usually an-
chored for a short period, to make their final
preparations for sailing on their voyage. It
was. however, a thoroughfare for vessels oound
in, and through which thev were almost con-
tinually passing. She remained there until the
collision took place, which happened on the
night of the 5th of the month above mentioned,
al^ut seven o'clock, shortly after daylight had
disappeared. On that evening The John Fra-
ser came in from sea, in tow of The General
Clinch. The latter was a steamboat, occasion-
ally employed in towing vessels in and out of
the harbor, and was properly fitted and manned
for that purpose. There was ample room on
both sides of The James Gray for the tue and
the tow to have passed with safety, if The
James Gray had b^n seen in time. But she
was not seen, either from The General Clinch
or The John Fraser, until the steamboat was
abreast of her. and at the distance of not more
than forty or fifty fathoms. « She was then,^for
the first time, seen by those on board The Gen-
eral Clinch, which had just before, and almost
at the same moment, cast off the hawser by
which she was towing The John Fraser. The
towins line was about fifty fathoms in length,
according to the testimony of the pilot of The
General Clinch, and was attached to the lar-
board bow of the tow, and it was cast off by
The General Clinch without any previous no-
tice of the intention to do so at that particular
moment; and it appears to have been alto-
gether unexpected on board The John Fraser.
And as soon as she was cast off, and not before,
those on board of The John Fraser, for the first
time, discovered The James Gray directly
ahead, and upon which she was running. She
endeavored to avoid her by putting her helm
hard to starboard, in order to pass on the same
side and in the wake of the tug; her speed,
however, from the tide and the impulse she
had received from the steamboat, was then
about six knots an hour; and she reached the

107

184-195

SuFfiSHB COUBT 09 TfiS UniTISD StATBA.

Dbg. TsRic,

brig before her course could be sufficiently
changed to avoid a collision. The rigging of
The John Fraser became entangled in the m)w-
sprit of the brig, which it carried away, and
caused other damage to the vessel to a serious
amount

So far the facts are undisputed; we come
now to the points in controversy.

The libel is filed in rem by the owners of The
James Gray against the ships above mentioned,
alleging that she was free from fault, and that
the damage was occasioned altogether by their
negli|^nce and mismanagement, and claiming
the right to charge them with the whole amount
of the loss sustained.

The owners of The John Fraser and the own-
ers of The General Clinch answer separately,
each of them charging the misconduct of The
James Gray as the cause of the disaster, but
each of them also imputing some degree of
blame to each other.

They charge against The James Gray that
she was lying in a thoroughfare in the harbor,
in violation of the local port regulations, and
without the light that these regulations re-
quired. And they produce two ordinances of
the corporate authorities of the City of Charles-
ton, on§^ of which provides that no vessel
shall lie m this thoroughfare for more than
twenty-f our hours, and inflicts certain penalties
for every disobedience of this ordinance; and
the other requires all vessels anchored in the
harbor to keep a light burning on board from
dark until daylight, suspend^ conspicuously
midships, twenty feet high from the aeck.

The power of the city authorities to pass and
enforce these two ordinances is disputed by the
libelants. But regulations of this kind are nec-
essary and indispensable in every commercial
port, for the convenience and safety of com-
merce. And the local authorities have a rie^ht
to prescribe at what wharf a vessel may lie,
and how long she may remain there; where she
may unload or take on board particular car-

?^oes; where she may anchor in the harbor, and
or what time; and what description of liffht
she shall display at night to warn the passmg
vessels of her position, and that she is at anchor
and not under sail. They are like to the local
usages of navigation in different ports, and
every vessel, from whatever part of the world
she may come, is bound to take notice of them
and conform to them. And there is nothing in
the regulations referred to in the port of Chanes-
ton which is in conflict with any law of
Congress regulating commerce, or with the
general admiral tv jurisdiction conferred on the
courts of the United States.

Yet. upon the evidence before the court, we
do not think The James Gray ought to be re-
garded as in fault, by remaining at anchor in
the harbor bevond the time limited in the city
ordinance. She was seen there by the harbor-
master day after day, without being ordered to
depart ; nor did he seek to inflict the penalty.
The object of this regulation was obviously to

Erevent thiB thoroughfare from being crowded
y vessels at anchor, which would make it in-
convenient or hazardous to vessels coming into
the port. And from the conduct and testimony
of the harbormaster, it may be fairly inferred
that thiB regulation was not strictly enforced
when the thoroughfare was not overcrowded,

108

and that single vessels were sometimes per-
mitted to remain beyond the time fixed by the
ordinance, without molestation from the city
authorities. And this lax execution of the reg-
ulation would soon become a usage in the port,
and will account for the indiJfference with
which the harbormaster saw her lying there
three days beyond the limited time, without
even remonstrance or complaint. He appears
to have acquiesced. And if this was the inter-
pretation of the ordinance by the local author-
ities, it ought not to be more rigidly interpreted
and enfor^ by this court.

But the omission of the light, prescribed by
the regulation, stands on different grounds.
There was certainly no acquiescence of the
local authorities in that respect; and, upon the
testimony, it is a matter of dispute whether she
had any light or not. That question will be
considered hereafter. But it is admitted on all
hands that she had not a light suspended con-
spicuously midships, twenty feet above the
deck, as the regulation requires; and the light
which she alleges she used was not the ordi-
nary globe lamp used by vessels at anchor, but
a lantern of triangular form, with one side
dark, and the light shining only through the
other two. and wnich, consequently, could not
be seen by those who approached on the dark
side. The ordinance obviously contemplated
the usual signal light of a vessel at anchor,
which is bright on every side, and can be seen
by those who are approaching from any direc-
tion. And as the regulations of the port re-
quired a light of this kind, suspended in the
manner hereinbefore mentioned. The James
Gray could not be justified in disregarding this
regulation, and substituting a light of a differ-
ent description, and placed in a different part
of the vessel. Those who were coming into
port had a right to presume that a vessel an-
chored in this thoroughfare would have the
light prescribed by the port regulations. They
would look for no other, nor expect to find a
vessel in their way without one, and might be
misled as to the exact position of the vessel, if
a light of a different character were shown or
hung up in a different place. And as the light
of the brig (if she had one) differed in charac-
ter and place from the one which the regula-
tions and usages of the port required, and
which incoming vessels would look for, she
committed a fault which justly subiects her to
damages for the collision. She had not taken
those means to avoid it which the regulations
of the port in which she was lying required
and prescribed.

But, apart from the regulations of the local
authorities, we think The James Gray was in
fault upon the established principles of mari-
time law. She was at anchor at a place where
vessels were continually passing. It was her
duty, therefore, to show at night the usual sig-
nal light of a vessel at anchor — that is. a globe
lamp, or one without any dark side to it, which
could be seen from an^ direction, and huna:
high enough in the rigging to be seen at a dis-
tance.

The witnesses who werci on board of The
(General Clinch and The John Fraser say she
had no light of any kind immediately biefore
and at the time of the collision ; and in this
they are supported by the testimony of other

68 U. 8.

1^58.

Tiis jAicBfl Gray y. The Johh Faabeb.

184-195

witneaaes who were obserying her abou^ the
same time. But those who were on boanl of
The James Qray testify to the contrary, and
their testimony is confirmed by others; and we
think that, upon the whole evidence, the just
conclusion is that she had a lieht, in a lantern
of triangular form, with one dark side, hang-
ing on the fore swift sure, twenty feet and some
inches above the deck. The fore swift sure is,
we understand, the foremost rope of the fore-
mast shrouds.

Now. a light of this description is not ordi-
narily used as a signal light for a vessel at an-
chor; but is used at sea, fastened at the bow-
sprit, with the opaque side to the ship, so as to
throw a strong light ahead. And it is obvious
that such a lantern, fastened to a single rope at
the top only, and more than twenty feet from
the deck, would be liable to waver, from the
motion of the vessel as she was riding at an-
chor, and to turn its dark side sometimes in one
direction and sometimes in another; and if such
a light was used as a signal light, it was more
especially the duty of those in charge of the
brig to see that the lamp was securely fastened,
so as to present its bright sides in the direction
in which vessels were likely to approach.

But this is not proved to have been done. It
ja true that one of the witnesses for the libel-
ants (Wycoffe) says it was securely fastened at
the top and the bottom, with the dark side to
ihe stern. This may have been the wav in
which it was usually fastened, but none oi the
witnesses examined by the libelants know how
it was fastened that night. Wycoffe does not
appear to have even been on deck when it was
pat up. It was put up by a boy; and when
the light appeared dim after the collision, Wy-
coffe says he started to take it down ; but the
boy was too quick for him, and took it down
and trimmed it.

The second mate, who gave the order to the
boy to put it up, went below to his tea immediate-
ly afterwards, without waiting to see that his
order was properly executed ; and the first mate
went down with him; and no one but this boy
appears to have known how it was fastened to
the rope that night. He was not examined as
a witness, nor is his name mentioned. They
speak of him as " the boy," and we think it was
great want of care on the part of the officer in
charge of the deck to confide this important
duty to the heedlessness of a boy. His age Is
not stated, nor his previous pursuits, nor now
long he had been on board, nor his knowledge
or fitness for the duty intrubted to him. The
place where the brig was anchored, and the
character of the light they were about to dis-
play, made it the more imperatively the duty
of the officers to see that it was securelv and
properly fastened, so as to present the bright
sides to the incoming vessels, as she was in
most danger of being run into by them. But
without the testimony of the boy who put it up
and took it down, or any proof of his age and
character, from which it might be inferred that
the duty was well and faithfully performed,
the court cannot say that a sufficient light was
displayed to warn vessels coming into the har-
bor that she was at anchor in this thorough-
fare.

Indeed, the Just inference from the testi-
mony would be otherwise; for if the lantern

See 21 How

was carelessly hung, and liable to move to some
extent from one to the other, so as at one mo-
ment to present its bright side, and a moment
after its dark side in the same direction, it
would account for the difference in the testi-
mony of different witnesses, who looked at her
from the same point of view, some testifying
that she had no light and others that she had a
very bright one. '

Independently, therefore, of the local regu-
lations, The James Gray, upon the general
principles of maritime law and usages, cannot
be acquitted of negligence, and must aliare in
the. loss.

But the conduct of those on board of The
General Clinch was equally culpable. For if, as
they contend, the brig showea no light, or if
the dark side of the lantern was turned towards
her when she was approaching, yet it is satis-
factorily proved thac the night was lif^ht enough
to have enabled her to see the bng at a dis-
tance abundantly sufficient to pass with her
tow without danger to either, and that she
must or would have been seen with a proper
lookout.

The General Clinch was not under the con-
trol of the captain of The John Fraser, but
under the command and direction of her own
pilot, who was substituted for her regular cap-
tain, who was not on board. She could select
her own coui*se and her own rate of speed,
and was bound to keep a vigilant and compe-
tent lookout in the thoroughfare in which ves-
sels so frequently anchored. But there is no
proof to show that this was done. The three
hands who were at the stern of the steamboat,
awaiting the order to cast off the hawser, were
certainly not lookouts. The pilot who was in
command had his attention drawn to other
matters, and was preparing to give the order to
cast loose the hawser, and in communicating
with the ship he had in tow. It is said, indeed,
that there were two of the crew in the forward
part of the vessel, whose duty it was to keep a
lookout; but, being colored persons, they could
not, by the laws of South Carolina, be exam-
ined as witnesses. But the law requires of a
colliding vessel that she shall prove not only
that she had a competent lookout stationed at
the proper place, but also that the lookout was
vigilantly performing his duty. And if she
placed there persons who cannot be witnesses,
ft is her own fault; it was her own voluntary
act, and can therejfore be no sufficient reason
for the absence of that proof which the law re-
quires her to produce.

It was especially the duty of the officer in
command oi the steamboat, m a crowded har-
bor like that, when his tow was following him
at the rale of six or seven miles an hour, and
her course necessarily directed by the steam-
tug, to have scanned carefully the surrounding
objects before he cast loose the tow-line, and
to see that there was nothing in the way of the
tow which she could not avoid bv means of
her own rudder, without the aid of the steam-
boat, and also to have given reasonable notice
of his intention, in order that she might pre-
pare to take care of herself. But this was not
done. He suddenly let go the towing line,
without notice or warning to The John Fraser.
And the moment after he had done so, and not
before, he finds his own vessel almost aboard

1Q9

244,248

BUFBEMB OOUBT OV THB UlfflTBD BtAIBB.

Dbo. Tsbx,

of a vessel at anchor, and the head of The John
Fraser, under the direction and impulse his
ship had given her, directed upon the anchored
vessel, and too near to avoid a collision when
she had lost the aid of The (General Clinch.

This state of things could not have happened
without great want of care on the part of the
steam tug. Indeed, this negligence is appar-
ent from the testimony of the pilot himself,
who was acting as captain. He says his sta-
tion was on the wheel-house; and that after he
let go The John Fraser, he had just time to
walk from the bow to the aft part of the steam-
er, when he saw The Gray. She was not,
therefore, first seen from the wheel-house or the
bow, but from the stem of his. vessel, when he
was nearer to her than he was to the ship he
was towing. The stem of the vessel is not the
first place from which The James Gray would
have been seen, if the wheel-house was a
proper place, and he had performed there the
duty of a lookout. And as regards the two
hands which he states were forward as look-
outs, they appear never to have seen the brig
until after she was discovered by the pilot from
the stern, when in the act of passing her bow,
for they gave no notice of a vessel ahead, and
do not appear to have seen her before her prox-
imity was announced by the pilot. If sta-
tioned forward as lookouts, it is very clear that
they were not performing that duty, and the
collision was the natural consequence of their
negligence; for The James Gray was plain!}'
seen from The John Fraser the instant the
steam-tug dropped the tow-line and tumed out
of her way; and as the tow-line was fifty
fathoms long, the steamboat could unquestion-
ably also have seen her as she approached her,
at least at that distance ahead, as well as from
Uie stern ; and If she had been seen even at
that distance, and The General Clinch had
held on to the hawser, she could have carried
The John Fraser safely past, and without
danger.

And upon such proofs of negligence and of
want of proper caution, the court is of opinion
that The General Clinch is justlv answerable,
as well as The James Gray, for the conse-
quences of this disaster.

So far as the ship John Fraser is concemed,
we see nothing in the evidence from which any
fault or mismanagement can justly be imputed
to her. According to the usage of trade at
that port, she engaged a steamboat, well ac-
quainted with the harbor and its usages, to
brin^ her in. When fastened to the hawser,
and m tow, she was controlled entirely by the
steam-tug, both as to her course and speed.
The steamboat was not subject to the orders of
the commander of The John Fraser, but was
altogether under the control and direction of
her own commander for the time. A lookout
on board of The John Fraser would be of little
or no value,- for the view ahead was obstructed
by the steam-tug, and she could do nothing
more than watch the motions of the steamboat,
and use her own mdder, so as to keep her as
nearly as might be in the wake of the tug to
whicn she was attached. She had a right to
suppose that a proper lookout would be kept
by the steamboat, and that she would not be
led into dangers from which no effort on her
part would enable her to escape. And she was

110

brought into this dangerous proximity to The
James Gray, and then cast loose, under cir-
cumstances which rendered a collision inevi-
table; and she was driven against the vessel at
anchor altogether by the direction and im-
pulse which she received from the controlling
power of the steamboat, and not by any act or
ne^li^nce or mismanagement on her part.

It IS, indeed, said by some of the witnesses,
that if she had put her helm to the larboard, in-
stead of the starboard, as soon as she was cast
off, she might have passed in safety on the
other side of The James Gray. But the weight
of the proof is clearly to the contrary; and we
are convinced that she adopted the only chance
for safety, by putting her helm to starboard,
and endeavonng to pass on the same side that
the steam- tug had passed.

It is tme. that The Tohn Fraser was the rett
or thing which struck The James Gtay and
did the damage. But the mere fact that one
vessel strikes and damages another does not of
itself make her liable ror the injury; the col-
lision must in some degree be occajsion^ by
her fault. A ship properly secured may, by
the violence of a storm, be driven from her
moorines and forced against another vessel, in
spite of her efforts to avoid it. Yet she cer-
tainly would not be liable for damages which
it was not in her power to prevent. So also
ships at sea, from storm or darkness of the
weather, may come in collision with one an-
other, without fault on either side: and in that
case, each must bear its own loss, although
one Is much more injured than the other.
This was decided by this court in the case of
Stainbaek el. al. v. Itaeet. cU., 14 How., 582;
and the decision placed upon the ground that
neither of them had committed a fault, and
could not, therefore, justlv be charged with any
portion of the injury which the ouier had sus-
tained. And as this collision was forced upon
The John Fraser bv the controlling power and
mismanagement of the steam-tug. and not by
any fault or negligence on her part, she ought
not to be answerable for the consequences.

The result of this opinion is, that the loss
must be equally divided between The James
Gray and The General Clinch, according to the
rule laid down by this court iu the case of The
Schooner Catharine et al, v. Dickinson etcU., 17
How., 170.

The decree of the Circuit Court w, therefore^
reversed; and the ease remanded, with direc-
tions to adjust the loss upon (Jte principles stated
in this opinion.

We do not assent to so much of this opinion

as makes The James Gray liable for negligence,

merely for want of exact conformity to port

regulations. S. Nelson.

R. C. Grieb.

Nathan Clifford.
Cited-18 Wall., 65.

RUFUS ALLEN bt al., ZiM». and Appts.,

HENRY L. NEWBERRY, claimant of the
Steamboat " Fashion," &c.

(See S. C, 21 How., 244-2i8.)

Admiralty jurisdiction on the lakes — shipment
between ports of same State,

62 V. S.

185S.

Allen y. Newbebby.

244, 248

The Act of OoDffreaa of ttth of February, 1846,
puMOilblDf^ and regulattngr the JurlBdIotioa of the
federal courts In admiralty upon the lakes, oon-
flnes that Jurisdiction to "matters of contract
and tort, arising in, upon, or ooncemingr steam-
boats, and other vessels" employed in business of
eommeroe and navigation between ports and
places in different States and Territories upon the
lakes.

In suit upon a contract of shipment of croods be-
tween ports Mid places of the same State, the Dis-
trict Court has no jurisdiction in admiralty ; such
Jurisdiction belonirs to the courts of the State.

Argued Dee, 7, 1858, Beaded Feb. 8, 1859,

APPEAL from the District Court of the
United States for the District of Wiscon-
sill.

The libel in this case was filed in the court
below, by the appellants, to recover damages
resulting from an alleged breach of contract of
affreightment.

The court below having dismissed the libel,
the libelants took an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Mr, S. O. Haven* for appellants.

Me»r$. R. H. Oillet and Alfred Rumell,

for appellee.

Mr, Justice Nelson delivered the opinion of
the court:

This is an appeal in admiralty from a decree
of the District Court for the District of Wis-
consin.

The libel states that the goods in question
were shipped on board the F^hion at tne port
of Two Rivers, in the State of Wisconsin, to
be delivered at the port of Milwaukee, in the
same State, and that the master, by reason of
negligence and the unskillful navigation of the
vessel, and of her unseaworthiness, lost them
in the course of the voyage.

The respondent sets up, in the answer, the

seaworthiness of the vessel, and that the goods
were jettisoned in a storm upon the lake.

The evidence taken in the court below was
directed principally to these two grounds of
defense ; but, in the view the court has taken
of the case, it will not be important to notice it.

The Act of Congress of 26th February,
1845, prescribing and regulating the jurisdic-
tion of the federal courts in aSmiralty upon
the lakes, and which was held by this court in
the case of The Oeneeee Chief v. FUzhugK 12
How., 448, to be valid and binding, confines
that jurisdiction to '' matters of contract and
tort, arisinff in, upon, or concerning steam-
boats and oUier vessels " ♦ ♦ ♦ "employed
in business of commerce and navigation be-
tween ports and places in different States and
Territories upon the lakes, and navigable
waters connecting said lakes," &c.

This restriction of the jurisdiction, to busi-
ness carried on between ports and places in
different States was doubtless suggested by the
limitation in the Constitution of the power in
Congress to regulate commerce. The words
are: "Congress shall have power to regulate
commerce with foreign nations and among the
several States, and with the Indian tribes."
In the case of Gibbons y, Ogden, 9 Wheat., 194,
it was held, that this power did not extend to
the Durely internal commerce of a State.
Chief Justice Marshall, in delivering the opin-
ion of the court in that case, observed: "It is
not intended to say that these words compre-
hend that commerce which is completely inter-
nal, which is carried on between man and man
in a State, or between parts of the same State,
and which does not extend to or affect other
States." Again, he observes: "The genius
and character of the whole Qovernment seem
to be, that its action is to be applied to all the
external concerns of the nation, and to those
internal concerns which affect the States gen-

VoTK.— Ebb andpvwof tide^cuto civil and criminal
jwindietion. See note to U. 8. v. Bevans, 16 U. S.
(3 Wheat.), 896; and note to The Thomas Jefferson,
a U. S. (10 Wheat.), i28.

Tr> WTiat places the juriadietion of Admiraity Is
confined.

It is laid down as a general rule in common law
books, that the admiral's Jurisdiction is confined to
matters arisinar on the high seas« and that he can-
not take conusance of contracts, &c., made or done
in any river, haven or creek, within any county ;
and that all matters arisfnir within these are triable
by the common law. i Inst., 137-140; DSCk>., 180;
Moor., 12S, 882 : Godb., 261 ; 2 Sid., 81 ; Hob., 79, 212 ;
ISCOm S&i 2 Brownl., 10,87; 2 Bulst., 822; BoU. R..
188.

The term. ** high seas *' has been variously de-
fined, viz.: '' It is no part of the sea where one
may see what is done on the other side of the
water. 4 Inst, 140; 141 : 12 Co ^ 80 ; Moor., 892. What
is within the body of the county Is no part of the
sea. 4 Inst., 140. Admiralty court cannot hold
plea of a thing done upon the River Tliames. l>e-
cause done within the body of a county. BoU.
Abr., 681; Owen, 122; 2 Brownl.. 87; Leon., 106;
Moor., 916 ; 2 Roll. R.. 418. Nor of a matter arising
at Limetiouse. Cro. Jac, 614; 2 Roll. lUp., 49;
Moor.« 891. Such place as is covered with salt
water is mare aUum. Owen, 128. See note to V. S.
V. Wlltberger, 18 U. 8. (5 Wheat.), 76.

It hath been resolved, that between the high and
low water mark, the common law and admiralty
lave imperium dfvfeum, the one when it is not, and
the other when it is, covered with water. Sir
Henry Constable's case, 6 Co., 107: And., 89; 8
Inst.. 113 : 2 Inst., 61 ; U. S. v. Crush, 6 Mason, 290 ;
1 Kent., 837-842 ; u. S. v. Bevans, 16 U. S. (3 Wheat.),
8%, 357, 361, 365-309 ; Beere's case, 2 Leach, C. Ca.,
1093; Ry.ft Russ., 248; U.S. v. Coombs, 87 U.S.

See 21 Uow.

(12 Pet), 72 ; Waring v. Clarke, 46 IT. & (5 How.), 464 ;
1 Bl. Com., 110.

Admiralty jurisdiction extends to all thlnsrs done
on the hiflTD seas. Johnson v. Bales, &o., 2 Paine ,
OOi ; S. C, Van Ness, 5.

The degree of ebb and flow of tide does not affect
the question of Jurisdiction. Any impulse of the
tide Is sufficient. Fesrroux v. Howard, 82 U. 8. (7
Pet.), 824.

In a voyage of 46 miles on tide water and 30 on
canal, admiralty Jurisdiction sustained. The Rob-
ert Morris 1 wall. C. C, 88. See The Orleans v.
The Phoebus 86 U. 8. (11 Pet.), 175.

Collisions in a river where tide ebbs and flows
(also far above tidewater) are within the admiralty
Jurisdiction of U. S., though the locality be within
the body of a county. The English Statutes to the
contrary are not in force here. Waring v. Clarke,
46 U. S. (6 How.), 441 ; Jackson v. the Magnolia, 61
IT. S. (20 How.), 296; The Commerce, 66 U. 8. (1
Black.), 574; N. J. St. Nav. Co. v. Merch.'sB'k., 47 V,
S. (6 How.), 844.

So of collisions on tide water though vessel be
at wharf or pier in harbor. The Lottie, Olc, 329;
Borden v. Hiern, Blatchf. & fl., 283.

The civil Jurisdiction of admiralty, in oases of
contract or tort, embraces tide waters within the
bays, inlets of sea, harbors along sea coast of the
country, and in navigable rivers. U. 8. v. Wilson,
8 Blatchf., 436.

Torts in tide water,in foreign ports, are included.
Thomas v. Lane, 2 Sumn., i; The Bagle, 75 U. 8.
(8 Wall.), 15.

Admiralty Jurisdiction granted by IT. 8. Consti-
tution extends to the navigable lakes and rivers of
U. S. without regard to ebb and flow of tide of the
ocean, and Is not defeated, because the place of the
transaction was written in the body of a county of
a State. Genesee Chief v. Fitzhugh, 58 U. 8. (12

111

244,248

BUFBEMB COUBT OF THB UnITBD BtATBS.

Dsc. Tbbm,

erally, but not to those which are completely
within a particular State, when they do not
affect other States, and with which it is not
necessary to interfere for the purpose of execut-
ing soine of the general powers of the Govern-
ment. The completely internal commerce of
a State, then, he observes, may be considered
as reserved for the State itself, lb., 195.

This distinction in the Act of 1845 is noticed
by the present (JkUf Justice in delivering the
opinion in The Oenesee Chief. He observed:
'* The Act of 1845 extends only to such vessels
when they are engaged in commerce between
the States and Territories. It does not apply
to vessels engaged in the domestic commerce
of a Slate."

This restriction of the admiralty jurisdiction
was asserted in the case of The 2^eto Jerwy
Steam Navigation Company v. The Merchants*
Bank, 6 How., 892. the first case in which the
jurisdiction was upheld by this court upon a
contract of affreightment.

It was then remarked, that "the exclusive
jurisdiction of the court in admiralty cases was
conferred on the National Government, as
closely connected with the ^nt of the com-
mercial power. It is a maritime court, institu-
ted for the purpose of administering the law of
the seas. There seems to be ground, therefore,
for restraining its jurisdiction, in some meas-
ure, within the limit of the grant of the com-
mercial power, which would confine it, in cases
of contract, to those concerning the navigation
and trade of the country upon the high seas,
&c., with foreign countries and among the sev-
eral States.

'* Contracts growing out of the purely inter-
nal commerce of the State, &c., are ^nerally
domestic in their origin and operation, and
could scarcely have been intended to be drawn
within the cognizance of the federal courts."

The contract of shipment in this case was

for the transporation of the goods from the
port of Two Kivers to the port of Milwaukee,
both in the State of Wisconsin ; and upon the
principles above stated, the objection to the ju-
risdiction of the court below would be quite
clear, were it not for the circumstance that
the vessel at the time of this shipment was en-
gaged in a voyage to Chicago, a port in another
State. She was a general ship, with an assorted
cargo, engaged in a general carrying business
between ports of different States; and there is
some ground for saying, upon the words of
the Act of 1845, that the contracts over which
the jurisdiction is conferred, are contracts of
shipment with a vessel engaged in the business
of commerce between the ports of different
States. But the court is of opinion that this is
not the true construction and import of the
Act. On the contrary, that the contracts men-
tioned relate to the goods carried as well as to
the vessel, and that the shipment must be made
between ports of different States.

This view of the Act harmonizes with the
limitation of the jurisdiction as expressed, in-
dependently of any Act of Congress, in the
case of yew Jersey Steamn Navigation Company
V. The Merchants' Bank, before referred to.

We confine our opinion upon the question of
jurisdiction to the case before us, namely: to
the suit upon the contract of shipment of goods
between ports and places of the same State.

The court is of opinion that the District
Court had no jurisdiction over it in admiralty,
and that the jurisdiction belonged to the courts
of the State.

It may be, that in respect to a vessel like
the present, having cargo on board to be car-
ried between ports of the same State, as well as
between ports of different States, in cases of
sale or bottomry of a cargo for relief of the ves-
sel in distress, of voluntary stranding of the
ship, jettison, and the like, where contribution

How.), 443 ; Fretz v. Bull, 88 U. 8. (12 How.), 406 ;
Johnson v. Magnolia, 61 U. 8. (20 How.), 296'; Ray-
mond V. The Ellen Stewart, 5 McLean, 260; Mo-
Oinnis v. Pontiac, 5 McLean, 860; 8. C. Newb., 130;
Eads ▼. The H. D. Bacon, Newb., 274 : Scott v. The
Younir America, Newb., 101 ; Nelson v. Leland, 22
How., 48; Newb., L 107, 443: The Belfast, 74 U. 8.
(7 Wall.), 624 ; The Ea^Us 75 U. S. (8 Wall.), 15 : The
Flora, 1 Bisa., 20 ; Transportation Co. v. Fltzhugh,
66 U. S. 1 (Black.). 574; Hine y. Trem, 71 U. S. (4
Wall.), 656; Ins. Co. v. Dunham, 78 U. 8. (11
Wall.). 1.

Contracts growing out of the internal oommeroe
of a State are not within admiralty Jurisdiction.
Under the Constitution, this Is left to be resrulated
by State authority (Allen y. Newberry, supra;
Maguire v. Card, 68 U. S. (21 How.), 248; nor is a
daiiii, sought to be enforced by proceedings in rtm^
for materials and labor for repair of a steamboat
engaged in runninir upon waters, wholly within the
limits of a State. The Troy, 4 Blatcbf., 855.

When admiralty jurisdiction has once attached,
it is not divested by reason of any further acts done
upon land, in continuation of the Maritime Act,
which« gave juri£diction. American Ins. Co. v.
Johnson, BUtchf . & H.. 10, 12 Mod., 185 ; Bee, 860 ; 1
Kent's Com., 870.

Admiralty has Jurisdiction over oontract of af-
freightment between two ports of same State, where
from the usual course of the voyage, part is upon
the high seas, out of the Jurisdiction of any State.
.Carpenter v. The Emma Johnson, 1 Cliff., 6Sd.

So, also, where contract of affreightment^s'to be

Berformed wholly between ports within the same
tate. The Mary Washington, 1 Abb. U. S., 1.
Action for damages for injury to goods carried
on board a vessel between two ports of the Hudson
River, is within admiralty Jurisdiction, notwith-
stnnding both ports are m same State and own-

112

ers of vessel and of cargo are all residents of such
State. The Leonard, 8 Ben., 263.

The Saginaw Kiver (Mloh.) is a public navigable
water within the admiralty Jurisdiction of Dfst.
Ct. The Oeneral Cass, 6 Am. L. T. Rep., 12; 8. C*
1 Brown Adm.,334.

Ferryboat plying on Mississippi River between
points on opposite sides, within a distance of six
miles, is amenable to admiralty. The Gate City,
5 Bias., 200.

The admiralty Jurisdiction of IT. S. oourts ex-
tends to a tort committed by collision on an artl-
Adal ship canal connecting navigable waters with-
in that Jurisdiction. The Oler, 14 Am. L. Reg., 800 ;
S. C.,2Hugh., 12.

The waters of Welland Canal are within the ad-
miralty Jurisdiction of the U. 8. courts. The Avon«
1 Brown, Adm., 170.

Admiralty Jurisdiction of IT. 8. Dlst. courts does
not extend to seizures nuide on land. U. 8. v.
Winchester, 00 U. 8. (0 Otto, 372),

Admiralty has Jurisdiction cf a libel by marinera
for wages against a vessel plying on navigable
waters, though these waters are entirely within
one State. Tne Sarah Jane, 1 Low., 208 ; Roberts v.
Skolfield, 8 Ware, 184.

In a proceeding in rem against a canal boat for
oats shipped from Buffalo to New York by Erie
CamU, part of which were stolen from the boat. It
was held by the District Court that admiralty had
Jurisdiction to enforce such a contract, althouah
part of the service was to be performed on the
Erie Canal, and although the boat was built to nav-
igate the canal and had no means of locomotion in
herself. The B. M. McChesney, 15 Blatchf ., 183. The
decree in this case was sustained by the Supreme
Court. Chief Justice Waite delivered the opinion,
in which he concurred in the opinion of the District
Judge.

62 U. S.

1859.

Hill y. Smith.

38a-287

and general average arise, that the federal courts
ahalf be obliged to' deal incidentally with the
subject, the question being influenced by the
common peril in which all parties in interest
are concerned, and to which bhip, freight and
cargo, as the case may be, are liable to contrib-
ute their share of tlie loss.

A small part of the goods in question in this
case were shipped for the port of Chicago, but
are not of sufficient value to warrant an appeal
to this court.

The decree of the court beUno dumimng the
libel, affirmed.

Mr. Juitiee Daniel :

I concur in the decree for the dismission
of the libel in this case, but not for the reasons
assigned bv the court. It being my opinion,
as repeatedlv declared, that the adminilty juris-
diction, under the Constitution of the United
States, is limited to the high seas, and does
not extend to the internal waters of the Unit-
ed States, whether extending to different States
or comprised within single States. If there
be any inefficiency in this view of the admi-
ralty powers of the Government, the fault is
chargeable on the Constitution, and on the
want of foresight in those who framed that
instrument, ana it can be ligitimately remedied
by an amendment of the Constitution only.

Dissenting, Mr. Justice Orier, Mr. Justice
Catron and Mr. Justice Wayne*

Cited- 21 How., 260 ; 7 Wall., 641; 102 N. S.. M6:
2t Wall., 687: 2 Ben., 547, 660: 3 Beo., 267-271 ; 1
Abb. U. 8., 7 ; 1 Biss.. 372 ; 4 Blatchf ., 365; 11 Blatchf .,
476: Chase, I>ec., 129; 1 Cllff.,687; 1 Low., 205; 1
Brown. 68, 197, 199.

HENRY HILL. Piff. in Br.,

CALEB B. SMITH bt. al.

(See S. C, 21 How., 288-287.)
Guarantjf of stock, when vaUd.

Where plaintiff, on sale of land to a railroad, re-
ceived from defendants their guaranty that certain
■took of the railroad company which plaintiff re-
oeived for the land should be worth par in three
years, or defendants should make It up to par or
fiay him whatever sum said stock should be worth
leas than par: held, that this was an independant
oontract and valid.

The stock at the time speolAed being worthless,
and the railroad company insolvent, held, that the
plaintiff is entitled to Judfrment, on demurrer to
his complaint, unless defendants withdraw their
demurrer and plead some good plea in bar.

Suhmitted Jan. 18, 1859. Decided F^. S, 1859.

IN ERROR to the Circuit Court of tlie Unit-
ed States for the District of Indiana.

This was an action of assumpsit brought in
the court below, by the appellEint, to recover
damages resulting from the breach of a certain
guaranty in writing.

The court sustained a demurrer to the dec-
laration and entered judgment for the defend-
ants; whereupon the plaintiff sued out this writ
of error.

A further statement of the case appears in the
opinion of the court.

Hee dl How. U. 8.. Book 16.

Messr$.0, H. Smith and Jer. Smith, for

appellant:

We submit that the first count contains, in
fact, two distinct agreements.

1. The stock should be worth par in three
years from the date of the contract.

2. The Railroad Company would make up
for any deficiency.

The first is, unquestionably, an absolute agree-
ment. If il is, then an action can be maintained
upon it alone, although the other guaranty
should be adjudged a collateral undertaking,
which we submit is not the case.

2 Story, Cont., p. 896, sec. 858: Newman y,
Newman,^ M. & 8., 66: Kerrison v. Cole, 8
East., 281; Van Dyck v. Van Buren, 1 Johns.,
362; 1 Pars. Cont., 480.

As they are both laid in the count, the breach
of both assigned, a general demurrer, even if
confined to the court, should have been over-
ruled, even though no action would lie upon
the second guaranty.

1 Chit. PI.. 703.

We maintain, however, that the second guar-
anty is also an independent and original guar-
anty on the part of the appelles. The convey-
ance of the land was a sufficient consideration.

10 Moore, 395; 8 Bing., 107; 8 Cush., 156;
15 Pa. St., 156.

Even were there some difference as to the
construction, it should be construed, under the
circumstances, against the grantor.

Lawrence v. McOalmot, 2 How., 450; Mason
V. Pritchard, 12 East, 227: Pugh v. Duke of
Leeds, Cowp., 714; Chit, on Cont., 80, 81; 1
Pars. Cent., 495.

The contract, even if made between the rail-
road company and the appellant, was valid in
law ; but whether it was or not, it is binding on
the grantors.

Goodman v. Cfiaise, 1 B. d^ Aid., 297; Lane
V. Burghart, 41 E. C. L., 848; Maggs v. Ames,
15 Eng. C. L., 47; Bedhead v. Cator, 1 Stark.,
14.

We submit that the demurrer to the first and
second counts, which are substantially alike,
should have been overruled. The third count is
unquestionably good. It sets up an original and
independent contract between the appellant
and appellees, founded upon a sufficient con-
sideration, and alleges performance on the
part of the appellant and a violation by the
appellees; and as the demurrer covered all the
counts, if one is good, the demurrer should be
overruled.

The following are the distinct points upon
which we rely for the reversal of the judg-
ment.

First. That the Circuit Court erred in sus-
taining the demurrer to the first and second
counts, and each of them.*

Second. That the court erred in sustaining
the demurrer to the whole declaration, if there
be one good count, or part good of a divisible
count.

1 Chit., p. 665, ed. 1855, notes c, (8) and au-
thorities.

Third. The guaranty set out in the first and
second counts, was an ori^nal undertaking of
the appellees, and is bindmg in law. 4 M. &
S., 66; 8 East, 281; 1 Johns., 362; 1 Pars.
Cont., 480; 2 How., 450; 12 East, 227; Cowp.,
714; Chit. Cont., 80, 81; 1 Pars. Cont., 495;

8 118

283-287

BnPBXMB Ck>UBT OF THE URTTED StATBS.

Deo. TsBic

6EDg. C. L., 82: 41 Eng. C. L., 848; 1 How.,
187; 10 Pet.. 498.

Fourth. The whole contract set out in the
tint and second counts being in writing, and
founded upon a sufficient consideration, was
obligatory upon the parties.

See 10 Moore, 895; 8 Bing., 107; 8 Cush.,
159: 15Penn. St., 156.

Fifth. Suppose the undertaking of the ap-
pellees to be collateral to a contract of the Rail-
road Company, the undertaking or guaranty is
valid in law and binding on the appellants.

2 How.. 426; 7 Cranch, 69; 10 Pet., 482; 7
Pet., 122; 10 Moore, 895; 8 Bing., 8, 107; 14
111., 287; 15 Penn. St.. 27; 2 Story, Cont.,400.
sec. 862. and authorities cited, ed.. 1857; 17
Pet.. 161; 5 B. & Ad., 1109; Mood. & Al., 894.

Sixth. Neither the Railroad Company nor
their guarantors can set up the illegality of
their executed contract, either at law or in
equity.witliout placing the parties in statu quo,

4 Blackf.. 515: 5Blackf.. 441 ; 7 Blackf.. 55;
8 Blackf., 409, 469; Adams' £q., 191; 1 Story.
Cont., 601, sec. 497, note 2, ed. 1857; Hill,
Trust.. 221, ed. 1857.

Seventh. The third count sets out an origi-
nal, independent contract between the appel-
lant and the appellees, founded upon a sufficient
consideration, and the facts being admitted by
the general demurrer, raising no question as to
the form, is valid in law, and the demurrer to
the whole declaration should have been over-
ruled.

1 Pars. Cont.. 497, and authorities; 87 Eng.
C. L., 120; 2 McLean, 108; 8 McLean, 887;
1 Story. Cont., 680, sec. 481; Story, Cont., 544,
sec. 551.

Eighth. The undertaking of the appellees is
valid and binding, whether an action could be
maintained against the Railroad Company or
not.

1 Burr.. 871; 1 B. & Aid., 297: 15 Ene, C.
L..47; 1 Stark.. 14, 19; 2 Eng. C. L., 16, 18.

We submit the case with confidence that the
law is with us and, therefore, that it must be
reversed.

No counsel appeared for the defendants in
error.

Mr, Justice Grier delivered the opinion of
the court:

The plaintiff's demand is founded on the
following contract, dated Aueust 17th, 1853.
signed by defendants, and set lorth at length in
the declaration :

* 'Whereas Henry Hill, of Delaware County,
has proposed to convey to the Cincinnati, New-
castle and Michi^n Railroad Company a cer-
tain tract of land in Delaware County, contain-
ing three hundred and nine acres, for the con-
sideration of six thousand one hundred dollars,
to be paid in the capital stock of said Company,
at par, on the condition that Caleb Smith and
other responsible persons will ^aranty that
the said stock shall be worth par m three years
from the present date, and in default thereof,
that the Company shall make it up to par; and
whereas the said Cincinnati, Newcastle and
Michigan Railroad Company have agreed by a
resolution of their Board of Directors to accept
said proposition: Now, we, the undersigned,
in consicleration of the premises, hereby guar-

114

anty to the said Henry Hill, that the said stock
shall be worth par in three years from the date
of this instrument; and if. at the expiration of
that date, said stock shall not be worth par, we
guaranty the said Henry Hill that the s^d Cin- ^
cinnati, Newcastle and Michigan Railroad
Company shall make up to him or pay him
whatever sum the said stock shall oe worth
less than par, so as to make the said stock
worth par to said Henry Hill at that date."

The declaration is in proper form, and con-
tains all the averments necessary to show a
breach of this contract, and the consequent lia-
bility of defendants.

There was a general demurrer to the declar-
ation, and judgment for the defendants.

As we have not been furnished with an
argument on behalf of defendants, we are at a
loss to discover on what grounds it is supposed
that this judgment can be supported.

As the contract is in writing, signed by the
parties to be charged, it cannot be affected by
the Statute of Frauds; and although the term
''guaranty" is usually applied to a collateral
undertaking to pay the debt of another, yet
when taken in connection with the other terms
of the instrument, this is clearly an original, in-
dependent contract. If it had been under seal,
the term "covenant" would have been the tech-
nical synonym for the word '* guaranty" as here
used.

It states that the defendant would not agree
to sell his land in exchange for stock, except on
condition that defendants should guaranty that
the stock in three years would be worth par, or
should be made so ^by the Corporation. For
this consideration, defendants agree to make it
so, or, in other words, to pay the difference
between the cash value of the stock on that
day and its nominal value.

On this condition and for this consideration,
the plaintiff agreed to convey his land to the
Railroad Company; and on the faith of the de-
fendants' undertaking, he has conveyed it, and
accepted, not money, but certain stock, which
defendants have agreed to make equal to money
by a certain day. Th^ declaration avers, that
at the time specified, the stock was wholly
worthless and of no value, and the Railroad
Company utterly insolvent, and unable to pay
the difference; and that defendants, having
full notice of these facts, refuse to comply with
their contract.

There is no reason why this contract should
be treated as void because of an illegal or im-
moral consideration. Its conditions require no
previous suit to be instituted against any one
as principal debtor. The declaration contains
every necessary averment; a valid contract, a
large consideration paid, and a breach of the
contract by defendants; all set forth in proper
and technical language.

The plaintiff is, therefore, entitled to Judg-
ment on the demurrer, unless the court below,
in their discretion, shall permit the defendants,
on payment of costs, to withdraw their demur-
rer, and plead some good defense in bar.

The judgment of the court below is reversed,
and record remitted for further proceedings.

Cited-21 How., 4M.

02 U.S.

18M.

COICBS T. HODOB.

897-^08

LESLIE COMBS, Qmpt d Appt,

JOHN L. HODGE, Admr. of Akdbew Hodos,
deceased, WM. L. HODGE Ain) JAMES
LOVE.

(See 8. C. 21 How.. 807-40BJ

Adfni99iotuinpUading$ — letter of agents uihen no
evidence of authority — riglUe <^boDa fide holder
ofhiXl ofexehange--4nU8 origiruUing in fraud or
tUegeUUy — ttUcen out of the eourae of trade aa
ouerdue — inBtrument not negotiable, token un-
QutAorieed tranefer of doe$ not impavr righte
of owner — Texas eerUfieatee — haw trantferred
— eoUueion toith agent.

The record in another suit, where the parties were
different, and the petition and answer are siirned by
counsel, and not by the parties, cannot be resorted
to for admissions of the respective parties.

Where there is no evidence. of the existence of a
power of attorney, except that contained in a letter
of the agent, that statement, if admissible, is in-
sufficient to establish the fact, the letter having
been written after the agent had violated his obli-
gation as a faithful agent, and in reply to reproaches
of the plaintiffs.

The law merchant accords protection to a bolder
of a bill of exchange taken in the course of business
for value, and without notice.

But this concession is a departure from the fun-
damental principle of property which does not per-
mit one to transfer a better title than he has.

The party who claims the benefit of the exception
to this principle must, in the case of bills of ex-
change that have originated in fraud or illegal-
fty, establish that he is not an accessory to the
iUewal or fraudulent design, but a holder for value.

If the bill is taken out of the course of trade, as
overdue, or with notice, the rights of the holder
are subject to the operation of toe general rule.

When the instrument is one which by law is not
negotiable, or the negotiability has been restricted
by the parties, the rule of the law merchant has no
application.

In such case the loss of the instrument with the
name of the payee upon it, or its transfer by a faith-
leas agent, does not impair the title of the owner.

A purchdser cannot safely draw any conclusion
from the existence of an indorsement on such a
paper that the holder is entitled to sell or discount It.

Nor can the holder write on such non-negotiable

Eaper an assignment or guarantee not authorized
y the indorser.

CerUflcates, of the public debt of the Republic of
Texas which Issued to a person or bis assigns, were
transferable by him or his attorney, only on the
bonks of the commissioner of the State.

When the owner did not direct their sale, and they
were not sold on his account, if there had been a
power of attorney to the agent selling, containing
an authority to sell, the circumstances imposea
upon the defendant the necessity of showing there
no collusion with the agent.

Argued Jan. It, 1859. Decided Feb. S, 1869.

APPEAL from the Circuit Court of the United
States for the District of Columbia.

The bill in this case was filed in the court be-
low, by the appellant, to two certificates for a
portion of the public debt of the Republic of
Texas.

The court below having dismissed the bill,
the complainants took an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Meeere. S. S. Baxter, J, H. Bradley
and J« J. Crittenden, for appellant:

L This is a proceeding in the nature of a bill
of interpleader, the Treasury of the United
States being the stakeholder. Clark v. Clark,
17 How., 821.

See 21 How.

In such a controversy, the parties stand on
their respective, legal and equitable rights.

IL * The appellant is the creditor of Texas,
holding the legal title to this scrip, which can
pass only in the manner prescribed by the law
of Texas, and apparent on the face of the
scrip.

Menard v. Shaw, 6 Tex., 884.

The distinction between stocks passing by
delivery or assignment, except in a particular
mode, and the effect of their assignment in any
other mode, is well established.

Union Bank v. Laird, 2 Wheat., 890; Black
V. Zacherie, 8 How., 518; Olynn v. Baker, 18
East. 509; OorgierY. MieffiUe. 8 B. & C, 45;
10 Eng. C. L.. 16; AttyQen. v. Dimond, 1
Cromp. & J., 856. 70; AttyQen. v. Hope,
1 Cromp. M. & R. 630: AttyQen. v. Bouwens, 4
Mees. &. W.. 171; Smith's L. C, 260, and note;
Story, Confl. L.. sec. 883, and notes.

III. The legal title bein^ in Combs, the ap-
pellees have shown no equity in themselves.

(a) The authority to Love was special and
limited, to collect the money. The bonds them-
selves were not assignable, and could be trans-
ferred in one mode only.

This distinguishes the case from that of Bald-
win V. Ely, 9 How.. 680.

The purchaser from Love was bound to as-
certain the extent of his authority, and if he did
not he must abide the consequences.

Story, Agen., sees. 126-8 and notes; sees.
224-6, and notes, sec. 487.

(b) To establish an equity against Combs, in
the absence of proof or direct authority, the de-
fendants must show some conduct on the part
of Combs by which they were misled. This
they failed to do.

(e) The conduct of the purchaser gives rise
to distrust a« to the fairness of the transaction.

The counsel here reviewed the evidence in
this point and claimed :

1. That there was no express authority, upon
the bonds themselves, to Love to assi^ them.

2. That the title to the bond being in Combs,
Love could only transfer it under a written au-
thority, and was bound to have inquired after
and examined that authority.

Story, Agency, 72. note 2.

IV. Had Love authority to sell?

1. It was argued below, that the power was
conferred by the indorsement in blank.

2. That such authority is proved by com-

glainant's Exhibit H, in wliich Love asserts he
ad a power of attorney.
As to the power implied from the Indorse-
ment:

There Lb an: express limitation on the face
of these bonds, upon their transferable charac-
ter. It is not denied that, as between the orig-
inal parties, an indorsement in blank, for a
fair consideration, followed by delivery, would
vest in the purdiaser an equitable title, which
would, upon satiBfactoiy proof, enable him to
compel the indorser, in a court of equity, to do
everything necessary to effect a complete trans-
fer of his interest. He could sue in his own
name in equity alone. His title would be equi-
table. And it may be conceded that he bad
an assignable property in the bonds. But he
could f^gn no more than his equity.

Turton v. Benson, I. P. Wms., 496; S. C. 3
Vem., 764; Jktvies v. Austen, 1 Yes., Jr., 247,

807-40$

BUFBEMB COUBT OV THB UlflTBD StATBS.

Dbo. Tsbx,

and see the cases collected in the note, Perk,
ed., Catar y. Biirke, 1 Bro. Ch., 484; Dame$
V. Austen and notes, 8 Bro. Ch., 179; Seott y.
Shreeve, 12 Wheat., 605; and also 17 How., 616.

Undoubtedly these general principles are sub-
ject to certain exceptions; but there are none
such in this case.

2. The statement contained in the letter of
Love is introduced by the complainant, for
the purpose of showing the pretenses under
which it is supposed the defendant sets up title,
and to negative such pretension.

The bill is sworn to, and emphatically states
and reiterates, that complainant never gave any
authority, in any form, to Love, to d&pose of
the bonds.

And it is a violent invasion of the rules of
evidence to say, that when a complainant in-
troduces, by way of exhibits in his bill, the un-
sworn statements of his defaulting agent as to
transactions alleged to be fraudulent and sought
to be set aside, and under oath negatives them,
he shall be held bound by the very falsehoods
he seeks to overthrow, and they shall be taken
as proof that his sworn statements are false.
The essence of the bill is, that the agent had
fraudulently appropriated the bonds to his own
use, under the pretense of an authority to sell;
and it is to repudiate and discredit this pretended
authority, that he makes him and his imputed
assignee parties defendant, and seeks from them
a discovery of the facts. The pretense in the let-
ter is contradicted in terms, and charged to have
been a fraud. To say, then, that it is evidence
to prove the authority, is a solecism and a con-
tradiction in terms of the plainest rules of
chancery pleading. If this is out of the case,
there is no scintilla of proof to give countenance
to the pretense of an authority.

Finally, Combs having the legal title, the
whole burden is on the appellees, to establish
by satisfactory proof an equity which will draw
to it the legal title.

Judean y. Coreorant 17 How.; 612.

Me$tr$. Reverdy Johnson and Reverdy
Johnson* Jr.» for appeUees.

Mr. Justice Campbell delivered the opinion
of the court:

The plaintiff filed his bill to establish his
claim to two certificates for a portion of the pub-
lic debt of the Republic of Texas, which had
been issued to him in the year 1889, and which
were transferable by him, or his attorney, or
his representative, onhr, on the books of the
stock commissioner of that State. He avers
that these certificates with others were indorsed
in blank by him and sent to the defendant
(Love), in Texas, during the year 1840, with
authority to receive an anticipated partial pay-
ment, and to obtain other certificates of the
same description for the residue. That he did
not give to his agent any authority to sell them,
or to dispose of them for his own use, and has
done no act to defeat his own legal title to
them. That Love did not collect any part of
the debt, and has failed to return the two cer-
tificates in question. That for fifteen years he
has been unable to discover who was in posses-
sion of them, and has but recently ascertained
that they were held by one of the defendants
under a claim of title from Love,

11«

He attached to his bill a number of letters of
Love, containing admissions of his receipt of
the certificates, and of his agency for the puiint-
iff; and subsequently to the conversion by him
of these, he wrote to the plaintiff in extenuation
of his conduct, affirming that he had a power
of attorney and letters from the plaintiff au-
thorizing him to sell. That he would endeavor
to replace the stock, or would give other stock
of the same description, and insisted Uiat the
liberty he had taken was excusable.

The /defendant (Hodge) answered to the bill
that these certificates were claimed as the prop-
erty of the decedent, Andrew Hodge. That he
purchased them from Love, fairly and for their
full value, and with a firm conviction that he
was authorized by a power of attorney and the
blank indorsement of the plaintiff, to dispose of
them. The cause was heard upon the pleAdings
and a decree pro eonfeseo against Love.

The record in the District Court at New Or-
leans in the suit between Love and Hod^e, ap-
pended to the bill, does not contain evidence
applicable to this cause. The parties to that
suit were different, and the petition and answer
are signed by counsel, and not by the parties,
and cannot be resorted to for admissions of the
respective parties. BoHeau v. Ituttlin, 2 £x.«
665. There is no evidence of the existence of
a power of attorney from the plaintiff to Love,
except that contained in the letter of Love be-
fore referred to. If that statement is at all ad-
missible, it is insufficient to establish the fact.
The letter was written in 1844, after Love had
violated his obligation as a faithful agent, and
in reply to reproaches of the plaintiff. In that
letter he promises to restore to the plaintiff
these or other certificates. There is no evidence
of any fulfillment of this promise. He has
failed to produce a power of attorney, or any
letters which authorize his sale to his co-de-
fendant. The witnesses of the contract be-
tween him and the decedent (Andrew Hodge)
have not been examined. These circumstances
raise a strong presumption a^^inst the verity of
his statement, and deprive his letter of any pro-
bative force. The title of the defendant, there-
fore, depends upon the effect to be given to the
indorsement of the certificates in blank by the
plaintiff, and their deposit with Love. The
question is, was he invested with such a title
that a bona fide purchaser, having no notice of
its infirmity, will be protected against a latent
defect? The law merchant accords such pro-
tection to a holder of a bill of exchange taken
in the course of business for value, and without
notice; and legislation in Great Britain and
some of the States of the Union has extended
to the same class of persons a similar protec-
tion in other contracts.

But this concession is made for the security
and convenience, if not to the necessities and
wants, of commerce, and is not to be extended
beyond them. It is a departure from the funda-
mental principle of property, which secures the
title of the original owner against a wrongful
disposition by another person, and which does
not permit one to transfer a better title than he
has. The part^ who claims the benefit of the
exception to this principle must come within
ail the conditions on which it depends. In the
case of bills of exdiange that have originated
in fraud or illegality, the holder is bound to

62 V. S.

1858.

CouBB V. HoDas.

m-AOB

establish that he is not an accessory to the il-
legal or frauduleDt design, but a holder for
▼alue. If the bill is taken out of the course of
trade as overdue, or with notice, the rights of
the holder are subjected to the operation of the
general rule. In Asfiurst v. The OffieUU Man-
ager of the Bk, of Australia, 87 Eng. L. & Eq.,
105, Justice Erie says: "It seems to me ex-
tremely important to draw the line clearly be-
tween negotiable instruments, properly so
called, and ordinary chattels, which are trans-
ferable by delivery, though the transferrer can
only pass such title as he had. As to negotiable
instruments, during their currency, delivery
to a bona fide holder for value eives a title, even
though the transferrer should have acquired the
instrument by theft; but after maturity the in-
strument becomes in eifect a chattel only in the
sense I have mentioned." When the instru-
ment is one which by law is not negotiable, or
when the negotiability has been restricted by
the parties, the rule of the law merchant has no
application. The loss of the instrument with
the name of the payee upon it, or its transfer
by a faithless affent, does not impair the title
or the owner. Nor can a purchaser safely draw
any conclusion from the existence of an in-
dorsement on such a paper that the holder is
entitled to sell or to discount it. Birclehack v.
WHkins, 10 Harris, 26; Ames v. Driv>, 11 Fos-
ter, 475; Symonds v. Atkinson, 87 Eng. L. &
£q., 5a'>; Charnleyv, Qrundy, 25 Eng. L. &
£q., 818. Nor can the holder write an assign-
ment or guaranty not authorized bv the in-
dorser. 4 Duer, 45; 25 Eng. L. & fiq., 19; 6
Harris, 484. This doctrine has been applied to
determine conflicting claims to public securities
which were not negotiable on their face, though
the subject of frequent transfers.

The suit of Tonkin v. FaUer, 8 Doug., 800,
'was for four victualing bills drawn by com-
missioners of the victualing ofQce on their
treasurer, in favor of their creditor. These
were sent to an agent with a power of attorney,
" to receive money and give receipts and dis-
charges," and who pledged them for an ad-
vance of money. Lord Mansfield said the only
question is, who has the rieht of property in
this bill? It must be the plaintiff's, unless he
has done something to entitle another. It is
deposited with the defendant by one who had
it under a limited power of attorney. If the
plaintiff had ever consented to the disposal of
the bill, he would not be allowed to object, nor
would he if the money had ever eome to his use.
But here there is no such pretense.

Olyn V. Baker, 18 East, 509, was a suit for
bonds of the East India Company, payable to
their treasurer, and sold with his inaorsement.
Le Blanc, Justice, said :

" Here are persons intrusted with the secur-
ities of A and B, who part with the securities
of A, and, when called on for them, give the
securities of B. That difficulty can only be
met by assimilating such securities to cash,
which, whether it has an earmark set upon it
or not, if passed bv the person intrusted with
it to a bona fide holder for valuable considera-
tion, without notice, cannot be recovered hj
the rightful owner; but how does the simili-
tude hold?"

And LoM EUenborough said, " any indi-

Bee 91 How.

vidual might as well make his bond nego-
Uable."

The case of Dunn y. Commercial Batik of
Buffalo, 11 Barb., 580, originated in the refus-
al of that bank to allow a transfer of stock on
the books of the bank, which was transferable
by the holder of the certificate or his represen-
tative.

The plaintiff had the certificate and a blank
assignment, and a blank power of attorney,
and claimed to make the transfer. The court
denied that certificates of stock in reference to
neTOtiability are placed on the same ground as
bills of exchange, and declare that it is in-
cumbent on a party claiming under such a trans-
fer to prove the contract or consideration. In
Menard v. Shaw, ComptroUcr, 5 Tex., 834, the
Supreme Court of that State decide that the
agency of the payee named in certificates like
the present is indispensable to a legal transfer
on the books of the State, and that a forced
sale was, therefore, inoperative. The decision
of Baldwin v. Ely, 9 How., 580, does not sanc-
tion the claim of the defendants.

The certificates which were the subject of
controversy were issued, under an Act of Con-
gress, to a person or his assigns.

The ordinary form of assigment was a blank
indorsement, and this had been recoguized
as sufficient at the Treasury of the United
States, and in the ordinary traffic in the com-
munity.

The defendant proved thAt he had paid value
for them. In the cases cited from Douglas &
East, the judges stated that the existence of
similar facts might give another aspect to the
claim of the defendants in these cases. In the
case before us, the certificates were transfer-
able, in terms only, in a single mode.

There was no evidence that a transfer in any
other form than that prescribed had ever been
recognized.

we have considered this cause upon the as-
sumption that the defendant was a holder for
value.

There is no statement in the answer of the
consideration paid to Love for these certificates,
nor of the time, place and circumstances of
the contract between him and the defendant's
testator. It appears that the plaintiff did not
direct their sale or transfer, and that they were
not disposed of on his account; and if there had
been a power of attorney containing an author-
ity to sell, the circumstances would have im-
posed upon the defendant the necessity of
showing there was no collusion wiUi Love.
Upon tne case as presented, the court is con-
strained to reverse the decree of the Circuit
Court, dismissing the plaintiff's bill. But
the case is presented in an unsatisfactory man-
ner.

The transaction between Love and the dece-
dent (Hodge) has not been exhibited to the
court, although parties fully cognizant of it
are before the court.

We have concluded to remand the cause to the
Circuit Court, with directions to allow the parties
to amend the pleadings, and to take testimony, if
they should be so advised.

Clted-1 Black., 196.

117

d48-d5l

StjpBSMB CotttT cnr thb tTmTBD Statbs.

Dbo. Tesh,

THOMAS MAGUIRE, Claimant of the Steam-
er OOLIAH, Appt,,

STEPHEN CARD. Libt.

(See 8. C, 21 How., 24S4K1.)

AdmiraUy juriadiction^-tuppUeB for domeiUe

A prooeedlnir in rem^ to reoover for coal fur-
nished a steamer engaged in the business of navi-
gation and trade exclusively within the State of
California, is not the subject of admiralty juris-
diction.

It concerned the purely internal trade of a State.

That commerce is necessarily left to regulation
by state authority.

The 12th rule or the admiralty amended, so as to
take from the district courts tae right of proceed-
ing in rem against a domestic vessel for supplies
and repairs, on the authority of a lien given by
state laws.

Argued May It, 1S68, Held under adtieement
May 18, 1868. Decided Feb, 7, 1869,

APPEAL from the Circuit Court of the Unit-
ed Statee for the district of California.

The libel in this case was filed in the District
Court of the United States for the Northern
District of California by the appellee, to re-
cover the balance of an account for coal fur-
nished the steamer €k>liah.

The said court entered a decree in favor of
the libelant for $3,830, with costs.

The Circuit Court of the United States for
the district of California having affirmed this
decree, the claimant of said steamer took an
appeal to this court.

A further statement of the case appears in the
opinion of the court.

Mr, M. Blair« for appellant.

Mr, J. T, Doyle* for appellee.

Mr, Justiee Nelson delivered the opinion of
the court:

This is an appeal from a decree of the Cir-
cuit Court of the United Statee for the North-
ern District of California, in admiralty.

The suit was a proceeding inrem against The
Qoliah, to recover the balance of an account
for coal furnished the steamer while lying at
the port of the City of Sacramento, in the
months of October and November, 1855. The
vessel, according to the averments in the libel
and which are not denied in the record, was
engaged in the business of navigation and
tr^e on the Sacremento River, exclusively
within the State of California, and. of course,
between ports and places of the same State.
She was therefore engaged, at the time of the
contract in question, in the purely internal
commerce of the State, the contract relating
exclusively to that commerce, and which
does not in any way affect trade or commerce
with other States.

The court has held, in the case of Rufiu AUen
et, al. V. H. L. Neteberry {ante,110), at this term,
that a contract of affreightment between ports
and places within the same Slate was not the
subject of admiralty jurisdiction, as it con-
cerned the purely internal trade of a State,
and that the jurisdiction belonged to the courts
of the State. That case occurred upon Lake
Michigan, within waters upon which the jurte-

118

diction of the court was regulated by the Act
of Congress of the 26th February , 1845; but
the restriction of the jurisdiction bv that Act
was regarded by the court as but declaratory
of the Taw, and that it existed independently of
that Statute.

The contract in that case, as we have said,
was one of affreightment between ports of the
same State; but we perceive no well-founded
distinction between that and a contract for
supplies furnished the vessel engaged in such a
tnufe. They both concern exelusively the in-
ternal commerce of the State, and must be
governed by the same principles.

There certainly can be no good reason riven
for extending the jurisdiction of the admiralty
over this commerce. From the case of Gibbons
V. Ogden, 9 Wheat., 194, down to the present
time, it has been conceded by this court that,
according to the true interpretation of the grant
of the commercial ix)wer in the Constitution to
Congress, it does not extend to or embrace the
purely internal commerce of a State; and hence
that commerce is necessarily left to the regula-
tion under state authority. To subject it,
therefore, to the jurisdiction in admiralty,
would be exercising this jurisdiction simply m
the enforcement of the municipal laws of the
State, as these laws, under the conceded lim-
itation of the commercial power, regulate tne
subject as completely as Congress aoea com-
merce '* with foreign nations, and among the
several States. " We are speaking of that com-
merce which is completely internal, and which
does not extend to or affect other States, or for-
eini nations.

We have at this term amended the 12th rule
of the admiralty, so as to take from the district
courts the right of proceeding in rem against a
domestic vessel for supplies and repairs which
had been assumed upon the authority of a lien
given by state laws, it being conceded that no
such lien existed according to the admiralty
law, thereby correcting an error which had its
origin in this court in the case of Hie Oen,
Smith, 4 Wheat., 439, applied and enforced in
the case of Feyrimxet al. v. Howa^ A Varian.
7 Pet., 824, and afterwards partially corrected
in the case of Tlie Steamboat New Orleane v.
Phebue, 11 Pet., 175, 184. In this lastcase, the
court refused to enforce a lien for the mas-
ter's wages, though it had been given by the
local laws of the State of Louisiana, the same
as in the case of supplies and repairs of the
vessel. We have determined to leave all these
liens depending upon state laws, and not aris-
ing out of the maritime contract, to be en-
forced by the state courts.

So in respect to the completely internal com-
merce of the States, which is the subject of
regulation by their municipal laws; contracta
growing out of it should be left to be dealt with
by its own tribunals.

Fbr these reasons, fee thir^ the decree of the
court below should be reversed, and the cause re-
mittedf with directions to dismiss the libel.

Dissenting, Mr. Justice Wayne.

Clted-7 Wall., 642 ; 21 WaU., 587 ; 2 Ben., M9, 660 ;
1 Browo., m ; 1 Cliff., 687 ; S Ben., 267, 270 ; 4 Blatchf^
866; 1 Low., 206, 206; U Blatcht. 4tt» 464. 476; 1
Brown^ 60; 1 Xiow^ 178.

M U.S.

1858.

Thb Unitsd States y. Sxtttbr.

170-184

THB UNITED STATES, A^U,
JOHN A. SUTTER.

8. C 21 How., 170-184.

SMn^M claim— exempUJUMHan of record, wi-
dence — turpltis — Mexican law —forfeiture —
eiaim ofpereone interested, may be in name of
original claimant,

A claim for eleven leagues of land granted to
Sutter by Alvarado, Governor of Calif orola, 18th of
June, 1841, sustained.

An exemplification of a record is admissible, as
evidence of the same diflrnity as the srrant Itself.

The non-production of the original given to the
party cannot furnish much cause for suspicion.

The petition for the surplus, or sobrartte, implies
there was an existing and operative grant, wnlch
the authorities recognized and respected.

The Mexican law of 1828, authorizes the political
nidet to srant lands toanempresarCo who may wish
to coloniae.

But the grant shall not be definitely valid with-
out the previous approbation of the Supreme
Government, to which the espediente^ with such re-
port as the Departmental Assembly may think fit
to make, shall be communicated.

No law of the U. 8. authorizes this court to pro-
nounoe forfeiture for any act or omission since
the date of theTreatv of Guadalupe Hidalgo.

The evidence fails to establish the grant pur-

Krtinar to be issued by Micheltorena at Santa Bar-
ra, the 6th February, 1845. and submitted to the
Board of Commissioners in March, 1853.
Bequlsites of a Mexican grant, con^d^red.
It is competent to persons interested in the claim,
to employ the name of the original dainuint In
proceedings to establish the grant.

Argued Jan. 7, 1859, Decided Feb, U, 1869.

APPEAL from the District Court of the
United States for the District of Cali-
fornia.

This case arose upon a petition filed before
the Board of Land Commissioners, in Califor-
nia, by the appellee, for the confirmation of a
claim to 83 square leagues of land in the vidley
of the Sacramento River.

The said Board of Land Commissioners en-
tered a decree confirming the claim of the peti-
tioner.

This decree, on appeal, having been affirmed
by the District Court of the Umted States for
the Northern District of California, the United
States took an appeal to this court.

A further statement of the case appears in
opinion of the court.

Meure. Black, Atty-Oen,, and Hull for
appellants.

Menre, Howard* Crittenden, Butler
and Walker, for appellee^

Mr. Juitice Campbell delivered the opinion
of the court:

This cause comes to this court by appeal from
a decree of the District Court of the United
States for the Northern District of California,
which affirms a sentence of the Board of Com-
missioners to settle private land claims in that
State, in favor of the appellee, upon a claim
to thirty-three square leagues of land in the
valley of the Sacramento River. The record
shows that the claimant, a native of Switzer-
land, immigrated to the Department of Cali-
fornia about the year 1839. was naturalized as
a citizen of Mexico, and with the leave of the
government formed a settlement near the
Junction of the Sacramento and American

Bee 81 How.

rivers, which he designated New Helvetia. The
country at the time was uninhabited, except by
bands of warlike Indians, who made frequent
depredatory incursions upon the undefended
settlements to the south and east of this place.
In two or three years after his arrival, the
claimant was commissioned by the Governor
of California to guard the northern frontier
and to represent the government in affording
security and protection to its inhabitants
against the invasion of the Indians and maraud-
ing bands of hunters and trappers, who occa-
sionally visited the vallev for plunder. In the
year 1841 he commenced the erection of a fort
at New Helvetia, at his own expense. It was
surrounded by a high wall, and was defended
by cannon. Within thij9 fort there were
dwelling-houses for his servants and workmen,
and workshops for {he manufacture of various
articles of necessity. There was a gristmill,
tannery, and distillery, attached to the es-
tablishment. A numoer of Indians were do-
mesticated by him, and contributed to culti-
vate his fields of grain, and to defend the settle-
from more savage tribes. He was possessed
of several thousands of horses and neat cattle,
which were under the care of his servants. There
were collected at different times from twenty to
fifty families, and there were in the course of
years some hundreds of persons connected with
this settlement. He is described as having
been hospitable and ^nerous to strangers, and
the g;overnors of California bear testimony to
the vigor with which he performed the duties
of his civil and military commission.

In March. 1852, he placed before the Board
of Commissioners a claim for eleven leagues of
land, to include his place at New Helvetia, and
extending thence north, which were granted
to him by Juan B. Alvarado, Governor of
California, 18th of June, 1841.

In March, 1S53, he amended his petition and
claimed an additional quantity of twenty two
leagues, which were granted to him and his
son, John A. Sutter, the 6th of February,
1845, by Micheltorena, the Governor of Cali-
fornia; this being the surplus {aobrante) con-
tained within the limits from which his first
grant was to be fulfilled. The espediente submit-
ted to the Board, with the grant of Alvarado,and
as a part of it, represents that he is in possession
of New Helvetia, and that his enterprise there
had the sanction of the government, and had
been prosperous; that he had associated with
him industrious families; and that, besides the
advantage to himself, he had awakened indus-
try in others, and had also, by the strength of
his company, formed a strong barrier against
the savage Indians. He aslu to enlarge his
establishment, by introducing twelve families,
and for this purpose solicits a grant of eleven
leagues at his establishment of r^ew Helvetia,
from the governor, together with his power-
ful influence before the Supreme Government
of the nation, that its approbation might be
given. The governor recognizes the truth of
the statements in the eepediente, and declares
that he has been sufficiently informed that the
land is vacant and suitable for the purpose of
the grantee. He grants to the applicant, ** for
him and his settlers, the said land, called New
Helvetia, subject to the approbation of the Su-
preme Gfovernment and of the Departmental

110

170-184

IlinFBBMB Ootmt 09 THB ttKIflBD fiTATfii.

t)BC. Tbbx,

AsBembly," and subject to four conditions.
The third and fourth relate to the boundaries
of the land and the consummation of the title,
and are as follows: ''8d. The land of which
donation is made to him is of the extent of
eleven ntios de ganado mayor, as exhibited in
the sketch annexed to the proceedings, without
including the lands overflown by the swelling
and current of the rivers. It is bounded on the
north by los Tres Picas (three summits) and
the 80** 41' 45" north latitude; on the east by the
borders of the Rio de las Plumas; on the south
by the paralll^l 88° 49' 82" of north latitude;
and on the west by the Kiver Sacramento.
4th. When this property shall be confirmed
unto him, he shall petition the proper judge to
give him possession of the land, in order thai it
may be measured, agreeably to ordinance, the
surplus thereof remaining for the benefit of the
nation, for convenient purposes. Therefore I
order that this title being held as firm and valid,
that the same be entered in the proper book,
and that these proceedings be transmitted to
the excellent Departmental Assembly."

The first inquiry in cases like this is, has the
authenticity of the grant been established.
This was not questidh^ in the District Court,
but in this court the appellant** have denounced,
with much force, the evidence as insufficient
to support it. The original, issued to the donee,
was not produced either to the Board of Com-
missioners or the District Court. To account
for its non-production, two witnesses were ex-
amined, who say that a paper, purporting to
lie an original, and which haid the appearance
of authenticity, was in the possession of one of
them, as the agent and attorney in fact of the
claimant; that this paper was destroyed bv fire,
with the ofl^ce in which both lived, in the fall
of 1851. An affidavit of the claimant in
another case is in the record, in which he says
that the original is lost. Some months before
this fire, this paper was recorded in the countv
registry of d^s, and the recording clerk
afu>rds some evidence to the genuineness of the
paper. It is shown that it had been exhibited
in controversies before courts of justice, and
had been examined by adverse claimants and
their counsel, and at other times by interested
and inquiring parties.

A grant of the same date, for the same quan-
tity of land, in the same locality, and issued by
the same officer, was reported to the United
States by William Carey Jones, Esq., their
agent, as existing in the archives of California
in 1850. In his intercourse with the officers of
the California Government, the claimant as-
serted his title to New Helvetia, and his asser-
tion was admitted; and accurate accounts of
his location and settlement, and the terms on
which thev were made, are to be found in his-
torical and descriptive works published under
the authority of foreign States, upon the testi-
mony of their agents, who visited California
prior to 1845. Fremont. 246; 1 Dujlot de Mou-
fras Explor. de V Oregon, and des Oallas, 457.
Besides this consistent testimony, there is pro-
duced from the archives a draught of a grant
corresponding to that produced from the coun-
ty records, except in respect to the signatures.

The (Governor, Alvarado, testifies that this
draught was prepared by him, and from it the
original that issued to Sutter was prepared by

the secretitry, and that the draught was de-
posited by his directions, and is now there.
The fact that his name is not attached to this
draught does not impair its authority under the
circumstances of this case. Spencer v. Lapd^,
20 How., 264.

We agree that the rule of law which requires
the best evidence within the power or control
of the party to lie produced should not be re-
laxed, and that the court should be satisfied
that the better evidence has not been willfully
destroyed nor voluntarily withheld. But the
rule on the subject does not exact that the loss
or destruction of the document of evidence
should be proved beyond all possibility of a
mistake. It onlv demands that a moral cer-
tainty should exist that the court has had every
opportunity for examining and deciding the
cause upon the best evidence within the power
or ability of the litigant. In every well regu-
lated government, me deeds of its officers, con-
veying parts of the public domain, are regis-
tered or enrolled, to furnish permanent evidence
to its grantees of the origin of their title. An
exemplification of such a record is admissible,
as evidence of the same dignity as the grant
itself. Patterson v. Wynn, 5 Pet,, 238; U, 3.
V. Davenport, 15 How., 1. This rule exists in
States which have adopted the civil law. In
Uiose States, the deed is preserved in the ar-
chives, and copies are given as authentic acts —
that is, acts which have a certain and accred-
ited author, and merit confidence. The acts
thus preserved are public instruments, and all
doubts that arise upon the copies that may be
delivered are resolved by a reference to the
protocol from which the copies are taken, and
without which they have no authority. 1
White Recop., 2W; Oitings v. Hull, 9 Pel..
807.

When, therefore, a protocol is found in the
archives, the non-production of the original
nven to the party cannot furnish much cause
for suspicion or alarm. The map to which the
grant refers, and which properly forms a part
of it, is not produced from Uie archives. The
testimony of the witnesses is, that there was a
map accompanying the original, and was burned
with it. An engineer or surveyor (Vioget),
who prepared maps for Uie claimant, testifies
that, in January, 1841, he made duplicate maps
for the claimant of the establishment at New
Helvetia, and surveyed eleven leagues at that
place; and that, in 1848, he traceda copy from
one of these, and that copy is produced and
filed with the petition. It is a fair conclusion,
from all the evidence, that these maps of Vio-
get were presented to the governor, and form
Uie basis of the grant, and make a part of it

The Secretary, Jimeno, who was examined
in reference to an application of the appellee
for an enlargement of his establishment, by the
donation of the sobrante, savs that a map ac-
companied the petition, and exhibited the land
desired; that he made a favorable report upon
the petition. The petition for the surplus, or
ffob^rante, implies there was an existing and op-
erative grant, which the authorities recognized
and respected. With this map, we have no
difficulty in locatinj^ the grant so as to include
New Helvetia. W ithout it, the question would
be, whether the general description of New
Helvetia should overrule the particular de*

esu.s.

186S.

The Unitkd States v. Suttee.

170-184

0cription by metes and bounds, contained in
the third condition; for it is ascertained that
the exact position of the line of latitude which
determines the southern boundary lies twenty
miles north of the principal estabhshment. But
the map shows that the line of the southern
boundary is south of New Helvetia, and is so
related to natural objects represented on it as
to be easily determined. Vioget accounts for
the error in the designation of the line by the
imperfection of the instruments, and proves
that a starting corner was fixed, and the line
traced on the ground. This is better evidence
of the true location of the southern line, and
conforms to the probabilities of the case. Up-
on the whole evidence, we find that the grant
and map filed with the petition in 1852, l^fore
the Board of Commissioners, have been proved.
The authenticity of the ^ant being ascertained,
the question of its validity, as a colonization
grant, under the laws of 1824 and 1828, re-
mains to be considered. To these laws, the
authorities of California habitually refer as the
source of their authority.

The law of 1828 authorizes the political chief
to grant lands to an empremrio who may wi^
to colonize: but that the grant shall not be
definitely valid without the previous approba-
tion of the Supreme (Government, to which the
etpedierUe, with such report as the Departmental
AjBsembly may think fit to make, shall be com-
municated. Before conceding lands, the chief
was directed to make inquiries that the candi-
date was embraced by the laws, and that the
land was suitable for' colonization, and was not
subiect to any existing right.

The grant to the claimant recites that the
governor had obtained the information neces-
sazy, and that the requirements of the law had
been fulfilled.

No condition was imposed upon the claim-
ant in respect to the distribution of the lands
among the families to be introduced. The ob-
ject of the grant, on the part of the authori-
ties, seems to have been to secure the services
of an efficient and competent ofilcer, in a dis-
tant and exposed portion of the Province, who
would undertake to give repose and security to
the settlements in that region ,* and this distri-
bution of lands was confided to him as a
trust, and a compensation for the performance
of that duty.

The quantity of land was not greater than
the Colonization Laws authorized an individual
to hold, and the only care of the authorities
was, that the consideration of the grant should
be secured from the donee. The evidence is
satisfactory that the expectations of the donors
were entirely fulfilled. During the early ad-
ministration of Alvarado and Micheltorena,
the ipnantee seems to have had the favor of the
political authorities, and in 1844 there was no
objection opposed by them to the enlargement
of his enterprise. Ue was referred to for in-
formation in business of the department, and,
in the civil commotions that preceded the over-
turn of the power of Micheltorena, he was the
principal stay of his administration ; and when
called in question, subsequently, by the ene-
mies of his chief, he said: '* My establishment
ia situated between the San Joaquin and Sac-
ramento Rivers. It is the point which forms
the frontier of the Moeebulos Indians, who are

Bee 81 How.

those who attack the ranehos' and seize the
horses. It is the road of transit from the inte-
rior. These reasons, not less tlian the great
distance from my place to the other settle-
ments, suggested to me the propriety of build-
ing my fort; and in order to do so, 1 obtained
a license from the goveromentof the country."

Subsequently to February, 1845, he seems
not to have been molested by the Government
of Mexico, but remained the only representative
of its power and authority in the valley of the
Sacramento. There was no inconvenience felt
by the failure to complete the grant, and there
was no denunciation, by any one, of the land, for
a breach of any condition. When the Treaty
of Guadalupe Hidalgo was ratified, he was a
citizen of Mexico, in possession of the property
comprehended in the grant, and is entitled to
all the guarantees provided by that Treaty for
the Mexican population of cAifornia. ae has
submitted his claims to the tribunals appointed
by the United States, within the term prescribed,
and is readyto abide their action in reference
to them. We know of no law of the United
States which authorizes us to pronounce, a sen-
tence of forfeiture for any act or omission since
the date of the Treaty. Our opinion is, that
this grant is a valid claim under that Treaty.

The grant purporting to be issued by Michel-
torena at Santa Barbara, the 5th February,
1845, and submitted to the Board of Commis-
sioners in March, 1853, remains to be con-
sidered.

The original of this grant was not produced.
It is not m the list of grants reported to the
government^by Mr. Jones, nor is it found in
the archives* of California. It has not been
placed upon the County Records of Saciamento
County, nor is there any evidence that it was
ever produced in an^ of the controversies for
the land included in it. There is no petition,
or reference to the Secretary, or compliance
with any other formality prescribed by the law
of 1828, preliminary to the issue of grants for
lands. The record shows, that in 1848, or
1844, the claimant applied for the sobrante or
surplus, and that his petition was referred to
the secretary for further information, and that
he reported there was no ohjection; that the
governor reserved the subject for consideration
until he could visit the Sacramento valley, and
that the papers were returned to the claimant.

In February, 1845, there existed a revolt
against the government of Micheltorena, in
which the principal inhabitants of California
participated. Micheltorena abandoned his capi-
tal, and, on his way to Los Angeles, reached
Santa Barbara, where the claimant joined him
with a body of "foreign volunteers. The dep-
osition of Castanada.theaid-de camp of Michel-
torena, has been taken. He says that the claim-
ant presented a petition for a grant to himself
and his son; that he (Castanada) drew the deed,
and that it was executed by the governor, in his
presence,at Santa Barbara; and that he believes
that the paper presented is a true copy. One
of the volunteers testifies that the governor
made a speech to the volunteers, in which he
said he had granted to Sutter all the lands he
had claimed (or asked for), and that he had is-
sued grants to all the applicants for lands who
had t^en licensed to settle in the valley of the
Sacramento. He says, about two months after

191

170-184

BUPBBHB Ck>T7BT OF THB UhTFED StATBS.

Dbo. Tebx,

be saw a grant in the bands of Butter, which
Batter informed him had been delivered a(
that time, and that he thinks the present copy
corresponds with the one he then saw.

The two witnesses, who proved the loss of the
other grant, testify that the original of this was
destroyed at the same time with the other, and
that the paper produced is a copy of the one
destroyea.

This evidence is not entirely satisfactory to
establish the execution of the grant. The two
witnesses first named speak of a paper they had
not seen since 1845, and one of ti^em was not
familiar with the language in which it is writ-
ten. One of the other witnesses is largely in-
terested as a CTantee of the claimant in the
issue of this sint, and the fourth immigrated to
California after the Treaty, was not conversant
with the Spanish language, and derived much
of his impressloqg from the parties who claimed
title under Sutter, and of whom he was the at-
torney.

But we are not disposed to place the decision
of the cause upon the deficiency of the evidence
of the execution of the paper, and therefore do
not pronounce absolutely upon it.

The decisions of the court show that they
have been disposed to interpret liberally the
measures of the Mexican authorities in Califor-
nia, and to view with mdulgence the acts and
modes of dealing of the inhabitants, having
reference to the laws of distribution and settle-
ment of the public domain. The circumstances
in which the governor was placed required
that his power and discretion should not be
circumscribed by narrow limits. In a remote
province of the Mexican Republic, he was
almost the only representative of the general
and common will of the nation, and he was
habitually in collision, sometimes in violent
collision, with provincial feelings, sentiments
and interests. At the time this grant purports
to have been made, he was engaged m a civil
war, which, after having been smothered for a
time, had burst forth with increased violence.
Within two or three weeks from the date of
the grant, the war was terminated by Uie agree-
ment of Micheltorena to abandon the country.
He never returned to the capital, except to pre-
pare for his de|)arture. The laws of Mexico
for the colonization and settlement of the public
domain, embody a comprehensive and liberal
policy, and the arrangements for their execu-
tion denote care and circumspection On the part
of their authors in securing their faithful ad-
ministration. They authorize the governor
(politieos gefes) to grant lands to those who may
ask for them, for the purpose of cultivating ana
inhabiting them. They require that every per-
son soliciting for lands shall address the gov-
ernor a petition, expressing his name, country,
and profesFion, the number, description, relig-
ion, and other circumstances of his condition,
and describing as distinctly as possible, by
means of a map, the land asked for; that the
governor shall obtain the necessary information
whether the petition embraces the requisite
conditions required by the law as to the person
and land, and. if necessary, that the municipal
authorities might be consulted whether there
be an objection to making the grant or not;
that the grants made to private families or per-
sons ahaO not be held to be definitely valid

191

without the previous consent of the Department-
al Assembly, and, in case of their dissent, that
it should be referred to the Supreme Govern-
ment. The definitive grant being made, a docu-
ment signed by the governor shall be given,
wherein it must be stated that said grant is
made in conformity with the provisions of the
laws in virtue whereof possession shall be

flven, and that the necessary record shall be
ept.in a book destined for the purpose.of all the
petitions presented and grants made, with the
maps of the lands granted, and the circumstan-
tial report shall be forwarded quarterly to the
Supreme Gk>vemment.

The office of political chief of a State or
Province has long existed in Spain (whence it
was derived by Mexico), and his duties are
defined with precision in the works on the ad-
ministrative law of that monarchy. The au-
thoritative acts of this officer assume the form of
ordinances and reflations, or of decrees and
Judgments. The former relate to the concerns
of the Department, and may issue spontaneous-
ly, while the latter always proceed upon a
petition. There are scarcely any formulas
prescribed for these acts. But there exist cer-
tain rules, consecrated by usage, sanctioned by
reason, and required by justice, some of which
have received the assent of the legislator, and
others are official regulations.

The administration has need of information,
and hence the political chief may consult with
subordinate authorities and corporations in all
business in which exact information is required
of local facts and circumstances, and he is
bound to hear the suggestions of the deputa-
tions and provincial assemblies when the law
requires it — a rigorous condition, a compliance
with which should appear in the recitals of the
disposing part, and the inserting of the cus-
tomary n)rmula8, that the act may not be con-
tested for excess of power. Finally, all the
acts of the political chief shall be authenticated
by his signature, and it concerns the good or-
der of the administration that they should be
inserted in a special record. Colmelro derecho
Admin., sees. 285, 286.

Assuming the statements of the witnesses
Castanada and Ford to be accurate, it can
hardly be contended that the issue of this
grant was an act of civil administration, or had
any reference to the law of colonization and
settlement. At a distance from the capital, in
the prosecution of an intestine war against a
band of insurgents, surrounded by a body of
foreign volunteers, in whose fideUty his safety
depends, the governor promises to dispose of
the public domain as a compensation for serv-
ice, or as an inducement to loyalty. In a
few days this governor is defeated, vacates his
post, and his troops are disbanded.

The hostile government that succeeded to thai
of Micheltorena have not recognized the legality
of the deeds of the deposed chief, nor did the
claimant (so far as we are informed) attempt to
obtain any sanction to his claim, or to introduce
the evidence i« his possession among t|ie ar-
chives of the department, without which a
S?rfect title could never have been obtained,
n the contrary, the record shows that he was
a captive in the hands of the enemies of Mi-
cheltorena, and was released, after humble
apologies, for hia adherence to the unfortunate

69 U. S.

1868.

Bblchbb y. Lawbasok.

251-257

chief, and protestations that in future he would
be loyal to the existing authorities. He kept
his grant concealed apparently as a dangerous
secret, until an entire change in the political
constitution of the country took. place. In our
opinion, this was not a valid claim at the date
of the Treaty of Guadalupe Hidalgo, and is
not entitled to recognition from the United
Stotes.

It appears from the deeds in the record that
the claimant has conveyed nearly all of his
estate in the land included in the two grants,
and objection is taken to the form of the suit.
It is contended that the claim should have been
preferred by the grantees of the claimant. We
admit the force of the argument in favor of
the objection, and that the dormant interests
of persons not parties on the record may fre-
quently disturb the course of justice.

But the contraiT practice was sanctioned in
I^ereheman*9caae, 7 Pet., and has been followed
since. It Is competent to persons interested in
the clidm to employ the name of the original
claimant. U. 8. v. Poreheman, 7 Pet., 61 ; u, 8,
y. Patterson, 15 How., 10.

The decree of the Dislrid Court i» afhtned,
in 9o far as it relates to tfie grant bearing date
the ISth of June, 18AL and executed by Juan
B. Alvarado; and is reversed in so far as it re-
lates to the grant purporting to have be^n exe-
cuted by Micheltorena, at Santa Barbara,
the 5th of February, 1845; and the cause is re-
milted to the District Court for further pro-
ceedings in respect to the location of the grant
of Alvarado, within the limits set forth in the
grant and the accompanying map on file in the

Mr. Justice ClilTord, dissenting:
I respectfully dissent from so much of the
opinion of the court as affirms that a proper
legal foundation was laid at the trial for the
introduction of parol evidence to establish the
existence and authenticity of the Alvarado
grant. When a concession of land is made b^
the government to an individual under Mexi-
can Taws, as in this case, a duplicate copy of
the title paper is required in all cases to be
filed in the proper tribunal for registry; and
unless that is done, it is difficult to see liow a
legal re^try can be made. That duplicate
copy is m the nature of an original paper, and,
after registry, becomes the foundation of all
the subsequent proceedings of the government
to perfect the grant in the donee. It was the
duty of the purchaser in this case, in the ab-
sence of any orig[inal grant, to produce that
duplicate copy, if in existence; and if not, then
to account for its loss. Accordine to the
draught presented as a copy, proved by parol
evidence, the grant was made subject to the
approval of the Supreme Gk>vemment and of
the Departmental Assembly. It has never been
decided that a grant is.sued by a sut)ordinate
officer, subject to the approval of the Supreme
€k>yemment, was viUid without such approval;
and, in my Judgment, the doctrine cannot be
maiotained without subverting the essential
principles on which every well regulated gov-
ernment rests. This grant was never approved,
either by the Supreme Government or the De-
partmental Assembly. Under the circumstances
diidoied in the record, I cannot concur that

8m 81 How.

it is the duty of the United States, under
the Treaty, to disturb the possession of the
settlers, while it appears that there is better
evidence to establish the right of the donee, if
any be had, to the land described in his con-
cession. On the proofs exhibited, I am of the
opinion that the decree of the District Court
should be wholly reversed.

I fully concur in the above opinion.

P. V. Danibl.

8. C, 2 Wall., 608. .

Cited— 21 How., 411; 23 I^ow., US; 1 Blaok, 840,
662,554; 12 Black, 612; 1 WaU., 428; 2 WaU., 681,
584: 10 Wall., 237.

CHAS. BELCHER & CO., Plffs. in Er„

GEORGE C. LAWRASON, Collector of the
Port of New Orl&ans.

(See 8. C, 21 How., 251-257.)

Duty on goods imported by manufacturer —
ga)ds purchased, or procured otherwise tJian by
purchase — construction of Acts—undermLtLO-
tion.

The 17th section of the Act of Auarust 80, 1842,
applies in the appraisal of merchandise Imported
by the manufacturer.

The reerulatioos of the Acts of 1823 and 1832, as to
ffoods procured otherwise than by purchase, were
left untouched by the 16th section of the Act of
1842.

The 17th section applies to every elass of importa-
tions—groods purchased, or procured otherwise
than by purchase.

While the Act of 1842 remained in force, it sub-
jected all importations to the penalty of fifty per
centum in case of undervaluation.

The Act of 8d March, 1857, obliterates the distinc-
tion between goods purchased or procured other-
wise than by purchase, and imposes unon the lat-
ter the twenty per centum upon the appraised
value, for undervaluation, the same as in case of
goods purchased.

Argued Jan, £6, 1859, Decided Feb. U, 1859,

N ERROR to the Circuit Court of the Unit-
ed States for the Eastern District of Louisi-
ana.

This suit was brought in the court below, bv
the plaintiffs in error, to recover from the Col-
lector of the Port of New Orleans the sum of
$6,159.20, with interest, amount of penal and
additional duties levied and paid under protest
on various invoices of sugar and molasses, im-
ported from Cuba, having been there manufact-
ured by themselves.

The court below decided that the importers
were not liable for the twenty per cent, exacted,
but were liable, under the 17th section of the
Act of 1842, to a penalty of fifty per cent, on
the duty, which reducea the amount by $1,689.-
80, whereupon the plaintiffs sued out this writ
of error.

A further statement of the case appears in
the opinion of the court.

Messrs. J* P. Beojamin and Re^erdy
Johnson, for plaintiffs in error:

It is contended, on behalf of the plaintiff,
that the court below erred —

1. In determining that the merchandise in
question was liable to penal duty under the
Act of August. 1842.

2. In aiuorcing the penalty in the present

351-257

SuPBsicB CbtntT 6t THB Uritbd Btatsb.

Dbc. TsBir,

suit, by deducting it from the amount of
plaintifrs demand, even if it were true that the
Act of August, 1842, did apply to his mer-
chandise.

Before entering, however, into an argument
on these points, u may be proper to make the
preliminary remark that the exaction of the
penal duty of twenty per cent, on the invoice
value of the importation, under the 8th section
of the Tariff Act of 1846, was clearly illegal.

Oreely v. Thompson, 10 How., 226; Uhritt
V. Maxwell, 8 Blatchf., 129; Thompaon v. Max-
M>eU, 2 BUitchf., 885; Durand v. Lawrence, 2
Blatchf., 896; Barnard v. Morton, 1 Curt. C.
C, 404.

The counsel then quoted the Tariff Act of
August, 1842 (5 Stat, at L., 568), and argued
that the provisions in sections 16 and 17 were
not applicable to importations by manufact-
urers.

Counsel also argued that there was evident
error in protecting the penalty prescribed in
the Act of 1842.

The collector never claimed from us any
penalty under that law. The penalty exacted
was a penalty of twenty per cent, on the ap-
praised value of the merchandise. None other
was asked. That penalty was paid under pro-
test, and under the Act of February, 1845, we
have the right to recover it back.

t^Mr, J. S. Black. Atty-Gen., for the defend-
ant in error.

Mr. Justice Nelson delivered the opinion of
the court:

This is a writ of error to the Circuit Court of
the United States for the £astem District of
Louisiana.

The suit was brought in the court below to
recover back from the Collector of the Port of
New Orleans an excess of duties paid bv the
plaintiffs. The goods upon which the duties
were imposed were certain invoices of molasses
and sugars, imported from Matanzas, in the Isl-
and of Cuba, in the year 1852. They were
imported by the manufacturer, and, on an ap-
praisal of the value at the customs in New Or-
leans, the appraised value exceeded the invoice
value upwards of ten per centum; whereupon
the Collector imposed an additional duty of
twenty per centum upon the appraised value,
under the 8th section uf the Act of 1846, which
was paid under protest.

The court below held that this additional
duty was improperly imposed, under the Act
of 80th July, 1846. as the 8th section of that
Act appliea only to merchandise purchased in
the foreign market, and did not embrace goods
imported by the manufacturer. The court fur-
ther held, that the several shipments were sub-
ject to the increased duty imposed under the
17th section of the Act of August 80, 1842; and
allowed the plaintiff to recover the excess over
and beyond the amount chargeable under this
last section.

The principal question in the case is, whether
or not the 17th section of the Act of 1842 ap-

glies in the appraisal of merchandise imported
y the manufacturer.

The Act of Congress of March 1, 1828, rec-
ognized a distinction between goods imported
which were purchased by the owner in the for*
ei^ market, and goodi imported by the man-
It*

ufacturer himself, and prescribed separate and
distinct oaths to be taken before the Collector
(sec. 4). That Act also prescribed, as a rule
for the appraisal of the goods, that to the act-
ual cost if the same have been actually pur-
chased, or the actual if the same shall have
been procured otherwise than by purchase, at
the time and place when and where purchased,
or otherwise procured, &c., shall be added all
charges, &c. (sec. 5).

The Act of Congress of July 14, 1882, pre-
served the same distinction as In the Act of
1828, in respect to goods imported which had
been purchased, and goods procured otherwise
than by purchase (sec. 15, sees. 7 and 8).

The 16th section of the Act of 1842, like the
7th section of the Act of 1832, prescribed the
rule for the appraisal of goods imported which
had been purchased in the foreign market, but
omitted any provision in respect to goods im-
ported which had been procured otherwise than
by purchase, leaving this class of importations
to the rule as prescribed in the Acts of 1828,
section 5, and 1882, section 15, which was not
repealed, as no provision in tliat Act was in-
consistent with this rule. The repealing clause
of that Act is as follows: "And that allprovis-
ions of any former law inconsistent with this
Act shall De, and the same are hereby re-
pealed." The regulations, therefore, of the Acts
of 1828 and 1882, in respect to the time and
place when and where goods, procured others
wise than by purchase, were left untouched by
the 16th section of the Act of 1842.

Then, as it regards the 17th section. That b
^neral, and applies to every class of importa-
tions— ^goods purchased, or procured otherwise
than by purchase. It regulates the mode and
manner of the appraisement. The appraisers
may call before them, and examine upon oath,
the owner, importer, consignee, or any other
person, touching any matter deemed material
m ascertaining the true market value or whole-
sale price of any merchandise imported; may
call for letters, accounts, or invoices, relating
to the valuation. It imposes a forfeiture of
one hundred dollars for any neglect or refusal
to attend before the appraisers and give evi-
dence; makes false swearing before them per-
jury; and if the person be the owner, importer,
or consignee, forfeits also the merchandise; re-
quires that the evidence thus taken shidl be
filed in the Collector's office, for future use;
provides for an appeal, on the part of the own-
er, importer, or consignee, to merchant ap-
praisers, in case of dissatisfaction at the ap-
praisal by the permanent appraisers; makes the
appraisal by the permanent or merchant ap-
praisers, as the case may be, final and conclu-
sive; and then closes with a priviso, that, in all
cases where the actual value thus appraised
and ascertained shall exceed, by ten per cen-
tum, the invoice value, then, in addition to the
duty imposed by law, there shall be levied and
collected on the goods fifty per centum of the
duty upon the appraised value. Bee, also, Act
of Congress, March 3, 1851.

As we have said, this section applies to all
classes of importations, and regulates the mode
and manner by which the appraisals shall be
conducted by the appraisers, giving to the
owner, importer, &c the right of re-appraisal
by merchant apnuaers, in case of disiatiaf ac*

i8oa

Bbown t. Hugbb.

80IH»3

tion. It embnoM not only importationA of
goods purchiMcd, referred to in the 16th section
of the Act, but importations procured other-
wise than by purchase, as provided for in the
Acts of 1833 and 1832; and while this Act of
1843 remained in full force, it subjected all im-
portations to the penalty of fifty per centum
in case of undervaluation.

Then came the Act of 80th July, 1846, the
8th section of which changed this penalty or
increased duty, in case of undervaluation, to
twenty per centum on the appraised value, as
it respected goods imported which had been
purchased, leaving the regulations in respect to
goods imported by the manufacturers as they
existed under the former laws.

This Act, like the Act of 1843, repealed only
such enactments of former laws as were repug-
nant to its provisions (sec. 11). The 8th sec-
tion, not including the manufacturer, left the
importation subject to the 17th section of the
Act of 1843.

The Act of 8d March, 1857, obliterates this
diBttnction between ^oods purchased or pro-
cured otherwise than oy purchase, and imposes
upon the latter the twenty per centum upon
the appraised value, for unaervaluation, the
same as in case of goods purchased. Sess.
Laws 1857, p. 199, Lit. <& Bro. ed.

It has been argued that, admitting the goods
were properly subject to the fifty per centum
increased duty, under the 17th section of the
Act of 1843, inasmuch as this was not imposed
by the collector, but the higher increased duty,
under the 8th section of the Act of 1846, the
court below erred in charging the shipments in
question with the former duty.

But the answer to this objection is, that the
law imposes the increased duty in case of un-
dervaluation, and not the colfector. It is true
he is the agent of the Government to collect it,
as he is in collecting the ordinary rate of du-
ties, but in no other sense or character. The
law declares, in the case contemplated by the
Act, and which existed upon the proofs before
the coart, that, in addition to the ordinary
duty, there shall be lieved and collected, &c.,
fifty per centum, &c. No demand of the Col-
lector was necessary to create the liability.
That arose, as matter of law, upon the facts
disclosed in the record, and it was the duty of
the court to enforce it; and hence the excess
over this increased duty, arising under the 17ih
section, constituted the just amount which the
plaintiffs were entitled to recover.

Judffmeni of the court beUno c^fflrmed.

JACOB B. BROWN. JACOB NIS8WANER,
FONTAINE BECKHAM, JOHN C. UN-
8ELD ASD GEORGE W. MOLER, Plffs,
in Br.,

BENJAMIN HUGER

(See 8. Cm 21 How., 806-8SS.)

I^Uent, how interpreted — eorutruction of, ie for
the eourt— proof of its Mubfeete, proper — natural
or permanent otjsets control course and dittance
— tehere boundary it a river,

6ee 91 How.

A patent for land must Itself be t^en as eTidenoe
of lis meaning; it must be interpreted as a whole;
its various provisions in connection with each oth-
er, and the Icffal deductions drawn therefrom must
be conformable with the scone and purpose of the
entire document.

This construction and these deductions are with-
in the exclusive province of the court.

Proof of the existence and character of the ob-
jects or subjects to which it is applicable, is proper.

In ascertainlnfr the boundaries of surveys or pat-
ents, the universal rule is, that wherever natural
or permanent objects are embraced in the calls of
either, these have absolute control ; and both
course and distance must yield to their influence.

Where a line is described as running in a certain
direction to a river, and thence up or down with
the river, those words imply that the line is to fol-
low the river according to its meanderings and
turnings, and in water-courses not navigable must
be ** ad medium filum aquuB,**

Argued Jan, 90, 1869, Decided Feb. U, 1869,

IN ERROR to the Circuit Court of the United
States for the Western District of Virginia.
The history of the case, and a very full
statement of the facts, appear in the opinion
of the court.

Messrs. Re^erdy Johnson and Henry
Winter DaWa* for plaintiffs in error:

The court withdrew from the jury all Ques-
tions touching the proof of the patent and the
particular boundaries thereof, though the de-
fendant's case consisted in showing Ihe bound-
aries, in the only copy of the patent produced,
to be erroneous; 'and the patent itself appeared
to have issued irregularly and without a pre-
cedent survey for the patentee.

Barclay v. HoweU, 6 Pet., 498, CK)8, 511.

The court withdrew from the Jury the ques-
tion, whether the 4th point of the defendant's
patent being in fact near and not on the river,
was, under all the circumstances of the locality
and survey, on or near the river.

Barclay v. EbioeU, 6 Pet., 498, 008. 511.

It must be for the Jury to say, whether near
means on the river, or is only a general descrip-
tion of the locality of the point, which is itself
the real point contemplated by the patent.

Messrs. Hnll ft Mason» for defendant in
error.

Mr, J. S. Black. AttyOen., for the Unit-
ed States:

The claim set up by the plaintiff in this case
is null, for three reasons, each of which is con-
clusive.

1. It is contended, on the part of defendant,
that by the calls of this patent, in construction
of law, the two rivers, Potomac and Shenan-
doah, are to be taken as the boundaries in ques-
tion.

See Starr Y, Child, 20 Wend., 156; Trustees
of Kingston ▼. Louw, 12 Johns., 252; Mayhew
V. Norton, 17 Pick.. 857; Barramond v. Me-
Glaughon, Taylor, N. C, 186; Rogers v. Mabe,
4Dev., 180; SdrtsflOdY, Westbrook, 1 Hayw.,
N. C, 258; Oockrell v. McQuin, 4 Hon., 61;
Bruee v. Taylor, 2 J. J. Marsh., 160; McOuUoek
V. Aten, 2 Ohio, 808; Newsom v. Pryor, 7
Wheat., 7, 10; French v. Bankhead, 11 Gratt.,
155; Ang. Water-courses, p. 25, sees. 28-^

2. The Brown patent is void under the Re-

VoTE.— Natural ol^eeis or needU ; which gnvem^

.Fryois

in the turvof of lands. See note to Newsom v
«)U.S.(7wheat.),7.

185

605-823

BUPBXMB Ck>I7BT OF TKB UNITBD StATBS.

Dec. Tebm,

vised Code of Virginia (tit. 82, sec. 86, p. 484
of Code published in 1849). by which it is en-
acted that " no entry on any lands wliich have
been settled for 20 years prior to the date of
such entry, and upon which taxes have been
paid at any time within the said 20 years, shall
be yalid. and any title which the Common-
wealth may have thereto, is hereby relin-
quished."

See. also, TichanaL v. Boe, 2 Rob. Va., 288.

3. The Brown patent is void under the 87th
section of title 82, same book, page 485, which
is as follows:

The Register of the Land Office shall not re-
ceive into his office any plat and copy of sur-
vey, which evidently comprehends the rights
of any other than him for whom such survey is
made, notwithstanding any deductions or reser-
vations. Every such survey shall be void.
Counsel said that the present case was distin-

Siished from that of Mitchell v. Earmany, 13
ow.. 115; Meigs v. McClung, 9 Cranch, 11;
HiU V. Tfie U. a., 9 How.. 888; U. 8. v.
MeLemore, 4 How., 286; Wilcox v. Jackson, 13
Pet., 516.

Mr. Justice Daniel delivered the opinion of
the court:

This was an action of ejectment instituted
by the plaintiffs in error against the defendant,
in the Circuit Ck)urt of the County of Jefferson,
in the State of Virginia.

The locus in quooeing held and occupied by
the defendant as an officer of the United States,
and in virtue of their right and authority, the
suit was, under the Act of Congress of 1789,
removed, upon petition, to the Circuit Court of
the United States for the Western District of
Virginia, within which district the property in
dispute is situated. The claim of the plaintiffs
is founded on a patent from the Lieutenant
Gk>vemor of Virginia, sranted to Jacob Brown
and Jacob Nisswaner, dated July 29, 1851, and
granted in virtue of a Land-Office Treasury war-
rant for the location of waste and unappropri-
ated lands. This patent, according to the va-
rious courses and distances therein set forth, pur-
ports to grant the quantity of thirty-nine acres
and two roods. Beckham, Unseld, and Moler,
three of the plaintiffs, derived their title directly
from the patentees above named, as was shown
by conveyances from the latter, which were
read in evidence. The plaintiffs also intro-
duced a survey plot and report, made by A.
Trotter, surveyor, in pursuance of an order of
court in this cause; and relied upon the same,
with other evidence, to show that the land
granted by the patent of 1851 was correctly
laid dowD and described in the survey, and that
the defendant was in the possession of the land
claimed at the commencement of the plaintiff's
action.

The defendant, holding the premises as the
agent and under the authority of the United
States, defended the right to the possession as
held by liim, upon the following proofs, bein^
certified copies from the records of the Land
Office of the State of Virginia, by S. A. Parker,
the Register of that office. 1st. An entry in
the Ofnce of the Lord Proprietor of the North-
em Neck of the State of Virginia (within which
portion of the State the land in contest is situ-
ated), in tlie following words, viz.: "1750,

126

April 4 Surveyed. James Nickols, of Freder-
icK County, Virginia, entered about two hun-
dred acres of waste and ungranted land at the
mouth of the Shenandoah Kiver." And an or-
der from Lord Fairfax to Guy Broadwater, in
the words and figures following, viz. :

" To Mr. Gut Broadwater:

Whereas James Nickols hath informed that
there are about two hundred acres of waste and
ungranted land where he now lives, and desir-
ing a warrant to survey ye same, in order to
obtdn a deed, being ready to pay ye composi-
tion and office charges: These are therefore to
empower you, ye said , to survey ye said

waste luia, provided this be ye first warrant
that hath issued for ye land ; and you are to
make a Just and accurate survey thereof, de-
scribing the course and distance per pole; also
ye cuttmes and boundings of the several per-
sons' l^QOs adjoining; and where you cannot
loin to any known Tines,' you are to make ye
breadth of ye tract to bear at least ye propor-
tion of one third of ye length, as ye law of Vir-
ginia directs; you are also to insert ye name of
ye pilote and chain cari^yers made use of and
employed ; a plat of which said survey, with this
warrant, you are to give into this office any

time before ^ day of , next ensuing.

Given under my hand and seal of ye proprie-
tor's office, this day of , in ye

twenty year of his majesty King George

ye second reign.

Fairfax.

»»

2d. And a plat and certificate of survey bv
said Broadwater, in the words and figures fol-
lowing viz. :

"By virtue of a warrant from ye proprie-
tor's office, dated the 4th of April, 1750, grant-
ed to James Nickols one certam parcel or tract
of land situated and lying in. Frederick County :
Beginning at A, a sickHmore standing upon ^e
edge of Snenandoah, extending down ye said
river S 55 £. 44 poles to B; thence N. 88 £.
72 poles to C, a sicktanore standing upon ye

?itch of ve point of Shenandoah; thence up
^otomac N. 48 W. 200 poles to D, a chestnut
tree standing near Potomac River, side oppo-
site to asmfdl is^land; thence west 105 poles
to E, a white oak; thence S. 140 poles to F, a
red oak; thence east 150 poles to ye beginning,
containing 125 acres, surveyed by me.

Guy Broadwatbr.
Joseph Caktnell, ) n».«<« ^^^^^^
Joseph Nickols, [^^^ '^'^^
Indorsed: Deed issued 25th April, 1751."

An official certificate from S. H. Parker,
Register of the Virginia Land Office, dated
Ridimond, June 27th, 1854, in the following
words:

'• I, S. H. Parker, Register of the Land Of-
fice of Virginia, do hereby certify, that it does
not appear that any grant has been issued on
the survey made bv James Nickols for 125
acres of land in Frederick County to any per-
son except Robert Harper, to whom a grant is-
sued on the 25th day of April, 1751, which
date agrees with the date on Nickols' survey.
And I further certify that I can find no survey
of Robert Harper for 125 acres on file in this
office."

8d. A grant from the Lord Proprietor of the
Northern Neck, in the following words:

68 U.S.

1858.

Bbowv y. Hugbb.

80l!^823

" The Right Honorable ThomaB Lord Fairfax,

Baron of Cameron, in that part of Great

Britain called Scotland, proprietor of the

Northern Neck of Virginia:
To all to whom this present writing shall come,

sends greeting:

Enow ye, that for good causes, for and in
consideration of the composition to me paid,
and for the annual rent hereafter received, I
have given, granted and confirmed, and by
these presents, for me, my heirs and assigns,
do give, grant and confirm unto Robert Har-
per, of the County of Frederick, a certain tract
of waste and ungranted lands in the said
county, at the mouth of Shenandoah River,
and is bounded as by a survev thereof made by
Guy Broadwater, as followeth: Beginning at a
sTcamore standing on the edge of Shenandoah
River, and extending thence down the said
river N. 48" W., 200 N. 66 E., seventy- two
poles to a sycamore standing at the point, and
thence up Potomac River N. 48* W., two hun-
dred poles to a chestnut tree standing near
Potomac, opposite to a small island; thence W.
one hundred and five poles to a white oak;
thence south one hundred and forty poles to a
red oak; thence east one hundred and fifty
poles to the beginning, containing one hundred
and twenty-five acres, together with all rights,
membere and appurtenances thereunto belong-
ing, royal mines excepted, and a full third part
of all lead, copper, tin, coals, iron mines, and
iron ore, that shall be found thereon :

To have and to hold the said one hundred
and twenty-five acres of land, together with
all rights, profits and benefits to the same be-
longing, or in an V wise appertaining, except be-
fore excepted to him. the said Robert Harper,
his heire and assigns, forever.

Given at my office in the County of Fairfax,
within my said proprietary, under my hand
and seal, dated this 25th day of April, in the
24th year of our sovereign lord, George the
Second by the Grace of God, of Great Britain,
France, and Ireland, king, defender of the
faith; &c, A. D. 1751.

(Signed) Fairfax."

4th. The defendant offered in evidence the
last will of Robert Harper, deceased, the
grantA of the Lord Proprietor, with proof of
the probate and recording of that last will in
the court of Berkley County, on the 13th of
October, 1782. By the 1st clause of the will
disposing of his propertjr, the testator devised
to his nephew, Robert Griffith, *' one moietv or
half of his ferry survey, to form a straight
direct line to run along the two fences on the
east side, or that side next to the ferry, the one
fence 1;^ ing on the north, and the other on the
south side of the road leadine from the ferry
to Winchester; the sides of the above-men-
tioned fences to be a director, or to^ow where
each end of the division line shall terminate.
The end of the line leading to the Potomac to
terminate as soon as it strikes that river; the
end leading to Shenandoah to keep a straight
line till it likewise strikes said river, and to
contain and include the island opposite where
the said line strikes; then to run in my (said
Harper^s) line, adjoining Sample's line, to con-
tinue wiih said line andto include ninety acres
of a new survey; thence to continue its course
till where the mviding line shall strike the Po-

See 21 How.

tomac River, including therewith the saw-mill
and grist- mill of the testator." Bv the survey
and report of Trotter, this line, aenominated
Sample's line, is one of the courses delineated
upon the survey as a boundary to a tract of
land conveyed by one Gterahom Keys to John
Sample, on the 9th of June, 1763, and this line
is its southern termination, runs to the margin
of the Shenandoah River, and near to Harper's
house, as delineated on the plat, and to the
grist and saw- mill situated upon that river.

By the next disposition in his will, the tes-
tator devised to his niece, Sarah Harper, his
ferry and ferry house on Potomac River, and
all the remainder of his ferry survey, not be*
fore devised to Robert Griffith, and all his es-
tate in and right and title to the Maryland
shore of the said ferry, and to ten acres of land
upon what is called the Big Island in the Po-
tomac River adjoining the lerry aforesaid.

The defendant also gave in evidence the plat
and report of survey made as aforesaid in this
case by Trotter, ana evidence tending to prove
that the beginning comer of Harper's patent
was actually on the bank of the Shenandoah
River, as at A on the map; and that the third
corner of said patent was at or near the junc-
tion of the Shenandoah and Potomac Rivera;
and that the next comer of the patent, at the
distance of two hundred poles up the Potomac
River, was near the bank of said river at the
point G or 18 on the plat; and that the general
course of the said two rivera was as laid down
in the said plat in relation to the four said firat
lines of Harper's patent. Upon a comparison
of the survey made by Broadwater by order of
the Lord Proprietor with the copy of the pat-
ent from the Land Office, there will be perceived
this disagreement between these two docu-
ments with regard to the firat call in the loca-
tion of the land. In the survey as well as in
the patent, the beginning is stated to be at a
sycamore tree standing on the edge of Shenan-
doah River, and extending thence down the
river to a sycamore standing, says the patent,
at Uie point, and according to the survey, at
the pitch of the point of Shenandoah, thence
up the Potomac, &c. But whilst the firat
course in the survey in approaching the point
or the junction of the two rivera is S. E., the
same course is represented in the grant as run-
ning N. W. This is a manifest error on the
face of the grant, as the geographical knowl-
edge of every one compels him to know, that
the Rivera Potomac and Shenandoah in ap-
approaching each other run in a south and east
direction; and therefore, if this course in the
grant ran northwest from the point of begin-
ning, it would diverge more and more at every
step from the Potomac, and could never reach
the latter river. To correct this manifest er-
ror, if, indeed, proof be necessary in aid of the
geography of the country, or of the sensible
meaning of the patent itself, the defendant of-
fered evidence to show that the original parch-
ment patent had been lost; and further proof
to show that this original parchment |)atent
was in the yeara 1825 and 1827 in possession of
Mrs. Catharine Wager, widow of John Wager,
Jr., deceased, who was son of John Wager,
Sr., who was the husband of Sarah Harper,
the devisee of Robert Harper, the original pat-
entee. He further offered proof that the

127

805-330

BUPBXMB COUBT OF THB UKITBD STATBS.

Dbc. Tbrx,

courses and distances bad been copied from
said original in tbe years 1825 and 1827, re-
spectively, by tbe Deputy-Surveyor of Jeffer-
son County, wbere tbe lands lie, for tbe pur-
pose of survey, and were used by bim in a sur-
vey of tbe tract patented as aforesaid to Robert
Harper, between the Wagers, who claimed un-
der tbe said Robert Harper and tbe United
States; and offered further proof that the said
courses and distances bad in 1816 or 1818 been
copied from tbe same original patent by John
Peacber, a witness in this cause, then tbe own-
er of land binding on the lines of Harper's
gatent, a copy of which courses and distances
I as follows: "Beginning at a sycamore
standing on the edge of tbe Shenandoah River,
and extending thence down the said river S.
55 £. 44 poles. N. 66 E. 72 poles to a sycamore
standing on the point; and thence up Potomac
River N. 48 W. 200 poles to a chestnut tree
standing near tlie Potomac, opposite a small
island; thence W. 105 poles to a white oak, S.
140 poles to a red oak; thence E. 150 poles to
the beginning."

Tbe defendant then deduced title through
conveyances from the devisees of Robert Har-
per to Qeorge Washington, President of the
iFnited States, and bis successors, on behalf of
the United States. One of those conveyances,
bearing date on tbe 15tb of June, 1796, from
John Wacer tbe elder, tbe husband, and John
Wager, Margaret Wager and Mary Wager,
children of Sarah Harper, describing tbe land
conveyed as " all that piece of land situatCKl in
the County of Berkley commonly known as tbe
Harper's Ferry land, which was devised by tbe
will of Robert Harper, bearing date on or about
tbe 26tb day of September, 1782, to bis niece,
Sarah Harper, and is bounded by tbe River
Potomac on the outside, by tbe River Shenan-
doah on tbe other side, and by tbe line divid-
ing it from tbe tract or parcel of land devised
by tbe said Robert Harper to Robert Griffith
on the other side." And in the conveyance
from Robert Griffith, to devisee of Harper,
dated on tbe 9tb day of January, 1797, to
Thomas Rutherford and others, tbe grantors of
another portion of this land to George Wash-
ington for the United States, it is recited, "that
whereas Robert Harper, late of the County of
Berkley, and Commonwealth of Virginia, was
in his lifetime seised in fee of and in one cer-
tain tract of land situate, lying and being at the
confluence of tbe Potomac and Shenandoah
Rivers, in tbe County of Berkley, containing one
hundred and twenty-five acres, for which he
obtained a deed from the proprietor, &c. ; and,
being so seised, did by bis last will devise unto
bis nephew. Robert Griffith tbe elder, one
equal moietv or half of tbe above-described one
hundred and twenty-five acres of land, compre-
hending a saw milf thereon, and an island in
the Shenandoah opposite thereto." Tbe de-
fendant further proved that tbe United States
bad, between tbe years 1796 and 1800, erected
and established on the land in controversy the
necessary buildings for an armory and arsenal
for tbe manufacture and repair of arms, and
bad held and occupied and used, for the pur-
poses aforesaid, tbe land and buildings, from tbe
years above mentioned to the present time.
That tbe defendant is an officer in tbe military
service of the United States, attached to tbe

128

Ordnance Department, and as such was in
charge and in possession of tbe land in contro-
versy, with the buildings thereon, and tbe ar-
mory of tbe United States at Harper's Ferry,
under an order from the Ordnance Depart-
ment ; and that tbe lands aforesaid bad been in
tbe like charge of bis predecessors, under or-
ders and appointments from the Ordnance
Office or War Department of tbe United States,
from May, 1829, to the period when tbe de-
fendant took possession; and that, prior to tbe
vear 1829, as far back as tbe ^ear 1800, tbe said
lands and buildings were in hkecbsrge of other
persons in the service of tbe Unitea Statte at
said armoij.

Such bcmg the state of tbe evidence, the de-
fendant moved tbe court to give tbe jury tbe
following instructions, viz. : " That the patent
to Robert Harper, having its beginning comer
on tbe Shenandoah River, and calling to extend
thence down tbe river, by course and distance,
to tbe point wbere it appears, from tbe survey
made in this cause, the River Shenandoah
unites with tbe Potomac; and from that point
up tbe River Potomac, by course and distance,
to a corner near th^ last named river, opposite
to a small island. In construction of law, the
two rivers are thereby made tbe boundaries of
said patent, from said beginning on the Shen-
andoah to tbe last named corner on the Poto-
mac; and if tbe Jury believe, from tbe evi-
dence, that tbe lands claimed by tbe plaintiffs
la^ along tbe Rivers Shenandoah and Potomac,
within the lines of tbe patent to Robert Har-
per, extended as aforesaid to the two rivers, they
must find for the defendant — the patent under
which tbe plaintiff claims being junior to that
of Harper's, under which tbe defendant claims
— unless tbe plaintiffs should establish a title
to the lands in controversy other than through
their said patent."

On the same state of the evidence, tbe plaint-
iffs also moved the court to instruct tbe jury as
follows: "That the question as to how tbe
survey, on which this patent of Robert Harper
was issued, was actually run, is in this case a
question of fact for tbe jury; and if tbe Jury
believe that tbe line 'from the svcamore. at tbe
point of confluence of tbe Shenandoah and
Potomac Rivers, to the chestnut tree, wM act-
ually run a straight line, then that straight
line in the boundary of Robert Harper's pat-
ent. But tbe couit gave the instruction asked
for by tbe defendant, and refused to give the
instruction asked for by tbe plaintiffs; to which
opinions and action or tbe court — ^giving the
defendant's instruction, and refusing the plaint-
iffs' instruction— tbe plaintiffs by counsel ex-
cept, and their exceptions are here sealed by
tbe court.

John W. Bbockenbrough. [sbal.]"

Tbe correctness or incorrectness oi tbe decis-
ion of tbe circuit court, in granting the
prayer of the defendant, and in refusing that
presented b^ tbe plaintiff, is tbe subject of in
quiry in this case.

A striking peculiarity distinguishing this case
is perceived in the fact that it discloses an ef-
fort, by means obtained at a cost comparatively
nominal, to disturb and to destroy a possession
of more than half a century in duration; a pos-
session connected with public interests of pri-
mary magnitude; a possession acquirpd in re-

62S n. s.

1858.

Brown y. Hugbr.

805-^22

turn for a full and fair equivalent given, and
of R notoriety as extensive as the limits of the
nation.

Although the immunity created by lapse of
time may not have been directly interposed for
its protection, vet such an immunity as neces-
aarily disclosed by the evidence adduced on
both sides of this controversy, certainly does
not commend the pretensions of the plaintiffs
upon considerations of either justice or policy.
But beyond such general considerations, though
in strict accordance with them, let us inquire
whether, upon principles established and man-
datory, and inseparable from the maintenance
of social order and quiet, and of private right,
this attempt of the plaintiffs should not be re-
pelled.

The exceptions taken by the plaintiffs in er-
ror to the instructions of the circuit court, and
alleged as causes of error here, are stated as
follows:

1st. That the court withdrew from the jury
all questions touching the proof of the patent
and the particular boundaries thereof, though
the defendant's case consisted in showing the
boundaries, in the only copy of the patent pro-
duced, to be erroneous, and the patent to have
issued irregularly, and without a precedent sur-
vey for the patentee.

2d. That the court withdrew from the jury
the question whether the 4tb point of the sur-
vey of the defendant's patent, being in fact
fuar and not on the river, was, under all the
circumstances of the survey, on or near the
river; or whether the river or the right lines
mentioned in the patent was the true bound-
ary.

[n examining this first objection, and the
foundation on which it is made, it appears that
the original entry for the land in controversy
was in the name of James Nickols; that the
order of survey from the Lord Proprietor to
the Surveyor, Broadwater, was for a survey
upon thai entry; and that the survey made and
returned by Broadwater was upon that entry;
but it equally appears that the patent issued by
the Lonl Proprietor refers to and adopts the
survey of Broadwater with respect to its own
date, the date of the warrant and the quantity
of the Land surveyed, and grants the land so
surveyed to Robert Harper. From the records
of the Land Office of Virginia, comprising the
records of the proprietary, it is shown that on
the survey made in the name of James Nickols
for one hundred and twenty-five acres of land
in Frederick County, a patent was granted by
the Lord Proprietor to Robert Harper on the
25th day of April, 1751, which date corre-
sponds with that indorsed upon Nickols' sur-
vey. It is not, therefore, perceived upon what
ground the regularity of the proceeding an-
terior to the patent to Harper, or the authority
to issue it, can be assailed. It does not appear
that any exception to either was taken in the
court below, and therefore, if at any time avail-
able, it is not allowable here.

With regard to the second part of this objec-
tion, that which claims for the jury the con-
struction of the patent, we remarK that the
patent itself must be taken as evidence of its
meaning; that, like other written instruments,
it must be interpreted as a whole, its various
provisions be taken as far as practicable in con-
Bee 21 How. U. 8., Book 16

nection with each other, and the legal deduc-
tions drawn therefrom must be conformable
with the scope and purpose of the entire docu-
ment. This construction and these deductions
w^e hold to be within the exclusive province of
the court. The patent itself could not be al-
tered by evidence aUunde; but proof, as to the
existence and character of the objects or sub-
jects to which it was applicable, was regular
and even necessary to give it effect.

In ascertaining the boundaries of surveys or
patent, the universal rule is this: that wherever
natural or permanent objects are embraced in
the calls of either, these have absolute control,
and both course and distance must yield to their
infiuence.

Upon recurrence to the survey by Broadwa-
ter, from the beginning at A, a sycamore stand-
ing on the edge of Shenandoah (a point admit-
ted by all the parties to be the beginning in
Harper's Ferry tract), the survey calls for a
course extending down the said nver 8. 55 E.
44 poles to B; thence N. 66 £. 72 poles to C, a
sycamore standing on the pitch of the point of
Shenandoah; thence up Potomac N. 48;W. 200
poles to D, a chestnut tree standing near the
Potomac River side, opposite a small island;
thence W. 195 poles to E, a white oak ; thence
8. 140 poles to F, a red oak ; thence E. 150 poles
to the beginning. The patent from the Lord
Proprietor, granting the land to Barper at the
mouth of the 8henandoah River, professes to
make the grant, and to give the boundaries of
the land and the quantity thereof according to
the survey by Broadwater, and commences the
description, as taken from that survey, as fol-
lows: beginning at a sycamore standing on the
edge of Shenandoah River, and extending thence
down the said river. At this point in the de-
scription are interposed the letters and figures
(N. 48" W. 200 N.) It is evident that these
letters and figures have been interpolated in this
place by an error; perhaps in recording the pat-
ent. This seems to follow from the fact that
these letters and figures, as thus placed, have no
sensible meaning. N. 48" W. 200 N. mean
nothing; they point to no object, and neither
are they connected with any distance. Imme-
diately following these letters and figures are
the several descriptive calls of the patent, cor-
responding with the courses and distances and
objects contained in the survey which it had
referred to and adopted. The fact of this in-
terpolation is also shown by the circumstance
that farther on in the description, both in the
survey and patent, of the courses and distances
bordering on the Potomac, there is given, com-
mencing at the point or confiuence of the two
rivers, the course of N. 48" W. 200 poles to a
chestnut tree standing on the Potomac opposite
a small island, which part of the description
was doubtless wrested from its proper position,
and transferred to another in which it could
convey no intelligible meaning, and from which
it should be expunged as absurd and of no ef-
fect. It is proper here to observe that neither
in the survey nor the patent for the Harper's
Ferry tract is there a course, or a distance, or a
station, which is inconsistent with or in oppo-
sition to a river boundary; but on cither side
of that tract facing the river, a riparian or riv-
er boundary is obviously intended. Thus, at
the Shenandoah, the commencing point is at a

9 12U

856-866

8DFBBMX COUBT OV THB UhITBD 8tATB8.

Dbc. Tbrm,

tree on the edge of the river; thence down the
river to a point of the Shenandoah (meaning the
river, of course, as there was no other object
bearing that name) ; at thin point is the conflu-
ence of the two rivers. Thence the course is
up the Potomac N. 200 poles to a chestnut tree
standing, in the language of the survey, "near
Potomac River side/' and in that of the patent,
"near Potomac."

The question then propounded by the prayers
to the court below was a question of law aris-
ing upon the construction of the two patents
—the one from the State of Virginia in 1851,
the other from Lord Fairfax in 1750.

If, as is contended by the defendant, the calls
in the patent to Robert Harper, and in the sur-
vey on which it purports to be founded, extend-
ed to the Rivers Shenandoah and Potomac, such
a construction must be conclusive of this con-
troversy ; it leaves no question to be determined
by the Jury as to the running of an artificial
line; it fully sustains the decision of the circuit
court upon the prayers respectively offered by
the parties. ,

The citation from the treatise by Angell on
water-courses fully declares the rule to l^, that
where a line is described as running in a cer-
tain direction to a river, and thence up or down
with the river, those words imply that the line
is to follow the river according to its meander-
ings and tumings,and in water-courses not navi-
gable must be ** ad medium JUum aqua" Up-
on a question of boundary in the case of Jaat-
9on V. Law, in the 12th of Johnson's Reports,
255, in ejectment, the court, in construing a
provision in a deed in these words: ** leading to
the creek, and thence up the same to the south-
west comer of a lot," &c., say, " there can be
no doubt but this lot must follow the creek up-
on one of its banks or through the middle.
This description can never be satisfied by a
straight line. The terms * up the same ' neces-
sarily imply that it is to follow the creek accord-
ing to its windings and turnings, and that must
be the middle or center of it."

In the case of Mayhete v. Norton, 17 Pick.,
857,a grantor had conveyed land to be bounded
by the harbor of Edgartown. The Supreme
Court of Massachusetts decided that the flats in
front of the lots conveyed passed by the deeds,
because thev were in the harbor, although the
quantity of land conveyed and the length of the
lines would have been satisfied by applying
them to the upland alone. In the case of docke
rell V. MeQuinn, 4th T. B., Mon., 62, the cir-
cuit court, in ejectment, had instructed the
Jury upon a (question of boundary that the fol-
lowing calls in the patent : "thence from the
fourth course down t he river these several courses
should be construerl by the jury as a call to
run down the river bounding thereon, with ita
meanders," &c. The Supreme Court, to whom
this cause was carried by writ of error, sav:
" In cases of boundary which depend upon the
swearing of witnesses, it woiild no doubt be in-
competent for the court, by any sort of instruc-
tions that mi^ht be given, to withdraw from
the Jury a decision upon the weight of the tes-
timony and the facts which the testimony con-
duces to establish." But the case under consid-
eration is not one of tnat sort. The question
for our consideration involves no inquiry into
the testimony of witnesses; but, on the contra-

180

ry, in the absence of all parol evidence as to
marked lines, presents for the determination of
the court the construction of the calls for bound-
ary mentioned in the patent,and surely none will
pretend that the legal construction of a patent
IS not a matter proper for the decision of a
court. If, in the first branch of the instructions,
the court was correct in supposing that the call
in the patent to run down the river Uiese several
courses. &c., should be construed as a call to
run with the river, it was unquestionably cor-
rect to instruct the jury that the north fork be-
tween the fourth corner of the patent and the
beginning formed part of the boundary ; and
that in the first branch of the instruction the
court gave a correct construction of the odls of
the patent, we apprehend there can be>no ground
for reasonable doubt.

In the case of NeiMom v. Pryor, 7 Wheat. ,
10, it is laid down by this court as a rule for the
construction of surveys and grants, that the
most material and certain calls must control
those that are less material and certain. A call
for a natural object, as a river, a known stream,
or a spring, or even a marked tree, shall control
both course and distance.

The recent decision of French v. Bankhead,
in the 11th of Gralt., 186, decided by the Su-
preme Court of Virginia, within which State
are the lands embnu^ in this controversy, has
an important bearing upon the cause, as it showa
the interpretation, by the highest tribunal of
that State, of grants made by her with refer-
ence to lines running to water courses, and of
the effect of water-courses upon such bounda-
ries. In the case just mentioned it was ruled
that the water boundary, though run by course
and distance, would be controlled by the actual
course of the shore, and would pass the right
to the property of low water mark.

Upon the reasoning hereinbefore declared,
and upon the authorities cited, to which others
might be added, we are of the opinion that the

Satent from the State of Virginia, of the date of
uly 29, 1851, was unwarranted and illegal, as
having embraced within it lands which were
not waste and unappropriated, but which had
been previously granted by competent authori-
ty, and long in tune possession of the patentee
and those claiming title under him. We are
further of the opinion that the construction of
the circuit court in relation to the chmcter
and effect oi the elder and junior grants of Uie
land in oontroverBy was correct, and that iU
decision should thertfore be,. as it is hereby qf-
flrmed, with eosCs.

THE UNITED STATES, Flf, in Br. .

THE CITY BANK OP COLUMBUS,

(See 8. C, 21 How., 856-806.)

Cashier of bank, when cannot create agency for
bank — aut/iority of.

A letter written by the cashier of a Bank, that the
bearer was authorized to contract, on behalf of the
Rank, for the transfer of money from the Bast to
the South or West for the ffOverniDent does not
come within his duties or authority as cashier, and
does not bind the Bank.

The ordinary duties of oashiers of banks do not

62 U. 8.

1868.

Unitbd Statbb ▼. CiTT Bask of Columbus.

856-866

oomprebend a contract whieh involves the pay-
ment of monoy, made by a cashier, without an ex-
press delegation of power from a board of direotors
to do so, unless it has been loaned in the usual way.
Nor can a cashier create an airency for a bank
which he had not been authorized to make by those
to whom has been confided the power to manage
its business, both ordinary and extraordinary,

Argu0d Jan. S7, 1859, Bedded Feb, U, 1859,

IN ERROR to the Circuit Court of the
United States for the Southern District of
Ohio.

This action was brought in the court below
by the plaintiffs in error, to recover the sum of
$100,000. Thetri^lof the cause in the said
court having resulted in a verdict and judg-
ment in favor of the defendant, the plaintiffs
sued out this writ of error.

The facts of the case are more fully stated by
the court.

Mr. J. S. BUek, Atty-Gen., and Mr. HuUt
for the plaintiffs in error.

Mr, Henry StaAberrjTt for defendant in
error:

The first inquiry is as to the power of the
Cashier, in virtue of his office, to^make such a
oontract as the one in question, or rather to
authorize another to make it.

The powers and duties of a bank cashier
have been more than once considered and de-
fined by this court.

In FUekner v. Bank of the U. 8., 8 Wheat.,
800, the powers of a cashier are very fuHv
stated, and it is said that he is intrusted with
the funds and securities; that he is authorized
to receive and Day debts; to draw checks on
other banks, ana indorse the negotiable securi-
ties. In Bank of U. 8. v. Bunn, 6 Pet. , 69, the
court say : The airreement was not msde with
thoee persons wholiave power to bind the bank
in such cases. It is not the duty of the presi-
dent or cashier to make such contracts, nor have
they power to bind the bank except in the dis-
charge of their ordinary duties. All discounts
are made under the authority of the directors,
and it is for them to fix any conditions which
may be proper in loaning money."

See, also. Kirk v. BeU, 12 Eng. L. <& £q., 8$9;
Ooffi ▼. Thomjpwn, 5 N. Y., 882.

U is stated in the record that the City Bank
is a Corporation formed under the Bank Act of
Ohio of 1845.

Ohio Stats., Vol. XLIII., p. 24.

The 4iHh section of the Act provides that
«nhe affairs of every company formed and or-
ganized to carry on the business of banking
under the provisions of this Act, shall be man-
aged by not less than five nor by more than
nine, directors."

See, also, the 56th and 67th sections of the
same Act, and the case ot Bank of Augusta v.
JSarU. 18 Pet., 587.

Upon these authorities and this carefully
guarded charter, it is impossible to maintain that
such a contract as we have here was within the
power of the cashier.

In the first place, it would be a matter of
srave consideration and very proper for the de-
liberate Judgment of the Boaid of Directors, to
enter into any pecuniary liability to the United
States, subjectmg the Bank, it might be to the
serious consequences which attach, on the foot-
ing of priority of warrants from the Treasury

See 21 Bow.

Department, for delinquency in meeting an en-
cragement touching the public money. So, too,
the magnitude of the sum, the distant point of
payment, the uncertainties and fluctuations in
the rates of exchange, the place of makinfi: the
contract, the place of its performance both
without the State in which the Bank was situ-
ated,- the danger of violating the charter, and
the amount of debt incurred, all these consid-
erations demand the supervision of a managing
element of the Corporation.

2. The provisions of the charter do not en-
large the usual 'powers incidental to the office.
As to the by-law, it specifically limits the pow-
ers of the Cashier to the transaction of "the or-
dinary business of the bank," and carefully ex-
cludes "any discount negotiation or contract."

8. The only effect of the letter of the Cashier
being copied into the letter book would be. to
raise a presumption of knowledge on the part
of the directors; but as it was proved that it
was not the usage of bank directors to inspect
the letter book no such presumption is raised.

4. The knowledge of Miner, one of the di-
rectors, does not bmd the Bank in a matter
which requires the knowledge and sanction of
the Board.

5. It may be argued that the letterof Moodi6
purports to be a certificate that Minor was duly
authorized by the Bank; and as the Cashier is
the certifying officer of the acts of the Board,
the Bank is estopped from denying the truth
of this certificate.

But this letter contains no certificate of an
authority given by the Board; but if it did, the
Bank would not be bound. The principal i»
not liable, where the agent clothes his unau-
thorized act with a false representation of au-
thority.

This subject is well discussed in TheMeehan-
ie'8 Bank v. 2ha Jf. T. d: Jf. H, R. R, Co., 3
N. Y., 636.

There was no error in the charge of the court
whether we consider the authority of the Cashr
ier as depending on the nature of his office, or
the provisions of the charter.

This Cashier had no power to constitute the
agency of Minor, '.or to bind the Bank in the
premises.

Mr. JtM^tM Wayne delivered the opinion of
the court:

The only question arising on this record is,
whether the court erred in so much of the
charge to the jur^ as is set out in the bill of ex-
ceptions. Objections were taken in the course
of the trial to testimony, but no exceptions
were taken to the rulings of the court upon
them. The declaration in the case contained
two counts — one of them alleging that a con-
tract had been made between the City Bank of
Columbus and the United States, by which the
Bank agreed, on the 1st November, 1866, to
transfer $100,000 of the public money from
New York to New Orleans by the 1st of Janu-
ary, 1851, free of charge; and the other account
for money had and received by the Bank for the
use of the United States.

The charge given by the court was confined
to the first count. Tlie bill of exceptions sets
out the following evidence, which was intro-
duced by the United States to show a contract
with the Bank.

36A-866

SUFRBICB GOUBT OF THE UhITBD i^ATBB.

Dec. Tkrm,

The following letter was written by the Cash-
ier of the Bank:

City Bank of Columbus. )
Columbus. Ohio, 26th October, 1850. )

Sib : The bearer. Colonel William Miner, a
director of this Bank, is authorized, on behalf
of this institution, to make proposals for the
purchase of United States stocks to the amount
of one hundred thousand dollars. He is also
authorized, if consistent with the rules of the
Treasury Department, to contract, on behalf of
this institution, for Uie transfer of money from
the East to the South or West, for the GJovern-
ment.

I have the honor to be, sir, your obedient serv-
ant, Thomas Moodib, Cashier.
Hon. Thomas Cobwin,

Secretary of the Treasury, Washington City.

This letter was presented by Mr. Miner to
Mr. Corwin on the 1st of November. 1850.
On the same day, Mr. Corwin wrote to Mr. Mi-
ner the following letter:

Tbeasuby Dbpabtmknt, November 1, 1850.

Sib : Your proposition of this vate, to trans-
fer $100,000 from New York or Philadelphia to
New Orleans, by the first January next, free
of charge to the Department, is accepted. You
will receive herewith a transfer draft on the As-
sistant Treasurer at New York, in favor of the
Assistant Treasurer at New Orleans, for $100,-
000, with the authority indorsed to make the
payment at New York to you.

I am, very respectfully,

Thomas Cobwin, Secretary.

This was followed by an undertaking for the
transfer of $100,000 for the Qovemment from'
New York to New Orleans:

Washington City, November 1, 1850.

This will certify that I have contracted with
the United States Treasury, as the agent of the
City Bank of Columbus, to transfer $100,000
from New York to New Orleans, to be de-
posited in the Treasury at the latter named city
by the first day of January, 1851, free of
charge. I have, in pursuance of said contract,
this day received a draft in my own hand for
one hundred thousand dollars' on the United
States Treasury at New York City, which is to
be accounted for in said contract.

William Minbb.

Miner received the draft, and cashed it in

Serson on the 2d November, 1860; but what he
id with it no one knows, or this record does
not show. It is certain that it was not repaid
in New Orleans according to the contract; and
there are no proofs on this record which can
raise a presumption that the Bank of Colum-
bus ever received a dollar of it. There is proof
that Miner was all that time a director of the
Bank, and that Moodte, who gave him the letter
to the Secretary of the Treasury, was the cash-
ier, and tiiat he signed bis name to the letter as
cashier, and that the letter had been copied in-
to the letter book of the Bank. A by-law of
the Bank was also put in proof, to show that it
might be inferred f rqm it Uiat he had authority,
as cashier, to empower Mr. Miner, as a direct-
or of the Bank, to enter into such a contract
as he had made with the Secretary of the
Treasuiy. The by-law is: "A committee of
two shall be appointed every six months to ad-
vise with the president and cashier. In their

182

absence, all the ordinary business of the bank
may be done by the president and cashier; and
if either of them be not present, then by the
other alone; but any discount, negotiation or
contract, whether made by the board or commit-
tee, is to be done by the consent of all pres-
ent."

It was also shown that there had not been a
meeting of the directors in either July or Au-
gust, 1850. That there had been a meeting on
the 31st September, 1850, and another Novem-
ber 4th, 1850, nine days before the cashier gave
his letter to Miner, and three days after the
date of Miner's contract, to transfer the money
from New York to New Orleans. The min-
utes of the Bank, as kept bv the cashier, of the
meetings of the directors, do not show any in>
tention upon the part of the directors to enter
into a contract for the purpose of buying stock
of the United States, or for the transmission of
the money of the United States from Uie East
to the South or West, as Moodie expresses it in
his letter; or that after the negotiation of Miner,
and his receiving the money from the Assistant
Treasurer in New York, that the directors or
president of the Bank had any knowledge of
the transaction until after Miner's default to
pay the amount at New Orleans. Moodie tes-
tifies that he wrote the letter of the 26th of Oc-
tober, 1850, for Miner to negotiate with the
Secretary of the Treasury, wiuout the knowl-
edge of the president or any of the directors of
the Bank, except Miner himself; and that the
fact that such a letter had been written was not
communicated by him to any of the directors
until January after, though he had caused a
copy of it to be put in the letter book. All of
the directors, at the time of the transaction,
have sworn that Moodie had not been author-
ized by the board or by any of themselves to
constitute Miner such agent; that they had no
knowledge of Moodie*s letter, and that they
never sanctioned the same. And there is other
testimony in the case, that Moodie, as cashier,
had not the power to depute Miner for any
such purpose, and that it would not have been
done but by a resolution of the board of direct-
ors. Upon this evidence, and some other which
it is not material to notice, the court charged
the Jury. After they had retired, and con-
sulted for some time, they came into court and
asked for further instructions, and the court
gave them the following charge in reference to
the contract set out in the first count of the dec-
laration: "That if they should find that the
letter written by Moodie was his own act, and
had been given without the knowledge or au-
thority of the board of directors, or any of them
individually, except Miner, and that the agency
of Miner was not constituted by or known to
the board of directors, or the directors individ-
ually, or any of them except Miner, but was the
act of the cashier alone; and if they should find
that Moodie had no power as cashier, except
such as belonged to the office of cashier gener-
ally, or such as are given by the charter or by
the by-law or other law or usage of the said
Bank, that the defendant was not concluded by
that letter, and is not bound by the contract
made by Miner, without some subsequent rati-
fication of the same, though the Secretary had,
in contracting with Miner, relied upon it as the
act of the Bank."

62 U. 8.

18S8

United States y. Citt Bank of Coluicbub.

856-866

To this charjre the plaintiff excepted, and,
on -account of that exception alone, the case
has been brought to this court by writ of error.
In our opinion, no charge could have been
more comprehensive of the merits of the case,
more precise in its application to the particulars
of the testimony introduced by the plaintiff
and the defendant, or more expressive of what
the law is upon such a state of facts. It is all
that the litigants could have expected, and is
liberal to both.' It is also in coincidence with
the views generally entertained of the powers
and duties of the cashiers of banks, by those
most familiar with the management and busi-
ness of banks, and perfectly so with such as
have been expressed by this court in previous
reported cases. In Fleckner v. The Bank of the
United States, 8 Wheat.. 888, 856, 857, this
court said, the charter authorizes the president
and directors to appoint a cashier and other
officers of the Bank, and gives the president
and directors, or a majority of them, full power
and authority to make all such rules and regu-
lation» for the government of the affairs and
conducting the business of said Bank, as shall
not be contrary to the Act of Incorporation. It
contains no regulations as to the duties^ of
cashiers; with the directors it would rest to fix
the duties of cashier or other officers. Whether
they have made any regulation upon this sub^
ject, does not appear; but the acts of the
cashier, done in the ordinary course of the busi-
ness actually confided to such an officer, may
well be deemed prima facte evidence that they
fell within the scope of his duty. In the case of
Bank of the United States v. Dunn, 6 Pet., 51,
the court would not permit the president and
cashier of the Bank to bind it by their agree-
ment with the indorser of a promissory note,
that be should not be liable on his indorsement.
It said it is not the duty of the cashier and
president to make such contracts, nor have
they power to bind the Bank, except in the
discharge of their ordinary duties. All dis-
counts are made under the authority of the di-
rectors, and it is for them to fix any conditions
which they may think proper in loaning money.
The court defines the cashier of the Bank to
be an executive officer, by whom its debts are
received and paid, and its securities taken and
transferred, and that his acts, to be binding
upon a bank, must be done within the ordH
nary course of his duties. His ordinary duties
are to keep all the funds of the Bank, its notes,
bills, and other choses in action, to be used
from time to time for the ordinary and extraor-
dinfljy exigencies of the Bank. He usually
receives directly, or through the subordinate
officers of the Bank, all moneys and notes of
the Bank, delivers up all discounted notes and
other securities when they have been paid,
draws checks to withdraw the funds of the
Bank where they have been deposited, and, as
the executive officer of the Bank, transacts most
of its business.

The term '^ordinary business," with direct ref-
erence to the duties of cashiers of banks, oc-
curs frequently in English cases, and in the re-
ports of the decisions of our state courts, and
m no one of them has it been judicially allowed
to comprehend a contract made by a cashier,
without an express delegation of power from

8ee 81 How.

a board of directors to do so, which involves
the payment of money, unless it be such as has
been loaned in the usual and customary way.
Nor has it ever been decided that a cashier
could purchase or sell the property, or create
an agency of any kind for a bank which he
had not been authorized to make by those to
whom has been confided the power to manage
its business, both ordinary and extraordinary.
The case of Kirk v. BeU, 71 Eng. C. L. Rep.,
889, and that of Hoytv. Tfumpson, 5 N. Y.,
320, were very appropriately cited by the coun-
sel of the appellee, in this connection; and we
think the sate rule in all instances of acts done
by the officers of corporate companies, or by
those who have the management of their busi-
ness, from which contracts are alleged to have
been made, is. to test that fact by an inquiry
into the corporate ability which has been given
them and to their subordinate officers, or which
the directors of the company can confer upon
the latter to act for them. Such was the view
of this court when it decided, in the case of The
Bank of the United States v. Dunn, 6 Pet.. 61,
that a release given by its president and cashier
to the indorser of a promissory note of his lia-
bility upon it. did not bind the Bank, neither
nor both having any authority to make con-
tracts of that kind. The case before us is one
in which a cashier acts alone, and in which he
testifies that he did so without any consultation
with the president or directors of the Company,
and of which they had no information from him
of the transaction until after the failure of Miner
to pay the money in New Orleans. The Act
.under which the City Bank of Columbus be-
came a Corporation does not, in any part of it,
give any power to a cashier to act independ-
ently of the directors. No specific power is
given to the directors to appoint a cashier. In
the general power given to the directors to ap-
point officers to do the ordinary business of the
Bank, they have an authority to appoint a
cashier, and such an appointment is a limitation
of that officer's executive function in doing the
business of the Bank. It cannot be pretended
that the directors, as a whole, or any one of
them, except Miner, consented to the Cashier's
designation of Miner for any such purpose as
was concluded between them, to induce the
Secretary to believe that Miner was the agent
of the Bank, either to buy stock of the United
States or enter into contracts for the transmis-
sion of money, free of charge, to those posts
where the United States should designate it to
be put. Such a power in the Secretary of t)ie
Treasury is a necessary one for the transaction
of the business of the Gk>vernment, pervading,
as it does, every part of the country. The ex-
ercise of it, however, requires great care and
caution in the selection of agents for such a
purpose, and no authority short of the most
certain should be taken to establish the repre-
sentative character of any one for a private
company or corporation to enter into such a
contract with the Secretary.

The United States, as plaintiff in this action,
hss failed to establish the contract which it al-
leys in its declaration had been made with the
City Bank of Columbus, for the transmission
of money ; and toe direct the judgment, gioen in
the court below, to be affirmed.

188

894-^97

BuFBBMS Court of thx Ukitbd Statbb.

Dbc. Tbrm.

FRANCIS MARTIN, Administrator of Dss-
NI8 T. Donovan, Deceased, Plff. in Er.,

CHRISTIAN IHMSEN.

(See 8. C, 21 How., 9M-307.)

In Louisiana, assignee of account, may sue in his
own name — novelty in practice — proceedings
in state court, when interruption to pre-
scription.

In liOuislana, by the rule of the civil law, the
equitable owner of an account can sustain suit In
his own name; and asf^ierunients to prove his title
may be received in evidrnoe.

where the District Judge refused to sign and seal
a bill of exceptions six months after trial, but
signed a bill of exceptions taken to his decision
refu«'ing' to sign one: this is a novelty in pracUoe
which requires no notice.

The prooeedfncrs in the Fourth District Court
were an interruption of the prescription pleaded
within the »484th and 8486th secttons of the Civil
Code of Louisiana.

Argued Jan, f 5, 1869, Decided Feb, U, 1869,

IN ERROR to the Circuit Court of the
United States for the Eastern District of
Louisiana.

This case arose on a petition filed in the
court below, by tlie defendant in error, to re-
cover the balance of accounts alleged to be due
from the defendant below to the firm of Owen
& Ibmsen.

The case was tried without a jury, and re-
sulted in a judgment in favor of the petitioner
for $20,148.60. with interest and costs; where-
upon the defendant brought the case here on a
writ of error.

A further statement of the case appears in
the opinion of the court.

Mr. R. H. Oillet, for plaintiff in error:

1. The evidence of Richards concerning
plaintiff's accounts was illegal, and ought to b«
rejected.

Church V. Hubbart, 2 Cranch, 187; Smith ▼.
Carrington, 4 Cranch, 63; McLanahan y.
Universal Ins. Co., 1 Pet., 170; Arthurs v.
Hart, 17 How., 6.

2. The papers purporting to be an assign-
ment of the demand m question from C. and
F. R. Lorenz and J. J. Gray to the plaintiff
were improperly admitted in evidence.

(a) No such transfer was alleged in the
petition.

{b) The laws of Pennsylvania did not au-
thorial the administrators of Frederick Lorenz
to sell and convey a demand contracted in
Louisiana against a resident there, so as to
authorize the purchaser to sue in the latter
State.

Dixon Y. Ramsay. 3 Cranch, 819; Kerr v.
Moon, 9 Wheat., 565; Vaughan v. Northrup,
15 Pet.. 1; Fenwick v. Sears, 1 Cranch, 259.

3. There is no sufficient evidence that Owen
and Ihmsen ever assigned the demand in
question to Frederick Lorenz.

La. Code, arU. 2418. 2414, 1758. 1759, 1792.

4. The court erred in refusing to prepare
and report a statement of the facts proved in
this cause

U. 8. ▼. King, 7 How., 833, 844; La. Code

184

Pr., 602, 603; Wecfm ▼. George, 18 How., 190.

5. The demand in question was barred by
the Statute of Limitations.

La. Sess. Laws, pp. 90. 91, 5th March. 1852;
the Act of March 14, 1848; Bank of Alabama
v. DaUon, 9 How., 522.

Mr. J. P. Beiijftmln» for defendant in
error:

The allegation in the petition, that the
plaintiff below was "transferee of Frederick
Lorenz, who was transferee of Owen and
Ihmsen,*' was sufficient under the practioe of
Louisiana.

McGrew v. Browder, 2 Mart. N. 8., A.l\
Ory V. Winter, 4 Mart. N. 8., 280; Childress v.
Datis, 15 La.. 492.

The objection that *'it did not appear that
by the laws of Pennsylvania the administrator
had the right to make such transfer," is evi-
dently an objection not to the admissibility,
but to the effect of the instrument.

The next objection was. that the transfer
from Owen and Ihmsen to Lorenz *'was not
signed by Lorenz, nor was there any' proof
that he had accepted the transfer."

Wc know of no rule of law which requires
the assignment of a debt to be siji^ned by the
assignee. The refusal of the district judire to
prepare a statement of facts after judgment
cannot constitute error in the judgment so as
to justify its reversal.

As to the plea of prescription :

1. The court below was satisfied, upon the
proof, that plaintiff in error owed the whole
amount, which he was condemned to pay.

2. The defendant in error had furnished
satisfactory proof of his title to the debt.

3. The prescription was interrupted by a
litigation, which was pending between the
parties shortly before the present suit was in-
stituted.

Mr. Justice Oiier delivered the opinion of
the court:

Donovan was defendant below in an action
for a balance of accounts, claimed as due by
him to the firm of Owen & Ihmsen. This
claim had been transferred by that firm to one
Frederick Lorenz, and, after his death, trans-
ferred to Ihmsen, the plaintiff below.

The cause was tried, by consent of parties,
without the intervention of a jury; conse-
quently, the. exceptions to the admission of
testimony are irregular, and need not be par-
ticularly noticed. Besides, we can see no good
CTOund of objection to the evidence of con-
fessions and admissions of. a party, consisting
of accounts rendered in a former controversy
on the same subject, before arbitrators. The
award itself was not received by the court aa
evidence of the amount of debt due, because
it bad been set aside for some irregularity.

The objections to the admission of the paper
showing the transfers of the account were
equally without foundation. By the law of
Pennsylvania, where these transfers were
made, Ibmsen would have an equitable inter-
est in the account; but in that State the mere
equitable assignee of an account would not sue
in his own name, such chose in action not be-
ing assignable at common law. There the suit
would have been brought in the name of Oweo

H2 U. S.

1868.

Uhitbd Statbs y Ntb.

408-418

& Ihmsen, the original creditors, for tlie use
of Lorenz, Ibmsen, or any person holding the
equitable right to the account. But in Loui-
siana, where, by the rule of the civil law, there
is no such distinction between the legal and
equitable title, Ihmsen, as equitable 'owner,
could sustiun the suit in his own name, and
the assignments admitted to prove his title
were properly received.

This case was tried at April Term, 1856,
The president judge has reported his finding
of the facts, and his judgment thereon. Some
six months afterward, the defendants below
made up a statement of facts (to which the
plaintiff refused his assent) and presented it
to the district judge, and demanded that he
should seal a bill of exceptions. This the
Judge properly refused to do, but signed a bill
of exceptions taken to his decision refusing to
sign one. This novelty in practice requires no
further notice.

The only question of law arising on the facts
of this case as reported by the court was on the
plea of prescription. On this point, the court
gave their opinion as follows:

"Without considering the questions whether
the account in this case is an open account,
within the meaning of the Statute of Loui-
siana, or whether the statute operates upon de-
mands that were subsisting at its date, our
coDclusion is, that the proceedings in the
fourth district court, relative to t&e award,
were an interruption of that prescription.
There was a suit pending between the parties,
the present defendant being the plaintiff,
which embraced a portion of the matter of
this controversy. It was competent to the de-
fendants, by instituting a demand in reconven-
tion, to bring up the whole of the controversy
for a settlement in that suit; and if that had
been done, a legal interruption would have re-
sulted within the 8484th, 8485th sections of
the Civil Code. Drigga v. Morgan, 10 Rob.,
120. This was not formally done on the rec-
ord, hut the parties did, by consent, that which
we are bound to consider as having an equiva-
lent value.

* 'They came to an agreement that arbitrators
selected by them should have the power to de-
cide who was the creditor of the contesting
parties, to settle finally ('without appeal*) the
amount due on either part, and that the attor-
ney of either party might move for judgment
on this award. It is clear, that had the arbi-
trators proceeded regularly, and a judgment
been rendered upon it, that no exception could
have been taken to the condition of the plead-
ings in the pending suit, or that there had not
been a demand in reconvention. The consent
in the submission agreement implied a waiver
of all pleadings of that nature, and was a re
lease of all errors in the preliminary stages of
the suit. Donovan appeared in the diHtrict
court, and successfully resisted a motion for
judgment upon the award rendered. But the
Code does not require that a suit should be
successfully prosecuted to operate as an inter-
ruption of prescription. Trop. de Pres., sec.
561; Dann v. Kinney, 11 Rob., 249; Badon
▼. Bahan, 4 La. Ann., 468."

We tee no error in this etatement of the law,
and eoneequenily affirm the Judgment mt?i eoete.

21 How.

THE UNITED STATES, Appt.,

MICHAEL C. NYE.

(Seo S. C. 21 How., 40M12.)

8iUier*i ** general tiUe** — not vaUd — aJbrogaied —
copy given after abdication of MicheUorena,
conferred no title.

Mlcheltorena, Oovernor of California, while con-
tlned to his capital by forces of insurgents, who
were determined to drive him from the coun-
try, iMued a decree by which be conferred upon
citizens who had solicited lands* the property of the
lands desiflrnated in their respective applications,
and who bad obtained the favorable injitrme of
said Sutter, authorizinfir Sutter to give them here-
after a copy thereof, to serve them for a formal
title, to present to the Government in order to ex-
tend the title in due form. Such decree was sent to
Sutter to enable him to raise a military force to
assist the Governor, and was known as Sutter's
** general title."

Held, that the decree had no siflrnlflcatlon except
as an appeal to Sutter and the persons under bis
influence, to come to the Governor's relief, and
a promise to them that he would give them the
land in case of their assistance so that he was suc-
cessful:

Also held, that the power flrlven Sutter was abro-
gated when Mlcheltorena was compelled to abdicate
and leave the countrv. i

And that a copy of such decree given by Sutter
to claimant more than a year after the abdication
of Mlcheltorena conferred no title to land.

Argued, Jan, 17, 1869, Beaded Feb. U, 1869,

APPEAL from the District Court of the
United States for the Northern District of
California.

This case arose upon a petition filed before
the Board of Lana Commissioners in Cali-
fornia, by the appellee, for the confirmation of
a claim for four leagues of land.

The said Commissioners entered a decree of
confirming said claim. The District Court of
the United States for the Northern District of
California, having affirmed this decree, on ap -
peal, the United States took an appeal to this
court.

A further statement of the case appears in
the opinion of the court.

Mr. J. 8. Blarck. Attj.Oen., and Mr.
Hull* for the appellants.

Messrs. C. Benham, H. H. Hawes and
A. Feloh, for appellee.

Mr. Justice Campbell delivered the opin-
ion of the court:

The appellee claimed, before the Board of
Commissioners for the settlement of land
claims in California, four leagues of land,
called '* Wylly," situate on the Sacramento
River and the Arroyo de los Venadoe. His evi.
dence consists of a petition addressed to Mlch-
eltorena, Mexican Governor of the Depart-
ment of Califomias, in December, 1848, at
Monterey, representing that he was a native of
the United States; that he had resided in Mexi-
co two years; that he had some horses and
cattle, and desired to possess a suitable place
for them. The Governor referred this petition
to the Secretary, Jimeno, to obtain the proper
information on the subject. The Secretary re-
ferred the petition to Senor Sutter, Comission-
er {eneargado) of the frontier of the Sacramento.
Sutter certifies on this reference, that the land
is now unoccupied. His certificate is dated

1S6

412-414

IdXTPRBMB COUBT OF THB UnTTBD STATBB.

Dec. Tkbm,

29th January, 1844. There is no evidence to
show that these papers were returned to Mich-
eltorena, or that he ever saw the certificate.
They are produced by the claimant.

The remainder of his evidence consist of
what is termed in the opinion of the Board,
*' Butter's general title/* which bears date the
22d December, 1844, and is as follows:

*' Manuel Micheltorena, Bricradier (General
of the Mexican Army, Adjutant General of The
Plana Mayor, Governor, Commandant General,
and Inspector of the Department of the Cali-
forniafi.

The Supreme Departmental (Government be-
ing unable, in consequence of its incessant oc-
cupations, to draw up, one bv one, the respect-
ive title papers {Utuhs) for those citizens who
have solicited lands, with informe in their fav-
or of Mr. Augustus Butter, captain and iud^e
charged with the jurisdiction of New Helvetia
and Sacramento:

In the name of the Mexican nation, I do by
these letters confer upon them and their fami-
lies the property of the lands designated in
their respective applications (inntanciaa) and
maps {duefw$), upon all and each one who
have solicited (thai^ame) and obtained the fav-
orable if^orme of the aforesaid Mr. Butter, up
to the day of this date — so that nobody shall
have power to question their right of property,
a copy hereof, which Mr. Sutter shall here-
after give them, serving them for a formal
title, with which they will present themselves
to this Government, in order to extend the
same title in due form and on stamped paper.

And that it may remain firm and stable in all
time, I give this document, which shall be rec-
ognized and respected by all the authorities,
civil and militaiy, of the Mexican Nation, in
this and the other deimrtments, authenticated
with the military and governmental seals in
Monterey, this twenty-second day of Decem-
ber, one thousand eight hundred and forty-
four. MiCHBLTORENA.

I certify this is a copy.
New Helvetia, June 8th, 1846.

J. A. BUTTEB."

The circumstances under which this order
was executed appear from a deposition of But-
ter to be found in the record. He says : *' That
this document was delivered to him at his re-
quest That the Governor was blockaded at
Monterey, and would not deliver titles to the
American and other immigrants who were de-
sirous of obtaining lands, and he (Sutter) ad-
vised him to give them titles at once: and that
the Governor had not time to do it in any other
way. He never knew that the Gk)vernor was
blockaded until the courier came with the paper
above referred to." He further testifies that
the mode he had adopted in giving titles to in-
dividual settlers was, to deliver certified copies
of this decree of Micheltorena to those who
had rendered meritorious services to the coun-
try, and who applied to him. That Governor
Micheltorena, at his request, made a speech to
the soldiers, and promised lands to all those
whom he (Sutter) should recommend as worthy
to receive them. The general title was issued
before the men marched from New Helvetia.
He testfies that the lands were never measured,
and there was no formal delivery of possession.
There were no surveyors or means of measure-

186

ment. We have examined with particularity
the Mexican laws of colonization in the case of
The United States v. John A. Sutter, at this
term, and it is not necessary to do so in thia
case. It is evident that this " general title "
had no reference to those laws, as none of their
requirements were considered when it was
made. It is questionable whether the previous
application of the claimant was beiore the
governor, or imder the control of his subordi-
nates, at its date. The general title was sent to
Butter, to enable him to raise a military force
to assist the governor, who was confined u>
his capital by the forces of the insurgent cbicfa,
who had determined to expel him from the
country. His ability to comply with the ex-
pectations it encouraged depended upon the
success of his efforts to maintain his authority
in the department, and to secure the sanction
of the Supreme Gfovemment to the extraordi-
nary measures he had adopted for that purpose.
The decree has no signification except as an ap-
peal to Butter, and the persons under his tn-
fiuence, to come to his relief, and as a promise
to them that he would mAke a Uberal distrib-
ution of land among them, in case they
should faithfully and successfully assist him in
his extremity. But the issue of the yfak was
fatal to Micheltorena, who was compelled to
leave the country; and Sutter, his lieutenant
and partisan, was made prisoner, and was re-
quired to abandon his chief, and to promise
fidelity to his enemies. Whatever power was
conferred upon Butter was abrogated then, if
not before. The execution of the power con-
ferred, if any, in favor of this ckumant, did
not take place for more than a year after the
abdication of Micheltorena.

The opinion of the eowrt is, that the daim of
the appMee is invalid, and the decree of the Die-
triet Court is reversed, and ^le cause remanded^
tDith directions to that court to dumiss the petition,

Clted-21 How., 418; 28 How., MS, S64, M6; 24
How., 131 ; 1 Black, 87.

THE UNITED STATES. Appt,

NATHANIEL BAS8ETT.

(See 8. C, 21 How., 412-414.)

Sutter's ** general title," invalid — copy of, con-
ferred no title.

The decision of United States v. Nye, ante, p. ISS^
affirmed.

The decree or promise of Micheltorena to Sutter
and throufirh Sutter to the forelfrn volunteerB, did
not confer a title to any part of the public domain*
nor perfect any incipient pomession into a vested
luterest. A copy of such **flreneral title" Riven by
Sutter nearly fifteen months after the defeat and
abdication of Micheltorena, had no validity and
conferred no title to land.

Argued Jan. IS, 1859. Decided Feb.l4, 1859,

APPEAL from the District Ck>urt of the
United States for the Northern District of
California.

This case arose upon a petition filed before
the Board of Land Commissioners, in Califor-
nia, by the appellee, for the confirmation of a
claim to four square leagues of land.

62 V. S.

1868

PSMBICRTON y. LOCKKTT.

257-260

The Board entered a decree confirming the
claim. The DUlrict Ck>urt of the United IStates
for the Northern District of California having
affirmed this decree, on appeal, the United
States took an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Mr, J. S. Black* Atty. Gen., and Mr.
Hull* for appellants.

Meurs. M. Blair and V. E. Howard, for
appellee.

Mr, t/iMtiVatf Campbell delivered the opinion
of the court:

The appellee submitted to the Board of Com-
missioners appointed under the Act of Congrera
of the 8d of March. 1851 (9 Stat, at L., 632,
eh. 41), to settle private land claims in Califor-
nia, a claim for four squares leagues of land in
the valley of the Sacramento River, called
"Laa Colussas," as the assignee of John Dan-
benbias. His evidence consists of a petition of
Danbenbias to Micheltorena, Gk>vemor of Cali-
fornia, dated in July, 1844, in which he de-
aciibes himself as a native of Germany, but
naturalized in Mexico, where he had resided
tiro years, and that he desired a grant of this
land to devote himself to agriculture. The
Secretary, Jimeno, reported that the consider-
ation of many petitions of the same nature had
been postponed until after the governor had
▼iaited the coimtry of the Sacramento and San
Joaquin; and as he had no general map of the
country to guide him in making grants, he
auj^gested that this petition should be laid over
'With the others. The governor thereupon
made an order that the petitioner might take
possesion, and deferred further action until he
should visit the country; and returned the
papers to the petitioner.

During the fall of 1844, a formidable insur-
rection against Micheltorena was maintained
by some of the leading men in California, and
in the month of December of that vear he was
beleaguered at Monterey. One of the principal
grounds of complaint against him was an an-
IHited disposition to strengthen the settlement
of Sutter on the Sacramento by improvident
grants to foreign emigrants.

While the ^vemor was blockaded at Mon-
terey, a courier was sent to Sutter, conveying
the document known as Sutter's * 'general title,"
which is set out in the opinion of ihe court in
the case of The UniUdSUUes v. Michael C. Nye,
and by which Sutter was enabled to collect a
body of "foreign volunteers," who went to the
aid of the Governor. Danbenbias was one of
those who accompanied Suiter.

The forces of the rival chiefs met at Coahu-
anga the latter part of February, 1845, and,
after a bloodless battle, Micheltorena consented
to abdicate his office in a short time, and to leave
the country. In June, 1846, Sutter gave to the
petitioner (Danbenbiss) a certified copy of the
"general grant," which was product to the
Board of Commissioners as the complement to
the other evidence of title in favor of Danben-
bias. None of these documents are to found in
the public archives. No trace of the evidence
on which these titles depend Is exhibited in any
of the records of that State. The consideration
on which they were made have no reference to
the Colonization Laws of Mexico. The promises

See 91 How.

of Micheltorena to Sutter, and through Sutter
to the foreign volunteers, did not confer a title
to any part of the public domain, nor perfect
any incipient pretension into a vested interest.
The parties looked to the contingency of a Kup-
pression of the revolt and the maintenance of
the power of the governor for the fulfillment of
these promises. In this they were disappointtni.
The paper remained in the possession of Sutter
for nearly fifteen months after the defeat and
abdication of Micheltorena, before he gave a
copv to Danbenbiss.

For these reasons, and others contained in
the opinion of the court in the case of The
UniUd Siatee v. Nye, it ia the judgment of the
court that the claim presented by the appellee
is invalid.

T?te decree of the District Court of the United
States far the Northern DiUrici of Calif orrUa is
reversed, and tJie cause remanded to that court,
with directions to that court to dismiss the peH-
tion.

Cited-» How., 288, 266; 1 Black, 37.

JOHN PBMBBRTON, Liquidator of the
Mbrchants' Inbitraitcb CoMPAirr, Appt,

EDWARD LOCKETT, JAMES G. BERr

RET AND HENRY D. JOHNSON.

(See 8. C, 21 How., 257-266.)

Construction of contract vfiih attorneys to prose-
cute government daim.

An agreement by defendant to pay plaintiffs, his
attorneys' one half of all moneys recovered for the
value of slaves freed at Nassau, for tbeir services
in prosecutiofr such claim ; held, to have reference
to the solfoltatlon of the claims before allowance
by tbe Government at WasblDffton.

And bcld that the transfer of tills claim to the com-
mission appointed between Great Britain and the
United States put an end to the Bgreement.

Argued Feb. 9. 1869. Decided Feb, XI, 1869,

APPEAL from the Circuit Court of the Unit-
ed States for the District of Columbia.

This suit was brought in the court below by
the appellees, to recover as for a specific lien,
certain compensation claimed for prosecuting
an international reclamation.

The court below decreed that Pemberton
should pay $14,280, less 5 per cent, of tlie
money awarded to him, together with interest
thereon from June 20. 1855, and costs, to the
complainant, one third part to each or to their
solicitor, &c.

The facts of the case appear in the opinion
of the court.

Messrs. H. Mayp R* J. Brent and Rev*
erdy Johnson, for the appellant:

The appellant maintains that the decree of
the court below should be reversed for the fol-
lowing reasons:

1. That the said Pemberton had no power
as liquidator to make said agreement to pay
any part of said claim, or the fruits thereof, to
tbe defendants in error.

La. Code, 2966, 2967.

An agent under general power cannot nell.

Steer v. Ward, 10 Mart., 679; Adams v.
Oainard, 7 Mart. N. S., 246; HiU v. Barlow, 6

1S7

2i7-a06

SupRBMS Court or thb Unitbd Statba.

Dbg. Tkrm,

Rob. La., 148; Ouny v. Bobert, 16 La., 175;
amilh V. McMicken, i2 Rob. La.. 658

The decree of the court below binds the fund,
as if a specific lien upon it was created by the
contract. No equitable lien is shown.

2. The agreement was to compensate for
services to be rendered in Washinj^n City,
and limited to that place. All the services
claimed for, are said to have been rendered in
London. The contract may be explained by
*' the circumstances of the transaction, so as to
apply it to its proper subject-matter."

Bradley y. Steamboat Co., 18 Pet., 99.

8. It was a personal contract for the joint
services of the appellees, and was expressly
abandoned by two of them. It was, however,
to be performed by all or none; the obligation
was not several.

Pare. Cont., U, 12; 4 Mart.. 78; 2 Bam. &
Ad., 807; Sample v. Lamb, 2 La.. 275.

4. The agreement is void for maintenance.

4 Kent's Com., 449: Tkureton v. PerHwU, 1
Pick., 415; WaUaee v. Loubat, 2 Den., 607;
Berrien v. MdLean, 1 Hoifm. Ch., 421.

6. It was a contract against public policy.
The Executive Departments of the Govern-
ment or the legislation of Congress ought not
to be exposed to the influences of paid ifriends
or agents. All that could be done at Washing-
ton to advance the appellant's claim, was to be
done by the executive officere of the Govern-
ment.

Ma/rahall v. B. d 0, R. R. Co,, 16 How., 814;
2 Story, Eq., sees. 298, 294; Wildey v. CoUier,
7 Md., 279.

Nor could the services of defendant be per-
formed at London.

10 Stat. atL., p. 99, art. 2.

6. The contract was not performed.

Two of them say they committed the man-
agement of it to the third, Johnson, and there
is an utter failure of evidence to show that any
or all of thetn together rendered any services
whatever at Washington, '' in the prosecution
of said claim."

Story. Cont.. 968.

The counsel further reviewed the evidence
on this point and said: The consideration for
this contract was partly executed and partly
executory, as shown on its face. In such case
the failure to perform the executory part of the
consideration, is a default which prevents any
recovery on the contract, because it is but one
entire consideration.

1 Pare. Cont., 171, noU; 2 Para. Cont., 19,
172, and note.

7. If there was a performance of the contract,
it was done only by said Johnson, and if the
contract be apportioned, he onlv is entitled to
compensation, and therefore the joint bill should

* be dismissed.

b. The decree is erroneous in requiring Pem-
berton to pay interest on the amount decreed,
when he has not enjoyed the use of the money.

Messrs. Jos. H. Bradley and John L.
Hayes, for appellees:

In the instrument in question, there is no
limitation of time during which the services of
complainants wpre to l^ rendered — no limita-
tion of places where the services should be per-
formed— no condition as to the mode in which
the claim should be prosecuted. The sole con-
dition of compensation was, that the complain-

188

ants should *'ufle their best exertions in the
prosecution of said claim."

2. The appellant was authorized to execute
the instrument in question. In his contract
and elsewhere, he styles himself as liquidator,
&c. As such, he has defended and appealed
this suit. If he was not authorized, his arts
have been fraudulent and wrongful, and he
cannot take advantage of his own wrong.

Fletcher v. Peck, 6 Cranch, 88.

8. This contract has not been rescinded, either
by the acts of the parties, the operation of law,
or a change of circumstances rendering it im-
possible to be carried into effect.

1st. It has not been rescinded by the acts of
the parties. The rights of the appellees grow-
ing out of this contract could not be annulled,
except by a mutual contract as final and def-
inite as the one by which they acquired their
rights. The two lettere received from the ap-
pellant, one from Lockett and one from John-
son, have no effect in varying the original con-
tract. They were never repliwi to by the ap-
pellant. There is nothing in Lockett's letter
showin(( a disposition to relinquish his interest
in the claim. There is no intimation from Mr.
Berret of a disposition to decline or assign his
interest. It is evident that Johnson had no
such purpose, from the facts in evidence.

2d. The contract was not rescinded or an-
nulled by any change of circumstances render-
ins it impossible to be carried into effect.

The appellees deny the allegation in the an-
swer, that compensation watf agreed upon ia
the event of a recovery of the claim against the
United States. No such condition is expressed
or implied in the contract. The appellees also
deny the allegations in the answer, that the con-
tract was entered into for services to be per-
formed in Washington City, and that the pro-
vision in the convention allowing each govern-
ment to name one person to attend theCoromis-
sionera as agent on its behalf, ** put an end to
the contract, so that complainants had no long-
er any right to recover thereon. " No such con-
ditions are found in the agreement.

The most important work, the preparation of
evidence, could only be done in the United
States. The appellees were employed several
weeks in obtaining testimony from the depart-
ments in Washington. The Convention pro-
vided that the claim should be heard upon such
evidence or information as shall be furnished
by or on behalf of their respective govern-
ments.

Decisions of Commission of Claims, p. 9.

The appointment of an agent on behalf of the
United States, did not dispense with the neces-
sity for employing ansociate counsel. Such,
counsel were frt*quently associated with the
agent of the United States.

Decisions of the Commission, pp. 16. 18, 29,
41. &c.

There was no necessity for employing En-
glish counsel, as is alleged, as the case was not
before an English court, but a joint commis-
sion.

4. The contract and agreement is not con-
trary to law.

Ist. It is not void for champerty or mainte-
nance.

Bayard y McLean, 8 Del., 189, 217; 8 Cow..
646; 4D. i&E.,841.

62 U.S.

1868.

Pbkbkkton y. Lockbtt.

257-266

Champerty and maintenance exist only in
proceedings in suits at law.

4 Bl. Com.. 185.

Moreover, there were no agreements here on
the pan of the alle^eed champertor, to carry on
th« parties' suit at his own expense.

dd. The agreement is not void as a contract
to do an act iuconsist^'nt with public policy.

In the case of MarshaU ▼. Tits B. A 0. R. R.
Co., 16 How., 314. cited on the other side,
there was an understanding that tlie agent
should use corrupt means and influence. Con-
tracts, precisely analogous to the present one,
have been sanctioned bv this court.

WylU V. Com, 15 How.. 417.

5. The appellees rendered the services implied
in the contract.

Mr, Justice Nelson delivered the opinion of
the court:

This is an appeal from a decree of the Cir-
cuit Court of the United States for the District
of Columbia.

The bill was filed in the court below, by the
reitpondents, against the appellant, Pemberton,
liquidator of the Merchants' Insurance Com-
pany, in the City of New Orleans, representing
the interest of that Company, which was in-
solvent, for the purpose of establishinsr a title
to certain moneys in the possession of the gov-
ernment, which had been received under the
Omvention between the United States and
Great Britain, of the 8th of February, 1^58.
The money had been awarded by the umpire,
under that' Convention, to the Company, which
had been subrogated to the rights of one of the
claimants for compensation against Great Brit-
ain, in the case of The Brig Creole. The um-
pire allowed to the Company $28,460. The
complainants below set up, in their bill, a title
to one half of this fund, as the agents and at-
torneys of Pemberton in the prosecution of the
clainL

The right rests upon the following agree-
ment, entered into l)etween them and the de
fendant (Pemberton) at New Orleans, dated the
23d of December, 1851 :

"For and in consideration of services ren
dered, and to be rendered, by James G. Berret,
Henry D. Johnson and E. Lockelt. of Wash
ingtott City, D. C, in the prosecution of our
claims for the value of slaves freed at Nassau.
N. P., which we had to pay for, we do hereby
agree to allow to said Berret, Johnson and
Lockett, their heirs or assigns, one half of any
or all such sums of money, principal and inter-
est, as may be recovered on account of our said
hisaes. it being understood that the said Berret,
Johnson and Lockett are to u^e their best ex
ertions in the prosecution of said claim, and
that no allowance whatever, as expenses or
compensation for their services, is to be made
by us to the said Berret, Johnson and Lock-
ett, unless our said claim shall be allowed, in
whole or in part. Witness our hand and seal,
at New Orleans, thin 23d day of December, in
th»s year of our Lord 185 ."

The claims referred to in this agreement orig-
inated as far back as the year 1841, in conse
quenceof the unwarran tabic interference of the
nublic authorities at N*issau. in the Island of
Tiew Providence, one of the Bahama Islands,
belonging to Great Britain, and liberating a

Bee 21 Uow.

cargo of slaves, who were on a voyage from
Virginia to New Orleans, and who hful muti-
nied, overcome the officer, and carried the vessel
into that pert.

The persons interested in the slaves, of which
they were deprived by this interference, imme-
atefy appealed to their own Government for re-
dress. A correspondence was opened between
this Government and Great Britain on the sub-
ject, which continued down to the time of the
Convention already mentioned, of the 8th of
Februarv, 1853.

This Convention provided for the appoint-
ment of a Board of Commissioners, one to be
named by each Government, and the two to
appoint an umpire, to decide upon all claims
in which a difference of opinion should occur.

The Board sat in the City of London, and
were bound, according to the terms of the Con-
vention, to receive and peruse all written docu-
ments or statements which might be presented
to them, by or on behalf of their respective
Governments, in support of or in answer to any
claim ; and to hear, if required, one person on
each side, in behalf of each Government, as
counsel or agent for such Government, on each
separate claim. Each Government appointed
an agent to represent it before the Board : and,
as we have said, the umpire allowed to the In-
surance Company $28,460.

It is insisted, on behalf of the defendant
(Pemberton), that this contract, entered into
with complainants in 1851, had reference to the
solicitation of claims before, and allowance by,
the Government at the' City of Washin^on;
that they were employed as gentlemen residing
at that place, engaged in business of this
character; and that the Convention between the
two Governments, the appointment of a Board
of Commissioners, and prosecution of the claims
against Great Britain before it, under the au-
thority of the United States, put an end to the
contract. Although its terms are general, and
open to some difficulty as to the real meaning
and intent of the parties, we are inclined to
concur in this view of it. We think it could
hardly have been within the contemplation of
either of the parties, that the prosecution
spoken of in the argument was a prosecution
or solicitation of claims against the foreign
Government, or in a tribunal sitting there, and
before which this Government had taken upon
itself the duty of the prosecution. We are sat-
isfied these agents were under no obligation,
according to the true intent of the agreement,
to follow these claims to London, and prose-
cute them there; and if not, it is quite clear the
transfer of them to the commission there put
an end to tlie agreement. And this seems to
have been the view taken of it by the parties
themselves, as manifested by their conduct
after the appointment of the commission.

By the jjd article of the Convention, the
claims were to be presented before the Board
within six months from the day of its first sit-
ting, unless a good reason could be given for
the delay. The Board first met in London on
the 15tb of September, 1853; and on the 15th
of October it adopted rules and regulations in
respect to the proceedings before it, and,
among others, required all claims to be pre-
sented within six months from the 15th of Sep-
tember, the day of its first sitting.

189

294r-805

BUFKIMX OOUBT OF THB UmITBD BTATBft.

Dec. Tbxic,

Now. the first step taken by these complain-
ants in behalf of the claims of Pemberton, un-
der the Convention, was a letter written to him
by Locket t, dated Becpmber 15, requesting
that a power of attorney should be given to
Johnson, to act for him before the commission.
This was three months after the commence-
ment of its sittings, aad after half the period
had expired within which the claims were re-
quired to be presented. It does not appear that
this letter was answered by Pemberton.

The next step taken was a letter from John-
son himself, dated at Washington, 22d of
March, 1854, in which he announces that he
had prepared a memorial on behalf of the
cUiims of the Insurance Company, and was
ready to forward it to the Commissioners, in
London. This was seven days after the ex-
piration of the six months.

In the meantime, Pemberton had employed
agents residing in London to attend to hid
claims, and who, it appears, had the charge
and management of the business until the close
of the commission.

What is very material, also, in this letter of
Johnson of the 22d of Mut^h, he there states,
in res^t to the situation of his two associates,
as an inducement to Pemberton to give him,
individually, the power of attorney — thatLock-
ett is absent, and that Berret was unable to at-
tend to the business, having been appointed
postmaster of the city; and then proposes to
conduct the business himself alone, for the com-
pensation of twenty-five per centum of the
money recovered, the half only of what is now
claimed imder the agreement of 1851. It does
not appear that any answer was returned to
this letter, doubtless for the reason that other
agents had already been employed.

It is true that Johnson drew up the me-
morial to the Commissioners, on behalf of Pem-
berton, as above mentioned, but without any
authority from him, and swore to it, at Wash-
ington, on the 17th of April, 1854, in which he
endeavored to explain the delay in presenting
the claim ; and forwarded the same from this
country on the 29th of May following. But the
subject had already been brought to the no-
tice of the government agent, and before the
Board of Commissioners, as early as the 28d
of that month, by the agents of Pemberton in
London. This memorial, therefore, was of no
particular importance.

It appears from the report of the proceedings
under the commission, and of its decisions,
communicated to Congress bv the President,
lllh of August, 1856 (Senate Docs., Vol. XV.,
1855, 1856), that there were six separate claim-
ants, besides Pemberton, for compensation aris-
ing out of the case of The Creole, and all de-
pending, substantially, upon the same facts.
And there were, also, the cases of The Brig Bn-
terprise and Schooner Hermom, involving prin-
ciples similar to those upon which the reclama-
tion depended in the case of The Creole. AH
the parties whose claims arise out of the case of
The Creole were equally interested in furnish-
ing the proofs upon which the general claim
against the British Government rested : and the
three vessels were interested in common, as to
the principles of international law that should
govern the decision of the Board of Commis-
sioners.

The ^vemment agent and Commissioners
took this view of these several claims, and but
one argument was made in all of them, and
that in the case of The Brig ^terprise, and but
one opinion delivered by the Commissioners.
As they disagreed, a second argument was
made before the umpire.

The preparation of the claim of Pemberton,
beyond the proofs of the interest of his com-
pany in the case of The Creole, was a very
triflmg matter: and even these proofs had been
already furnished to this government, at the
time the appeal was made there for redress.
And as it respects the questions of international
law involved in these cases, they had been the
subject of repeated discussion between this gov-
ernment and Great Britain, and also in Con-
gress, by some of the most distinguished states-
men and Jurists of the country; and the prep-
aration for the argument of the claim before
the Board of Commissioners required little else
than the labor of digesting and reproducing^
the principles and reasoning to be found in
these discussions.

For the reasons above given we are satisfied
the agreement and proofs in the case furnish
no legal or just ground for a claim to the sum
of money awarded by the court below, ami
thai the decree should be reversed, and the pro-
eeedings remitted, leilh directions to enter a de-
cree dismissing the bill.

DICKERSON B. MOREHOUSE, Plff. in Br. ,

«.

WILLIAM A. PHELPS.

(See 8. C, Zl How., 29i-«)5.)

Description of grantees in deed, what sufficient
— in ^eetment, plaintiff must show vaUd title,
or defendant's possession toiU prevail— ^u-
signaJbUxty of occupant claims under U. 8.

Where a patent from the United States grants,
" unto the representatives of G. and M., and to
their heirs," the said lot al)oye de^rlbed, to have
and to hold, unto the snid representatives, and
their heirF and aasigna, forever, as tenants in com-
mon, extrinsic proof was admitted showing who
were such representatives.

The patents havinfr been made for the benefit ot
those who obtained the certificate of preemption*
and paid for the land, are ti^ohnicaUy accurate.

A plaintiff in ejectment, where defendant is in pos-
session, must show a valid legal title to authorize a
recovery of the land by him.

Where no such title is shown, defendant's pos-
session Is sufficient for his protection.

tip to the date of the entry and pnrobase, the
title was iti the United States ; behind which date
the courts can uphold no deed of conveyance of
the public lands, unless CongreAS has authorized
assignments of occupant claims to be made.

Argued Feb. 10, 1869. Decided Mar, 7, 1859.

IN ERROR to the Supreme Court of the Sute
of Illinois.

This was an action of ejectment, originally
commenced in the Circuit Court of Jo. Daviess
County, Illinois, hy William A. Phelps against
Bradner Smith, to recover possession of a cer-
tain tract of land. After having been once
remanded by the Supreme Court of the State
of Illinois, judgment was rendered in the Cir-
cuit Court in favor of the plaintiff.

Subsequently this judgment was vacated and

62 U. S.

1858.

MOBSHOUSB V. PkBLPB.

294-80S

A new trial ordered, and Dickenson B. More-
bouse asked to be made defendant in the suit
in the plac« of Smith, upon affidavit that he
claimed the interest in the lot sued for in this
case, as the administrator of one R. P. Ouyard,
and that as Dickenson B. Morehouse, he leased
the name to the said defendant.

This motion was overruled, but Morehouse
was permitted to come in as co-defendant with
the defendant, his tenant.

After various proceedings in the Circuit
Court, judgment was again rendered for the
plainciif.

Morehouse appealed to the Supreme Court of
the State of Illinois, by which court the judg-
ment of the Circuit Court was affirmed.

The case is now brought here by writ of
error.

Among: other evidence, the plaintiff offered
jind read to the jury, patents issued by the
United States (Government to the leeal repre-
sentatives of Robert P. Guyard and Dickenson
B. Morehouse, for lots 8 and 9, being the prem-
iBes in question.

The date of these patents was Jan. 1, 1846.
The basis of the claim of plaintiff below was a
tnmsfer from Guyard to himself, of which the
following is a copy :

MiKSRAL Point, Crawford County.

MlCHIOAN TSKRIIORT.

Nov. 8, 1829.
To Captain J. C. Lsoatb, Supt. U. 8. Lead

Mines.

Sir: I have this day sold, transferred, and
set over, and by these presents do grant, bar-
.gain, sell, transfer and set over unto William
A. Phelps, his heirs and assigns, all my right,
title, interest or claim whatsoever in and to the
three lots of ground I own in the town of Ga-
lena, Jo. Daviess Countv, State of Illinois, sit-
uated on the Wharf Row, the number not
recollected, supposed to be either lots, 4, 6 and
6, or 5, 6 and 7, bounded as follows:

On the east by Fever River; on the west by
Main Street or a triangular square, and on the
south by a lot grant^ to me in the spring of
1828, and sold by me to M. Denarett; and on
the north, by a street, alley, or other lots.

The most southern of these three lots was
granted by permit to mjrself in the spring of
1828; the other two adjoining were granted to
John Ward and Nathaniel Johnson, one lot to
each, and by them transferred to me, all of
which is entered on record in the permit book.

Given under my hand and seal, this 8th of
November, 1829.

R. P. Guyard. [Sbal.]

Approved November 9, 1829.

The defendant, Morehouse, claimed in virtue
of his own right and as administrator of Guy-
ard.

A further statement of the case appears in
the opinion of the court.

hfenen. E. B* Washbiinie and Reverdy

JTohnfloiiy for plaintiff in error:

The Congress of the United States by an Act
approved Feb. 5, 1829, provided for the laying
off of a town at and including Galena, Illinots,
under the direction of the Surveyor- Gk^neral for
the States of Illinois, Missouri, and the Terri-
tory of Arkaasas. The Act further provided
that the lots should be classed, &c., and previ-

8ee 21 How.

ous to their sale, " each and every person or
his, her or their legal representative or repre-
sentatives, who shall heretofore have obtained
from the agent of the United States a permit to
occupy any lot or lots in the said town of Ga-
lena, or who shall have actually occupied and
improved any lot or lots in the said town, or
within the tract of land hereby auihorize<l to
be laid off into lots, shall be permitted to pur-
chase such lot or lots by paying therefor in
cash," &c., being the certain amount<« specified
in the said Acts according to the class in which
the same fell.

It not being practicable to carry this Act into
effect. Congress, on the 2d day of July, 1886.
passed an amendatory Act, by which it was
further provided, &c.

**That all acts and duties required to be
done and performed by the Surveyor of the
States of Illinois and Missouri and the Terri-
tory of Arkansas, under the Act to which this
is an amendment, shall be done and performed
by a board of commissioners, of three in num-
ber, any two of whom shall form a quorum to
do business; said commissioners to be appointed
by the President of the United States, and
shall, previous to their entering upon the dis-
cbarge of their duties, take an oath or affirma-
tion to perform the same faithfully and impar-
tially."

And it was further enacted, " That the said
commissioners shall also have power to hear
evidence and determine all claims to lots of
ground arising under the Act to which this is
an amendment; and for this purpose the said
commissioners are authorized to administer all
oaths that may be necessary, and reduce to
writing all the evidence in support of claims to
preemption presented for consideration; and
when all the testimony shall have been heard
and considered, the said commissioners shall
file with the Register and Receiverof the Land
Office at Galena, the testimony in the case,
together with a certificate in favor of eacli per-
son having the right of preemption; and upon
making payment to the Receiver at Galena for
the lot or lots to which such person is entitled,
the receiver shall grant a receipt therefor, and
issue certificates of purchase to be transmitted
U) the General Land Office, as in other cases of
the sale of public land."

While the Board of Commissioners consti-
tuted by the above Act, were sitting in the dis-
charge of their duties. Dickenson B. More-
house, for himself and as the administrator
and legal representative of one Robert P. Guy-
ard, went before the said Board, and filed a
claim to a preemption to the lots, the title to
which is involved in this suit. He adduced
before the said Commissioners the requisite
proofs to entitle him to an award of the pre-
emption right for himself individually, ana as
the adminbtrator of Guvard's estate. The said
Commissioners granted him the preemption
right as claimed, and issued to him the proper
duplicate certificate, which entitled him, under
the instructions of the General Land Office, to

?;o to the Local Land Office and buy the lots
rom the government; all of which the said
Morehouse did. For himself and as the ad-
ministrator of Guyard, he paid the price fixed
by law for the said lots into the Local Land
Office at Galena, and received the proper du-

141

204r^05

BUFBKMB OOUBT OF TBX USTTBD BtaTBB.

Dec. Term,

plicate Receiver's receipts therefor, and after-
wards upon the surrender of the said receipts
in acconiance with the rule of the General
Land Office he received the patents for the said
lots. For himself and as the administrator as
aforesaid, he has retained the possession of the
said lots since 1838, and paid taxes upon them
up to this time.

The right of preemption to those lots was
never claimed by Phelps or by 9Jiy person for
him, before the said Commissioners, and
neither Phelps nor any person for him, ever
purchased the said lots from the Local Land
Office.

The question arising in this court, upon the
record is, who is the '* legal represent itive " of
Guyard as to the lots in dispute, within the
meaning of the Statutes of the United States.
Phelps claims that he is, by virtue of the letter
or instrument above set out; Morehouse claims
that he is, as administrator of Guvard, he hav-
ing made the claim to the lots before the Board
of Commissioners, which claim was allowed,
and, entered them at the Land Office. The
Supreme Court of Illinois have held, that un-
der these Statutes Phelps is the " legal repre-
sentative" of Guyard. This question is pre-
sented in the instructions asked for by the at-
torneys for Phelps, and f^ven by the court be-
'low, and in the instructions asked for by the
attorney of Morehouse and refused by the
court below.

The construction of the Statutes above re-
ferred to being drawn in question in this case,
the Supreme Court of Illinois made the certifi-
cate as found in the record, page 62.

It is submitted that the term '* legal repre-
sentative," as used in the Act of Feb. 5, 1829,
clearly contemplates only those representatives
who file their claims before the Board of Com-
missioners and have them allowed. If one be
a ** representative," and he does not prefer his
claim as such for confirmation, he is not re-
garded.

In Strother y, Lucas, 12 Pet., 458, the con-
firmation was deemed to be made to the person
who made and proved his '* claim " before the
Board of ComniissionerB. To the same point,
see BisieU v. PtnroM, 8 How., 887. Instruc-
tions and Opinions of AttomevGteneral, part
2. pages, 747, 762, 1048; also, Boone v. Moore,
14 Mo., 424; 6 Pet., 772; 2 How., 284; 4 Gil-
man, 454: 12 111., 817; 15 111., 572; Land
Laws, Vol. III., 816; 2 Bay. 42^-454; 16 How.,
68.

Whatever right Phelps might have had, it
was only an inchoate right, to be perfected by
making his claim before the Board of Com-
missioners and procuring their award upon
satisfactory proofs, and then following it up by
a purchase from the Land Office. He could do
these things or he could abandon his supposed
right. He did so abandon it. On the other
hand, Morehouse, as the administrator of Guy-
ard, made the claim before the Board of Com-
missioners, adduced his proofs, received their
award, and then perfected the title by entering
the lots, the possession of which he retained to
this day. Under these circumstances it is in-
sisted that Morehouse, as the administrator of
Guyard, is the " legal representative " of said
Guyard, within the true intent and meaning of

148

the Act of Feb. 5, 1829. authorizing the laying
off a town on Bear River. &c.

Mr, M. Bktir, for defendant in error.

Mr. Justice Catron delivered the opinion of
the court:

Phelps recovered of Morehouse the undi \ ided
moiety of lots Nos. 8 and 9 in the Town of
Galena, in a State Circuit Court in Illinois,
which judgment was affirmed in the Supreme
Court of that State; and from this decision the
cauRe is brought here on writ of error. We
are now called on to re-examine the contro-
versy to the extent that Acts of Congress, and
the proceedings of officers acting under the aa-
thoritv of the United States, are drawn in
question.

Phelps claims, through a paper addressed to
the agent of the United States superintending
the lead mines at Fever River; and this p*iper
his counsel assumes to be a deed that conveys
lands. It bears date November 8, 1829. and'is
from Guyard to Phelps, for a moiety of the lota
in dispute.

The courts of Illinois held it to be an effective
conveyance of title, and that, by force thereof,
Phelps became " the legal representative " of
Guyard within the intent and true const ructioa
of the patents made to the representatives of
Guyard and Morehouse.

The Act of 1886 required that commissioners
should hear and determine all claims to lots of
which a preference of entry was sought, ac-
cording to the Act of 1829; they had power con-
ferred on them to administer oaths and take
evidence, and were directed to reduce it to
writing, in support of claims to preemptions
presented for consideration; and, when all the
testimony was heard and considered, they were
to file with the Register and Receiver the whole
testimony in the CMse (that is,in all the instances),
together with a certificate in favor of each
person having the right of preemption ; and on
payment being made to the Receiver by the per-
son ascertain^ to be entitled, the Recrister was
ordered to issue a certificate of purchaReto him
to whom the right of preemption had been ad-
judged; and the renuuning lots were to be ex-
posed to public sale.

It was the political power that was dealing
with this property. Congress could award it
either for a consideration, or confer it on any
one that they desired should have it. The
awards were made through a tribunal exercising
the political power, ana whose adjudications
were conclusive of the right to purchase; nor
had the courts of justice any jurisdiction to in-
terfere.

Phelps did not come forward and prefer a
claim to have a preemption allowed, and if
Morehouse had not acquired this right, the land
would have been sold at auction, rhelps would
have then stood In the situation of all others
claimins; preferences of entry throughout the
public oomain, who fail to prove up their claims
before the Register and Recei ver,and permit the
land to be sold at the public sales. He aban-
doned his preference, and allowed it to be for-
feited—even conceding its original validity.

2. If Phelps has a legal title, he took it by the
terms of the patents. The patent for No. 9 re-
cites, that the legal representativsisf Robert P.

62 U. S.

1868.

BaLLANCS v. F0B8TTH.

889,890

Guyard and Dickeraon B. Morehouae had de-
pfjsited in the General Land Office the Register's
certificate at the Land Office at Galena, that full
payment had been made, by said legal repre-
sentatives al)ove named, for lot No. 9 (the
boundary of which is described), and which lot
had been purchased by said representatives of
Guyard and MorehouHe: and. in consideration
of the premises, the United States have given
and granted, and do give and grant, *' unto the
said representatives of Guvard and Morehouse.
and to their heirs, the saicl lot above described ;
to have and to hold, unto the said represent
ativea, and their heirs and aligns, forever, as
teuantJB in common." The patent for lot No. 8
is In the same terms.

For the purpose of explaining who the grant-
ees are, and that they were the purchasers, ex-
trinsic proof was introduced in the state circuit
court, to the end of establisihing the fact that
Morehouse, as administrator of Guyard, and on
his own behalf, proved the joint occupancy of
lots 8 and 9 before the Commissioners appointed
to grant certificates of preemption under the
Act of 1836; that Morehouse obtained certifi-
cates of preemption, filed them with the Register,
paid the purchase money to the lieceiver of the
Land Omce at Galena, took out his patent cer-
tificates, presented them at the General Land
Office, and received the patents. The deed to
Phelps was produced and recorded at Galena,
June 18, 1847. Morehouse obtained his pre-
emption certificates for lots Nos. 8 and 9, paid his
money for them, and got his patent certificates
February 20, 1888, and on the Ist day of Janu-
arv. 1846, the patents issued.

We feel confident, from the face of the pat-
ents, that they were made for the benefit of
those who obtained the certificate of preemp-
tion, and paid for the land. Such, in our
judgment, is the fair construction of the patents,
and of the 3d section of the Act of 1886, on
which they are founded. The patents, through-
out, refer to those who bring the claim before
the board, obtain the right of entry, pay the
purchase monev, and enter the land.

It was the duty of Morehouse, as adminis-
trator of Guyard, to make payment for the
moiety of the lots Nos. 8 and 9, on behalf of the
estate of Guyard, out of the personal property
in the administrator's hands. Revised Statutes
of Illinois, title Wills, sec. 107, adopted in 1836.

And by the 98th and 99th sections of said title,
the administrator was empowered to convert the
lands into personal assets for the payment of
debts; the personal estate having proved insuffi-
cient

The capacity of Morehouse to cause the entry
to be made, depends on state laws, with which
we have no power to deal in the present writ of
error, further than to ascertain from them that
Morehouse was, in his capacity of administra-
tor, '*the legal representative" of Guyard; and
such we think he wias, and that the patents are
technical Iv accurate.

As Phelps was plaintiff in the ejectment suit,
and Morehouse in possession, it was imposed on
Phelps to show a valid legal title to authorise a
recovery of the land by him; and having no
such title, Morehouse's possessions was suffi-
cient for his protection.

The decisions referred to on behalf of the de-
fendant in error, where Spanish claims had been

See 21 How

confirmed, and where the United States gave an
additional sanction to an incipient title existing
when we acquired Louisiana, do not apply. In
those cases, titles which were undoubtedly
private property, that could be alienated, and
which descended, were examined, and their
validity ascertained; and when found meritori-
ous, ordered to be defined by survey, and a
United Spates patent was in most cases ordered
to be issued. But this did not defeat outstand-
ing interests in tiie land for which the patent
issued : as was held in the case of Stoddard v.
Chamberi, 2 How.. 284; Biasell v. Penrtm,
8 How., 837; and Landes v. Brant, 10 How.,
348. The patent covered the whole title; at
least, from the time it was asserted before a
Board of Commissioners appointed by Congress
to investigate the claim; and the patent inured
to the protection of alienees and heirs. The
United States Government was bound to pro-
tect existing interests in the lands acquired by
the United States from France by the Treaty
of 1803.

Here, however, a very different claim to the
lands in the Town of Galena is set iip. The
government was the absolute owner; Congress
might have repealed the Acts of 1829 and 1836,
at any time before actual purchases were made
by those claiming a preference to enter, and the
lands have been sold at auction. Up to the
date of the entry and purchase, the title was in
the United States; behind which date the courts
of Justice can upliold no deed of conveyance of
the public lands, unless Congress has author-
ized assignments of occupant claims to be made ;
and as the Acts of 1829 and 1836 awarded the
preference of entry to the claimant who ap-
plied, and obtainea, the favorable decision of
the Eioardof Commissioners, no inquiry can be
made into the dealings between Fhelps and
Guyard.

It is ordered that the judgment of the Supreme
Court of lUinais be reversed, and that the cause
be remanded, to be proceeded in according to this
opinion.

CHARLES BALLANCE, Appt.,

ROBERT FORSYTH et al.

(See S. C, 21 How., 889. 800.)

Consent cannot confer jurisdiction — no jurisdic-
tion without an appeal — loitlidratocU of tran-
script.

The ooDsent of parties cannot ^ve Jurisdiction to
this court, where the law does not give it.

Wltliout an appeal taken in the District Court,
this court has no Jurisdiction, and the consent of
parties cannot cure the defect.

But If the plaintiff in error desires to supply the
omission, and take an appeal in the District
Court, he has leave to withdraw the transcript now
filed, and to use it upon his new appeal.

Motion filed Feif. 18, 1859. Decided Feb, £1, 1859.

APPEAL from the Circuit Court of the United
States for the Northern District of Illinois.
On motion to reinstate.
The case is stated by the court

Note.— Jurisdiction of federal eourt4i not gitjen by
eonaent. See Note to Gov. of Georsrla v. African
Slaves. 26 U. S. (1 Pet.), 110.

148

872-88«

SupRKMB Court op thb Uiotkd Btatbm.

Dec. Term,

Messrs. Charles Ballanee, in person, and
Reverdy Johnson, for appellant.
Mr, Archibald Williams, for appellee.

Mr. Chief Justice Ta;neyde\iyered the opin-
ion of the court:

This case was dimissed on the 20th of Decem-
ber last, because it did not appear that an ap-
peal had been taken in the District Court. A
motion has now been made to reinstate the
case, and, in support of that motion, a written
agreement, signed by the counsel for the appel-
lant and appellee, has been filed, consenting to
reinstate the case, to waive all irregularities,
anil to try the case on the merits. '

But the consent of parlies cannot give ju-
risdiction to this court, where the law does
not give it. And, without an appeal taken in
the District Court, this court has no jurisdiction,
and the consent of parties cannot cure the de-
fect. I'he motion w. theirfore, overruled.

But if the plaintiff in error desires to supply
the omission, and take an appeal in the District
Court, and bring bis case legally before us, he
has leave, in order to save expense, to withdraw
the transcript now filed, and to use it upon his
appeal, leaving a receipt for it with the Clerk of
this court. t

THE NEW YORK AND LIVERPOOL
UNITED STATES MAIL STEAMSHIP
COMPANY, Claimants of the Steamship
Pacific, her Tackle, etc., Appts.,

OTIS P. RUMBALL, Libt

(See S. C. 21 How., 872-886.)

CoUitfion beticeen steamer and brig^mle, v>h£Ts
steamers meet sailing vessels—ivauHeal rules —
do not apply when coUision is inevitable — where
brig was not in fault, steamer liable.

Where, in a colUston between a steamer and brig,
the brigr kept her course, witboutany change what-
ever, until the collisloa was inevitable, an error
th<n committed by those in charure of her under
such circumstances. If the vesBel was otherwise
without loult, would not impair lier rigrht to re-
cover for the injuries occasioned by the colll«^ion.

As a general rule. Hailing* vessels, when approach-
ing steamers, are required to keep their coarse, and
the steamers are required to keep out of the way.

Those engrtged in navigating vessels upon the
seas are bound to observe the nautical rules, in
the management of their vessels on approaching a
point where there is danger of collision.

Such rules of navigation are obligatory upon ves-
sels approaching each other, so long as the means
and opportunity to avoid the danger remain.

They do not apply to a vessel after the approach
is HO near that the collision Is inevitable.

When a steamer approaches a sailing vessel, the
steamer is required to cxeroisethe necessary pre-
cautions to avoid a collision; and if this be not done,
pi-ima facie the steamer is chargeable with fault.

As the brig was run down and lost, and the evi-
dence fails to satisfy the court that the brig was in
fault, or the disaster inevitable, it necessarily fal-
lows that the collision was the result of fault on
the part of the steamer, and that the steamer is
answerable to the libelant for the d^mage.

NoTS.— CoUMon. Rights of steam and saHing ves-
seJs in reference to each other^ and in passing and
meeting. See note to St. John v. Paine, 61 U. 8. (10
How.), 567.

144

Argu^ Feb. 7. 1S69. Decided Feb. 21, 18S9.

APPEAL from the Circuit Court of the
United States for the "Southern District of
New York.

The libel in this case was filed in the Dis-
trict Court of the United States for the South-
ern District of New York, by the appellee, to
recover damages resultinsf from a collision.

The said court enterea a decree dismissing
the libel. On appeal to the Circuit Court,
this decree was reversed and a decree entered
in favor of the libelant, for $7,107.16, with
$412.82, costs; whereupon the defendant took
an appeal to this court.

A further statement of the case ap[)earB in
the opinion of the court.

Messrs. Clarkson N. Potter and Owen
A Vose» for appellant:

1. No considerable distance could exist be-
tween the vessels, as libelant claimed.

As to estimates of time and distance, see
The EuTopa, 2 Law & £q., 559; Tfie Iron Ihike,
2 W. Rob.. 381; The James Wait, 2 W. Rob.,
274; 1 Blatchf., 871.

2. The libelant has the burden of proof. To
recover, he must make it appear that the
steamer was in fault. When it appears that
the sailing vessel stood her course, and that the
steamer could have avoided her, then the law

S resumes the steamer should have done so.
lut such facts must appear, to raise the pre-
sumption.

On the question of responsibility, see 18 How. ,
109; Barren v. WHUamson, 4 McLean. 589; The
Delaware v. The Osprey. 2 Wall., Jr., 268.

8. In any event, the damages were excessive.
The libelant was only entitled to the actual
damage caused by the collision, viz. : the
cost of bringing the brig to port and repairing
her.

The Catharine v. Dickinson, 17 How., 170.

Messrs. B. D. Stillman and H. O. De-
Forest, for appellees:

Conclusions on the facts and points of law.

The brig discharged her duty ui all re-
spects.

1st. A bright light was displayed when the
steamer was first discovered.

2d. She kept her course close-hauled through-
out.

3d. If her course was changed at all, it was
Just at the moment of collision, when the
steamer had come so near as to discharge the
brig from the consequences.

12 How., 448.

If any change of the brig's took place, it was
in the right direction. It was justifiable to pre-
sume that the steamer would port her helm and
pass to the right.

St. John V. Paine, 10 How., 585; The Boae, 2
W. Rob., 1.

The steamer did not discharge her duty.

The following rules apply to the present
case:

" A vessel that has the wind free, &c. , must
get out of the way." '* When vessels are cross-
ing each other in opposite directions, and there
is the least doubt of their going clear, the ves-
sel on the starboard tack should persevere on
her course, while that on the larboard tack
should bear up or keep away before the wind/'
'* The vessel on the larboard tack must give

62 V. 8.

1868.

U. S. Mail Stbausbip Co. v. Ruhball.

372-386

wa^. and the Teasel on the starboard tack must
hold on." •

10 How., 531.

When a steamer meets a sailiog vessel, the
tetter has the right to keep her course. It is
the duty of the steamer to adopt such precau-
tions as will avoid her.

10 How.. 688.

And a steamer ought not, in wide water, to
approach so near a sailing vessel as to create a
hazard.

12 How., 461.

2. The steamer did not change her course
quick enough. At the time the vessel struck,
she had kept off no more than two points.

13 How., 461.

She had only one man at the wheel, which
was an insufficient force with a ship of this
size, and which may account in part for her
tardy change of direction.

T%s Buropa, 2 Eng. L & Eq., 564.

3. The steamer was also in fault in not hav-
ing sooner stopped her headway.

4. In attempting to cross the bow of the brig
instead of keeping to the right by portine her
helm, the steamer made herself responsible for
all the consequences.

5. The steamer did not take proper precau-
tionary measures to avoid the brig, and the de-
cree of the court below should be affirmed.

8t. John V Paine, 10 How., 657, cases cited
on page 581 : Newton v. StebbtTu, 10 How., 586;
Ths Tratfeier, 3 Wm. Rob., 197; 7%e Geneeee
Chief, 12 How.. 4»i; The James Watt, 8 Jurist,
320; The Bate, 2 W. Rob., p. 1.

Mr JueUce CUflbrd delivered the opinion of
the court:

This is an appeal in admiralty, from a decree
of the Circuit Court of the United States for
the Southern District of New York, in a cause
of collision, civil and maritime. It was com-
menced in the District Court on the 24tfa dav
of September, 1851, by the appellee, in behalf
of himself and the other owi^ers of the brig
Alfaretta. According to the case made in the
libel, The Alfaretta sailed from Millbridge, in
the State of Maine, on the 10th day of August.
1851, fully laden with lumber freight, and
bound on a voyage to the port of Kew York.
She was a tight, stanch, strong vessel of one
hundred and sixty-three tons burden, and in
«Tery respect well manned, tackled, appareled,
and appointed, with a competent master, and
sufficient crew ; and was totally wrecked by the
collision which occurred on the 16th day of
the same month, without any fault of her offi-
cers or crew, and while she was lawfully pur-
suing her voyage from the place of departure
to her place of destination. At the time of the
disaster she was fifteen or twenty miles off the
Bouthem shore of Lon^ Island, sailins close-
hauled on the wind, with her larboard tacks
aboard, and all her sails set, and was heading
about northwest by west. While sailing on
that course, with a light wind from southwest
by west, her master and crew discerned a li^ht
bearing from them about west half south, which
they judged to be the light of a steamer; and
the libelant, who was the master of The Alfar-
etta, immediately caused a light to be hoisted
hi the forerigging of the brig. That vessel
proved to be the steamship Pacific, and it is

See 21 How. U. 8., Book 16.

alleged that she had such a large number of
lights that the libelant was not able to deter-
mine what direction she was steering, and kept
his vessel on her course, without any deviation,
until the collision took place. It occurred be-
tween eight and ten o'clock in the evening, as
alleged in the libel, and about fifteen minutes
after the light, was placed in the forerigging of
the brig, when the steamer, with sreat force
and violence, ran into and struck me brig on
her larboard bow, cutting her down to the
water's edge, and carrving away her foremast,
so that she filled in a few minutes and became
a complete wreck.

On the 14th day of October follow! nfr, the
claimants of the steamer filed their answer to
Che allegations of the libel. Among other
things not necessary to be noticed, they deny
that the steamer had such a large number of
lights at the time referred to, that the libelant
was not able to determine what direction she
was steering ; and they also deny that the brig
kept her course, without any deviation, untu
the collision occurred ; or that the steamer ran
into and struck the brig in the manner above
stated. Their theory is, and they accordingly
allege, that the steamer started from New York
on the day of the collision, on her intended
voyage to Liverpool, well manned and equipped
for the voyage, and in every respect seawortny ;
and that the lookout of the steamer, who was
stationed at the forecastle, while she was pro-
ceeding on the voyage, between seven and eif;hl
o'clock in the evening, the weather being
cloudy and the night dark, the wind southwest
by south, and the steamer steering east half
south, with her usual lights displayed, discov-
ered the light of a vessel about two and a half
points on the starboard bow of the steamer.
Whereupon the helm of the steamer was imme-
diately put to the starboard, and she at once
swung off to east-northeast, and at or about the
same time her engines were stopped. That ves-
sel so discovered was the brie Alfaretta. She
was close hauled on the wind at the time, and
was steering to the westward, as the respond-
ents allege, in a course nearlv parallel to that
of the steamer: but, instead of keeping her
course, as she should have done, she suddenly
and unexpectedly put her helm to port, and
kept off, and came with her bows on to the
steamer, striking her a little forward of her
starboard wheel, which passed over the bows
of the brig, cutting her down and damaging
the steamer to the amount of $2,000. And
they explicitly allege, that if the brig had kept
her course, and had not put her helm to port,
the collision would have been avoided. This
statement, derived from the pleadings, exhibits
very fully the real nature of the controversy
between the parties, and the grounds assumed
on the one side and the other in the prosecu-
tion and defense of the suit. Testimony was
taken on both sides, in the District Court, and.
after hearin^^, a decree was entered that the
libel be dismissed, each party paying their own
costs, and the libelant appealed to the Circuit
Court. Both parties appeared bv counsel in
the Circuit Court, and, after a full hearing, it
was ordered and adjudged that the decree of
the District Court dismissing the libel be in all
things reversed, and that the libelant to recover
the damages sustained by reason of thecoUision,

10 ]45

872^-385

SUPRBMB Ck>UBT OF THX UNITBD StATBS.

Dbc. Tkrm,

together with costs in both courts, and that the
cause be referred to a commissioner to ascertain
and report the damages. Additional testimony
was taken before i be commissioner, who reported
that the sum of $7,107.19 was due to the libel-
ants, to which report the respondents excepted ;
and. after the hearing upon the exceptions, the
report was confirmed by the court, and a de-
cree entered that the libelant recover the sum
reported with costs. Whereupon a final decree
was entered, in pursuance of the report, and
the respondents appealed to this court. Many
of the facts and circumstances attending the
disaster, as well as those which preceded it, are
60 fully proved that they cannot properly be
regarded as the subject of dispute. As alleged
in the libel, the collision took place in the open
sea, on the 16th day of August, lb5l, some fifteen
or twenty miles off the southern shore of Long
Island. It occurred a little past eight o'clock
in the evening, after the officers in charge of
the respective vessels had been fully apprised
of the approaching danger, and under circum-
stances which make it manifest that it ought to
have been prevented. Both vessels had proper
lights at the kime, and competent and sufficient
lookouts; and it is clearly proved that the duties
of the lookouts were vigilantly and promptly
performed. Lights had not been set on the brig
when her lookout first discerned the light of
the steamer from the forward part of the vessel.
One had been prepared, however, and lighted
by the steward, and was in the galley forward
of the house on the deck, ready for that pur-
pose. On seeing the light of the s^^amer, the
lookout of the brig at once reported the fact to
the master, who was then walkinjB^ the deck,
and he immediately caused the li^ht, which
was burning brightly, to be hoisted m the fore
rl^King of the brig, and it was kept there, in
f uir view of the approaching steamer, until the
vessels came together. Coffin, who hoisted the
light, and was the lookout on the brig, testifies
that he tied the light just under the foreyard,
and remained standing in the rigging, watch-
ing the light of the steamer as she approached,
until she was so near that he had just time to
descend to the deck and take a few steps aft
when the vessels struck. He says it was about
fifteen minutes after he reported the light of
the steamer to the master of the brig that the
collision occurred ; and, in this particular, he is
slrongl V confirmed bv the mate of the steamer,
who admits that the brig was about three miles
di'iitant when her light was reported to him, as
the officer of the deck, by the lookout on the
starboard bow of the steamer. At the time the
light of the steamer was first seen by the look-
out, the brig was sailing on a course of north-
west bv west, close-hauled on the wind, with
her larboard tacks aboard, and all her sails set.
She was converging towanls the track of the
steamer, and was going through the water only
three or four miles an hour, the wind being
light, and blowing from the southwest by
west.

Several witnesses describe the character of
the night as overcast, and some speak of it as
cloudy, with intervening stars; but all agree
that it was not unusually dark. They all con-
cur in saying that the surface of the sea was
smooth, and there was no haze or mist on the
water; and the mate of the steamer testifies

146

that objects could be seen without lights at the
distance of three miles.

When the steamer discovered the brig, she
had all her signal lights displayed, and was on
a course of east half south, and was moving
through the water at the rate of twelve or
thirteen miles an hour, using all her sails aa
well as her engines. Her mate and lookout
first saw the light of the brig, and they testify
that the bearing of the light was some two and
a half points off the starboard bow of the
steamer. Their statements, however, do not
entirely agree with the testimony of the master.
He was in his room at the lime, calculating the
position of the steamer, and did not hear the
light of the brig reported. While there, he
heard the mate call out, '*hard a-starboard,"
and instantly went up on to the paddle-box of
the steamer.

His account of the bearing of the brig is
not entirelv clear, as given in the record, or
very satisfactory. At first, he says he saw
the brig two and a half to three points off
the starooard bow of the steamer, but finally
fixes it at two points: and adds, to the effect
that she was not over one third of a mile dis-
tant. He admits, however, that the steamer
was then swingiug off rapidly towards Long
Island shore; and of course, if the bearing was
onlv two points when the master reach^ the
paddle-box. it must have been much less than
two and a half points at the time the light was
first discovered, as the vessels were then three
miles apart, and the order of the mate, to star-
board the helm, had not then been given ; and
of course the steamer did not commence to
swing off to port till after that order was
given and executed.

According to the testimony of the mate, his
first order, after seeing the light of the brig,
was to starboard the helm, and then, he says,
the vessel besan to swing off; and it was not
until after he left the position he then occupied,
and went on to the paddle-box, that he gave
the order, hard a-starboard. After that order
was given, an'fi the usual response received
from the wheelsman, then he savs, the master
came by his side, and repeated the order, add-
ing that ''the vessel will be into us — stop her;"
and the mate says that the steamer had then
swung off about three points; and yet the mas-
ter says that the bearing of the light of the brig
was still two points off the starboard bow of
the steamer.

Statements so confiicting and imcertain do
not furnish any definite elements which can
safely be made the basis of a reliable mathemat-
ical calculation as to the precise bearing of the
bri^ when her light was first seen, ana are not
entitled to much consideration in determining
the question how the collision was produced.

Some uncertainty also exists aa to the precise
bearing of the steamer when her light was first
discovered from the brig. It is stated in the
libel as about west half south, and the testi-
mony of the witnesses is equally indefinite.
One witness estimates it at about three points
off the larboard bow of the brig; another says
it was about two points in the same direction;
and a third witness says it was about west.
Such indefinite statements cannot afford much
aid in determining the principal question in-
volved in this controversy.

»2 U. 8.

186a

U. S. Mail Steamship Co. ▼. Ruhball.

87!^d85

Whatever ma^ have been the precifle posit on
of the vessels with respect to each other at the
time the light of the steamer was first discov-
ered by the lookout of the brig, it Is certain
that the course of the brig was converging to-
wards the track of the steamer, and that they
came together in the course of fifteen minutes
after the light was reported to the master; and
the brig was run down and lost. It was the
starboard bow of the steamer which came in
contact with the larboard bow of the brig, for-
ward of the fore swifter, and slewed her round,
carrying away her bowsprit, foremast, and
main topmast, and cutting her down to the
water's edge; and such was the headway of the
sleamer at the time, that she swept on for a con-
siderable distance, without any apparent abate-
ment of her speed, noth withstanding her en-
gines were stopped and reversed Just before the
collision took place.

AH the circumstances tend to show that the
disaster might have been prevented, and that
tiiere was fault somewhere, for which the of-
fending party ought to be held responsible,
Both parties appears to have so understood the
matter when they made up their pleadings,
as well as in the subsequent conduct of the

It is alleged in the libel that the brig kept her
course after the light of the steamer was seen,
without any deviation, until the collision oc-
curred. On the part of the respondents, that
allegation in the libel is denied ; and they allesre
that the brig, when her light was tirKt seen,
was steering to the westwam, close-hauled on
the wind, and in a course nearly parallel to
the steamer; but instead of keeping her course,
as she should have done, that she suddenly and
unexpectedly put her helm up, kept off, and
came with her bows on to the steamer.

Such is the issue, as made up by the parties
in the pleadings, and it presents the princi
pal question of fact to be determined by the
court.

Our views upon the point cannot be stated
in a manner which would be satisfactory to
thoae interested, without some brief reference
to the evidence on which thev are based.

When the disaster occurred to the brig, her
whole company, consisting of seven men, in-
cluding the master and mate, were on the deck
of the vessel, and witnessed the events. Four
were examined as witnesses; and the mate tes-
tifies that it was the watch of the master, who,
being the libelant and one of the owners of the
▼essel, was not examined. His watch com-
menced at eight o'clock in the evening, when
the preceding watch closed. From six to eight
o'clock the mate had charae of the deck, and
he says that the course of the brig at sunset
was northwest by west: that she was sailing
clofle-haulcd on the wind, and continued on the
same course until eight o'clock, when he went
below. He remainra below until he heard a
light reported, when he immediately went on
deciL, and at first saw only one light, but, as
the vessel approached nearer, he saw more, and
supposed it was ^ steamer; and he testifies posi-
tively that the brig did not change her course,
after he went on deck, until the steamer struck
her. On his return to the deck, he did not
look at the compass, but savs the brig was on
the wind, with her larboard tacks aboard, and.

«)ee SI How.

in his judgment, was going the same course as
when he went below.

Three of the seamen were also examined, and
their testimony is equally full and explicit, and
to the same effect. One of them was the look-
out, who first discovered the light of the
steamer, and reported it to the master; and
the other two. on hearing his report, imme-
diately went on deck, and rentfained throughout,
watching the light as it approached, and with
every opportunity to see and observe whatever
transpired on the deck of the vessel. Some one
or more of them testifies that the master twice
gave the order **to keep her full and by," as
the steamer advanced, and they all concur
that the brig did not change her course, and
that no danger was apprehended until just be-
fore the collision took place. All must admit
that they had ample means of knowledge upon
the subject of their testimony; and if their
statements are incorrect, thev must have will-
fully perverted the truth, which is not to be pre-
sumed. Several witnesses, however, examined
on the part of the respondents, testify that the
brig did change her course before the vessels
came together; and among the number is the
mate of the steamer, who beyond doubt de-
scribes the events truly, as they appeared to
him at the time of the occurrence.

His testimonv, as it is exhibited in the record,
furnishes conclusive evidence that the two ves-
sels were very close together, if not in actual
contact, when the supposed change of course
was made, and presents some ground of infer-
ence that the jib-boom of the steamer, or the
rigging connected with the bowsprit, as they
swept over the stem of the brig, or pressed
against her fore rigging, may have produced
the state of things which induced him to think
that the brig had ported her helm. At first he
said the change was made just before the col-
lision, then immediately before it; but, upon
further interro;^ation, he said it was before the
jib-boom of the brig had touched the steamer,
and finallv added that the brig might have been
twice the length of the ship off. All of his state-
ments, however, are based upon the theory that
the brig ran into the steamer, when it is satisfac-
torily shown that the real state of the case was
the reverse. It was the bow of the steamer,
near the catheads, which struck the jib-boom
of the brig, and carried it away; and the evi-
dence furnishes strong reasons to conclude that
the brig had been partly slewed round lust
before that occurred. Be that as it may, it is
certain from the evidence that the brig kept
her course until just before the collision took
place. When the mate of the steamer first saw
her light, he says it was about three miles dis-
tant, and he admits that her direction then was
north of west, and that he did not notice any
change of her course, except the one already
mentioned, when the vessels were close to-
gether. When the master went up on to the
paddle-box of the steamer, and repeated the
order previously given by the mate to put the
helm hard a-starboard, he says the brig was
then sailing close-hauled on the wind, arid
and that the two vessels were not more tha
a third of a mile apart. His account of the
change of course is, that it was made after
that order was given, and he says the brig in-
stantly turned directly across the bows of the

B72-986

SUFBKMB Ck>T7BT OF THB UkITBD BTATBS.

Dbc. Tskm,

Bteamer, and came right into her, thus show-
ing conclusively that the alleged change, how-
ever prociuced, was made at the moment of
collision. These references to the testimony
of the witnesses must suffice, and they are be-
lieved to be amply sufficient to show what the
state of the evidence is, as it is exhibited in the
record. One remark is applicable to all of the
witnesses introduced by the respondents; and
that is, they had not the same means of knowl-
edg respecting the matter in dispute as the
witnesses for the libelant possessed, who had
charge of the brie, and governed her course;
and in weighing the evidence, and determining
its force and effect, that important consider-
ation cannot be overlooked. It. must be ad-
mitted that the witnesses on the part of the li-
belant speak from actual knowledge, and un-
less they have willfully stated what they know
to be false, their statements must be correct.
They were on the deck of the vessel, interested,
so far as their personal safety was concerned,
to observe everything that transpired as the
steamer approached, and they cannot well be
mistaken in respect to the matter under con-
sideration.

Those on board the steamer appear in the
record under very different circumstances.
They only infer what they have affirmed as to
what transpired on the deck of the brig, and at
best their statements respecting the matters in
question are of the nature of opinions, and it
is not difficult to see that they mav be in error.
In the excitement and confusion of the moment,
they may have mistaken what was occasioned
by the momentum of the steamer or the press-
ure of her bowsprit or jib-boom upon the stem
or fore rigelng of the brig, for a change of
course pn^ic^ by an alteration of her helm.
All the testimony tends to show that the two
vessels came together at an obtuse angle, and
there is much reason to think that the brig had
been pressed out of her course before the bows
of Uie vessels came together. At all events,
«uch an inference from the evidence is far
more reasonable than would be the conclusion
that all the witnesses for the libelants have
willfully perverted the truth. Other grounds
of reconciling the testimony consistent with the
integrity of all the witnesses might be suggest-
ed, but we think it unnecessary, as the evi-
dence clearly shows that the brig kept her
course, witnout any change whatever, until
the peril was impending and the collision in-
evitable.

An error committed by those in charge of a
vessel under such circumstances, if the vessel
was otherwise without fault, would not impair
her right to recover for the injuries occasioned
by the collision, for the plain reason that those
who produced the peril and put the vessel in
that situation would be chargeable with the
error, and must answer for the consequences.

Our conclusion, however, on this branch of
the case, is, that the respondents have failed to
support the allegation of the answer, that the
brig changed her course after the light of the
steamer was discovered, and that the evidence
satisfactorily shows that she did not change
her course in any sense which can be regard^
as a fault. Sailing vessels, when approaching
a steamer, are reouired to keep their coarse;
and steamers, under such circumstances, as a

148

general rule, are required to keep out of the
way. Many considerations concur to show
that all those engaged in navigating vessels
upon the seas are bound to observe the nau-
tical rules recognized and approved by the
courts, in the management of their vessel**, on
approaching a point where there is danger of
collision. Those rules were framed and are
administered to prevent such disasters and to
afford security to life and property exposed to
such dangers; and public policy, as well as the
best interest of all concerned, requires that
they should be constantly and rigidly enforced
in all cases to which they apply. Few cases
can be imagined where it is more needful that
they should be observed than when a steamer
ana a sailing vessel are approaching each other
from opposite directions, or on Intersecting
lines, for the obvious reason that the negligence
of the one is liable to baffle the vigilance of
the other; and if one of the vessels under such
circumstances follows the rule, and the other
omits to do so, or violates it, a collision is al-
most certain to follow.

Rules of navigation, such as have been men-
tioned, are obligatory upon vessels approach-
ing each other, from the time the necessity for
precaution begins, and continue to be appli-
cable as the vessels advance, so long as the
means and opportunity to avoid the danger re-
main. They do not apply to a vessel required
to keep her course after the approach is so near
that the collision is inevitable, and are equally
inapplicable to vessels of every description,
while they are yet so distant from each other
that measures of precaution have not become
necessary to avoid a collision. Sailing vessels
approaching a steamer are required to keep
their course on account of the correlative duty
which is devolved upon the steamer to keep
out of the way, in order that the steamer may
know the position of the object to be avoidea,
and may not be led into error in her endeavor
to comply with the requirement.

Under the rule that a steamer must keep out
of the way, she must of necessity determine
for herself and upon her own responsibility,
independently of the sailing vessel, whether it
is safer to go to the right or left, or to stop;
and in order that she may not be deprived of
the means of determining the matter wisely,
and that she may not be defeated or baffled in
the attempt to perform her duty in the emer-
gency, it is required in the admiralty juris-
prudence of the United States that the sailing
vessel shall keep her course, and allow the
steamer to pass either on the right or left, or to
adopt such measures of precaution as she may
deem best suited to enable her to perform her
duty and fulfill the requirement of the law to
keep out of the way.

Repeated decisions of this court have affirmed
the doctrine here laid down, and carried it out
to its logical conclusion, and in so many in-
stances that the question cannot any longer be
regarded as open to dispute. Accordingly, it
was held in the case of Tits Steamer Ortgon v.
Bocea et al., 18 How., 670, that when a steamer
approaches a sailing vessel, the steamer ia re-
quired to exercise me necessary precautions to
avoid a collision; and if this be not done.
prima fade the steamer is chargeable wiih
fault. That decision was found^ upon the

•8 U. S

1858.

People v. Dibblb.

866-871

role previously established in 8t, John v. Faine
€tal., 10 How., A8B, where the whole subject
is elaborately considered, and the reasons of
the rule fully explained. Similar views are
also maintained in the case of The Oeneaee Chirf,
12 How., 461, and in various other cases to the
present time. Exceptional cases may be imag-
ined in a crowded thoroughfare, where the
rule would not be applicable, but those will be
considered when they arise. Such precautions
as are inculcated in the rule referred to are en-
joined, as before remarked, to prevent collision
and afford security to life and property; and in
a case where the rule could not be followed
without defeating the end for which it was es-
tablished, or wiUiout producing the mischief
which it was the design of the rule to avert, of
course it would not m applicable, and in such
a case a departure from it would be both justi-
Hable and commendable. Extreme cases, such
as are supposed, will rarely if ever occur, and
in referring to them it must not be understood
that the nue will be relaxed to any extent what-
ever in other cases to which it properly applies.

Applying these principles to the case under
consiaeration, it is obvious what the result
must be. It is not denied that the collision
took place, and that the bri&[ was run down
and lost; and such being the fact, and the evi-
dence exlubited failing to satisfy the court
that the brig was in fault, or the disaster in-
evitable, it necessarily follows that the collision
was the result of fault on the part of the
steamer, and that the steamer is answerable to
the libelant for the damage.

Our attention was also drawn, at the argu-
ment, to the amount of the damages as reported
by the Conunissioner, and it was insisted that
it is excessive. On that point it will be suffi-
cient to say, that after a careful examination of
the testimony before him, we see no ground to
doubt that-Ms duty was rightly performed.

Ths decree of t?ie Circuit Court, therefore, is
qfirmed, with caste.

Cited— 2S How., 472 ; 4 Wall., 512 : 7 Wall., 201, 668 ;
8 WaU., 306, fiflDi ; 9 Wall., 158, 422 ; 14 Wall., 276 ; 19
WalL. 52 : 28 Wall., 181 ; 91 CJ. S., 218 : 94 U. S., 603.

THE PEOPLE OP THE STATE OF NEW
YORK, ex rel. ASA CUTLER; JOHN UN-
DERHILL, Jk., asd ARZA UNDERHILL,
Plffs. in Er., ^

EDGAR C. DIBBLE. County Judge, &c.

(See 8. C, 21 Mow., 366<871.)

N. Y. Act, for summary removal or persons

from Indian lands, is not in conflict with Act

of Congress or treaty of Constitution of U. 8.

Tbe New York Statute respecting IntruciioDS on
Indian lands, which authorizes the summary re-
moval of persons, other than Indians, who settle or
reside upon lands belongrlng to or occupied by any
nation or tribe of Indians, is not contrary to the
Constitution of the United States, nor any Act of
Cooffress.

Unieia ^uch persons have, by the Treaty of May

Non.— JuriM2i<^ion of U. S. Supreme Court where
federal question arijies, or whereis drawn in question
Statute^ Treaty, ttr Constitution of U. S, See note to
Matthews v. Zane, 8 U. S. (4 Cranch), 382; note to
Martin v. Hunter, 14 U. S. (1 Wheat.), 304 ; and note
to WllUams V. Norrls, 25 U. S. (12 Wheat.). 117.

6ee 21 How.

20, 1842, between the United States and the Seneoa
Indians, a right of entry into these lands, they can
not allege that such summary removal by authority
of the Statutes of New York is in conflict with the
Treaty, or any rights secured to the purchasers
under it.

This Statute and the proceedings under It are
not in conflict with the Treaty in question, nor
with any Act of Congress, nor with the Constitu-
tion of the United States.

Afffued Feb. 4, 1859. Decided Feb. 21, 1869.

IN ERROR to the Supreme Court of the
State of New York.

The proceedings in this case were instituted
before Edgar C. Dibble, County Judge of
Oenesee County, by the District Attorney,
against the relators, under a Statute of New
York, passed March 81, 1821. The court de-
cided against the relators, who thereupon re-
moved the proceeding, by certiorari, to the Su-
preme Court, where said decision was affirmed.
They then removed the cause to the court of
Appeals, where it was again affirmed, and the
record remitted to the Supreme Court for exe-
cution of the judgment; whereupon the relat-
ors removed the cause, by writ of error, to this
court, under the 25th section of the Judiciary
Act.

A further statement of the case appears in
the opinion of the court.

Messrs. R. H* CUUett and Joshua L.

Brown* for the plaintiffs in error.

The Law of New York of the Slst March.
1821, under which these proceeding were in-
stituted, is repugnant to the Constitution and
laws of the United States, and therefore null
and void.

Act of March 80, 1802, 2 U.*S. L., 189;
Treaty of 1794. 7 U. S. L., 45, art 2.

The scope and object of the Act of New
York in question, and the two above Acts, are
preciselv the same. Congress had made pro-
vision for the exact case, and while that law
remained in force, New York legislated upon
the same identical subject. Both laws cannot
stand. Two separate governments cannot have
jurisdiction and control of the same subject at
the same time. One law must yield to the
other, and the Constitution of the United
States, art. 6, determines which. The New
York Act of 1821, however, may be fairly pre-
sumed to have been intended to apply exclu-
sively to certain other reservations, over which
it was right and proper for the State to legis-
late. The reservations held hy the Senecas,
however, were within the Indian Intercourse
Law of 1802, and the Treaty of 1794. The
question, whether a law like the one under con-
sideration is valid, is well settled.

Golden v. Prince, 8 Wash. C. C. 814;
Sturges v. Crowninshield, 4 Wheat., 122; City
of New York v. MUn, 11 Pet.. 102; Fox v.
Ohio, 5 How., 410; Qibboru Y.Ogden, 9 Wheat.,
1. 210; Holmes v. Jennison, 14 Pet., 540. 574;
North Biver Steamboat Company v. Living-
ston, 8 Cow., 714; The Passenger Cases, 7 How.,
288: Worcester v. Georgia, 6 Pet., 515.

The decision in this case rests mainlv upon
the Indian Intercourse Act of 1802, and it de
Clares that a state law which interferes there-
with is null and void.

2. If the Act of 1821 was not invalid at the
time of its enactment, it was superseded and
annulled by the Treaties of 1888 and 1842, so

366-371

SOPBEMB COUBT OF THE UNITED BtaTEB.

Dec. Term.

far as it interferes with the right of Ogdeo and
FeUows to enjoy the advantages secured to
them under those Treaties.

IM&r V. Hamden, 1 Paine's C.C., 55; U. S.
V. The Peggy, 1 Cranch, 103; Ware v. HyUtm,
Z Dall., 199; Jackaon v. Munem, 8 Cai., 187;
The Mlo Carrunee, 6Wheat.. 152; Oardon v.
K&rr, 1 Wash. C. C, 822; F<nter v. NetUan, 2
Pet.. 258; Martin v. Hunter, 1 Wheat., 804;
Carf>er v. Jackson, 4 Pet., 1, 100; Otoings v.
Norwood, 6 Cranch, 844.

These cases fully settle the principle assumed
on this point, that the subsequent Treaty by
the Federal Gk>yemment supersedes all repug-
nant State legislation upon the same subject.
Under the Tr^ty, these reservations ceased to
be Indian lands, and those acquiring title to
them under the Treaty acquired the right of
possession, which could not be controlled by
any enactment of the State Legislature. Con-
sequently, when Dibble decided to expel the
purchasers, or those holding under them, he
acted without legal authority, and Ills decision
must be reverseo.

8. Under the Treaties of 1888 and 1842, the
legal title to the premises occupied by Cutler
and the Underbills became vested in Ogden and
Fellows, under whom thev held, and they
were authorized to continue in possession until
ousted by a claimant showing a better title.

Messrs. J. H. Martlndale and WaJce-
maA A BryaAt for the defendant in error:

The Statute in question (Session Laws of
New York, 21, p. 188) is in the nature of a po-
lice regulation, to preserve the public peace
and property. Clearly it is for the Legislature
of New York, when it does not exceed the pre-
scribed limits of the Constitution of that State,
or of the United States, to determine for itself
the mode of entering upon and asserting title
however derived, to the lands within the juris-
diction and sovereignty of the State. It is not
denied that the Treaties in question are as au-
thoritative as a law of Congress; but it is in-
sisted that the rights of property vested in the
Tonawandas by the laws of New York and the
jmcient Treaties between them and the United
States can no mbre be taken away from them
by a law of Congress or a public treaty, with-
out their consent, than the rights of property
of any citizen whomsoeve? ; that is, neither
they nor any citizen can be deprived of rights
«f property vested in them, without due proc-
ess of law.

Art. 5, Amendment to Constitution ; Murray
v. Wooden, 17 Wend., 581 ; 2 Pet., 657; 4 HiU,
140; 19 Wend., 676, 677.

Counsel then examined the title of the Tona-
wandas and of the Seneca Indians to their
lands, and said: And now the question arises,
will not the law take notice of these facts, this
altered condition of the Indian tribes.

Having produced this separation of Senecas
into distinct bands occup]ring widely separated
reservations; having encouraged the adoption
by them of the ioeas of individual personal
rights in their improvements, and thus secured
their civilization ; having invited their submis-
sion to our laws by deliberate treaty ; having
guaranteed to them their lands until they
should choose to sell them, and surrendered
them to the care and protection of New York;
can the (General Government enter that State

160

and apply to them and their property the max-
ims which regulate the conduct of civilized
conquerors towards savages? Do these New
York Indians hold their separate reservations
and property by the sufferance and mercy of
their conquerors, or are they under the protec-
tion of the Constitution and laws of the country?

The deed and Treaty of May 20, 1842. are
without effect, because they were procured
without the consent and authority of the Legis-
lature of the State of New York.

OoodeU V. Jackson, 20 Johns., 725.

The Treaty of 1794 between the United States
and the Six Nations conferred unlimited author-
ity on the Senecas to sell their lands when they
should choose to, the people of the United
States having the right to purchase them. But
what construction mav be given to the Treaty,
or howsoever conclusive it may be deemed to
be on the Tonawandas, the conditions preoed -
ent contained in it have not been complied
with.

Blacksmith v. FeUows, 7 N. Y., 401.

Mr. Justice Grier delivered the opinion of
the court:

This case is brought before us by a writ of
error to the Supreme Court of New York, un -
der the 25th section of the Judiciary Act. It
had its origin in a proceeding before the County
Judge of Gtonesee County, instituted by the
District Attomev against Asa Cutler. John
Underbill, and Arza Underbill, the relatorti,
pursuant to the provisions of an Act of Assem-
bly entitled * 'An Act respecting intrusion on In-
*dian lands," passed March 81, 1821.

This Act made it unlawful for any persons
other than Indians to settle and reside upon
lands belonging to or ocxsupied by any tribe of
Indians, ana declared voia all contracts made
bv any Indians, whereby any other than In-
dians should be permitted to reside on such
lands ; and if any persons should settle or reside
on any such lands contrary to the Act, it was
made the duty of any judge of any county
court where such lands were situated, on
complaint made to him, and due proof of such
residence or settlement, to issue his warrant .
directed to the sheriff, commanding him to re
move such persons.

On notice to the relators of the institution of
this proceeding, they appeared before the Judge
and pleaded to his Jurisdiction, on the ground
that they had entered and occupied the lands,
claiming title under a written mstrument ad-
verselv to the Seneca Nation of Indians, and
therefore, by the Constitution and laws of the
State, they were entitled to a trial by lury, ac-
cording to the course of the common law. and
could not thus be removed by summary pro-
ceeding under this Act.

This plea was overruled by the Judge. The
relators then pleaded that this tract of 12,800
acres called the Tonawanda reservation, was
not owned by the Seneca Indians; that by a
Treaty made with the United States on the 20th
of Mav, 1842, the Seneca Nation of Indians had,
by indenture set forth in the Treaty, conveyed
to Thomas Ludlow Ogden and Joseph FeUows
this tract of land, with others; that this grant
was duly confirmed by the btate of Massachu-
setts, pursuant to the provisions of the Act of
cession made between that State and the State

62 U. 8.

I8r»8.

POORMAN T. WOODWAKD.

2ae-275

of New York, on the 16th of December, 1786;
that the whole amount of the consideration
stipulated by the Treaty and deed had been
paid by said Ogden and Fellows; and that re-
lators were in possession under said Ogden and
Fellows, and adversely to the Indians. They
therefore denied the power and authority of
the Judge to determine their right to the lands
in their possession, or to remove them, under
the powers conferred by the Act of Assembly
of New York.

After hearing the parties, the Judge decided
against the relators, who removed the proceed-
ingn by certiorari to the Supreme Court.

The record contains the testimony on both
sides, and numerous documents concerning the
Treaty with the Seneca Indians, and also the
subsequent proceedings by the officers of the
goyemment. It will not be necessary to a
clear apprehension of our decision in this case
to state them particularly, nor is it material to
our inquiry whether the Judge may have erred
in his decision, that *' the Seneca nation had
not duly granted and conveyed the reserve in
question to Ogden and Fellows."

The Supreme Court and the Court of Ap-
peals of iHew York have decided, *' that the
F provisions of this Act respecting intrusions on
Ddian lands, whidf authorize the summary re
moval of persons, other than Indians, who set-
tle or reside upon lands belonging to or occu-
pied by any nation or tribe 'of Indians, are
coQstitulional, and that a citizen who enters
upon their land before their title has been ex-
tinguished, and they have removed, or have
been removed by the Act of the gevemment,
can acquire no such right of property or pos^
session as is within the protection of the pro-
▼isions of the Constitution which secure a trial
by Jury." They, therefore, affirmed the judg*
ment of the County Judge.

The only Question which this court can be
called on to decide is, whether this law is in
conflict with the Constitution of the United
States, or any treaty or Act of Congress, and
whether this proceeding under it has deprived
the relators of property or rights secured to
tbem by any treaty or Act of Congress.

The Statute In question is a police regulation
for the protection of the Indians from intrusion
of the white people, and to preserve the p^ace.
It Is the dictate of a prudent and just policy.
Notwithstanding the peculiar relation which
these Indian Nations hold to the Government
of the United States, the State of New York
had the power of a sovereign over their persons
and property, so far as it was necessary to pre-
serve the peace of the Commonwealth, and pro-
tect these feeble and helpless bands from im-
position and intrusion. The power of a State
to make such regulations to preserve the peace
of the community is absolute, and has never
been surrendered. The Act is, therefore, not
contrary to the Constitution of the United
States.

Nor is this Statute in conflict with any Act
of Congre:fe. as no law of Congress can be
found which authorizes white men to intrude
on the possemions of Indians.

Is it in conflict with rights acquired by Ogden
and Fellows, under the Treaty, and contract
making a part of it? If the Treaty of 1842
had twen executed; if the United States, in their

See 21 How.

character of sovereign guardian of this nation,
had delivered up the possession to these pur-
chasers, then this Statute of New York, when
applied to them, would clearly be in conflict
with their rights acquired under the Treaty.
But, by the case, it is admitted that the Indians
have not been removed by the United States.
The Tonawanda band is in peaceable possession
of its reserve, and has hitherto refused to sur-
render it. Unless, therefore, these persons
claiming under Ogden and Fellows have, by
the Treaty, a right of entry into these lands,
and, as a consequence, to forcibly oust the
possessors or turn them out by action of eject-
ment, they cannot allege that this summary
removal by authority of the Statute of New
York is in conflict with the Treaty, or anv
rights secured to the purchasers under it. This
proceedine does not affect their title. The
question of the validitv of this Treaty to bind
the Tonawanda band is one to be decided, not
by the courts, but by the political power which
acted for and with the Indians. So far as the
Statute of New York is concerned, it only re-
quires that the Indians be in possession; they
are not bound to show that thev are owners.
They may invoke the aid of the Statute against
all white intruders, so long as they remain in
the peaceable possession of their lands.

The relators cannot claim the protection of
the Treaty, unless they have a right of entry
given them by it, before the Indians are re-
moved bv the government. This court have
decided, in the case of FMnoi v. Eiackamith,
19 How., 866, that this Treaty has made no
provision as to the mode or manner in which
the removal of the Indians or the surrender of
their reservations was to take place; that it can
be carried into execution only by the authority
or power of the government which was a partv
to it. The Indians are to be removed to their
new homes by their guardians, the United
States, and cannot be expelled by irregular
force or violence of the inaividuals who claim
to have purchased their lands, nor even bv the
intervention of the courts of justice. Umil
such removal and surrender of possession by
the intervention of the Government of the
United States, the Indians and their possessions
are protected, by the laws of New York, from
the intrusion of their white neighbors.

We are of opinion, therefore, that this Statute
and the proceeding in this case are not in con-
flict with the Treaty in question, or with any
Act of Congress, or with the Constitution of
the United States.

The judgment of the Court of AppeaU of NetD
York M, therefore, afflrmed toUh costs.

DANIEL POORMAN RT ai.., Plffs. in Er„

f).

WM. A. WOODWARD and WM. C. DUSEN
BERRY, late Partners under the Firm of
Woodward & Dtjsbnberrt.

(See 8. C 21 How.. 986-275.)
Check, when money.

A check on a bank, payable at sight, to ordor,
and indorsed in blank, and which anagrent, to raise
money on ncgrotiable paper, took as money, and

151

266-275

SuFRBBCB Court of Tide UmTBD States.

Dec. Tbbm,

which was preM»ntIy paid to a bona )Ule holder by
the caflbler of thp bank, I« money.

Tlie note or bill purchased by «uch check was
sold for money : title pa.«8Pd to the purchaser, and
the principal was bound by the contract of the
a^rent.

Argued Feb, 7, 1859, Decided Feb. 21, 1869.

IN ERROR to the Circuit Court of the Unit
ed States for the Southern District of Ohio.

This was an action of a»9umfmt brought in
the court below, by the defendants in error, on
a certain promissory note.

The trial below resulted in a verdict and
judgment in favor of the plaintiffs for $4,473.-
76. with co^ts; whereupon the defendant sued
out this writ of error.

A further statement of the case appeai;8 in
the opinion of the court.

Mr. Henry Stanbery, for plaintiffs in er-
ror:

We claim that the court erred. A certificate
of deposit is in no sense cash or money ; it is
simply an acknowledgment of a debt, with a

Sromise of payment . The transact ion between
lood and Woodward & Dusen berry was sim-
ply the exchange of one form of negotiable se-
curity for another.

This was clearly a breach of trust, and a
perversion of the authority to use the note for
the loan of money.

We refer to the following cases:
. Thorotd V. Smith, 11 Mod.. 71, 87; BartleUv.
Pentland, 10 B. & C. 758; Atkins v. Owen, 4
Ad. & E., 819; NighUngai v. Demems, 5 Burr..
2589.

Meurs. N, H* Swa^e and F. F. Mar-
bary» for defendants m error:

It will not do to narrow the Question to the
simple proposition stated in Mr. Stanbery's
brief, viz. : whether the certificate is money.
It is not necessary to affirm this, to show the
transaction binding on all the parties, and the
remedy within the count for money had and
received. Hood, having authority to borrow
money on this note, haa authority to receive
anything which, in the usual course of business,
is treated as such, and will command it. If he
got the money or its equivalent, the object of
biniself and his principals was attained, and it
does not lie in their mouths, after having ac-
quiesced in what was done, and realized the
money on the certificate, to dispute their liabil-
ity, because the money, in form, was not given
to Hood at the precise time that he parted
with the note.

The transaction was Just the same, in legal
contemplation and in sul)stance, as if he had
rtK^ived the $6,000 in specie, or bank bills, or
the check of VVoodward & Du^enberry, and
then deposited the amount with them, and
taken their certificate of such desposit.

The certificate was of the deposit of so much
money, and in fact it yielded in money, onpres
enlation, the full sum of $6,000 expreased on
its face.

Tne makers of the note lived in Ohio, where
they wanted to use their funds, and for their
convenience and accommodation, this negoti-
able certificate of deposit of cash, answering
their purpose as cash, was granted.

The class of cases relied on by the plaintiff
in error, such as BarUett v. Pentland, 10 B. <&
C, 7d8; Atkim v. Otom, 4 Ad. & £., 819,

158

merely hold that a naked aisent authorized to
receive payment, cannot do so by discharging
a debt due from himself to the party to
whom the payment should be made. See ob-
servations upon those cases, Dunlap's Paley,
Agency, 284.

As to the first case cited by the learned coun-
sel, can there be a doubt that, even in that age,
if the servHnt or the master had in fad, re-
ceived the money on the go1di:mith's note, the
plaintiff in that case would have been estop-
ped? So in the last case cited, if the defend-
ant had converted the stock into money, is
there any question that the action for money
had and'received would He? The other two
cases do nor seem to be at all analogous.

The court had held in a more analogous case
{Tayloev, Merehfinfs Ffre Ins. Co., 9 How.,
402), that where the mode of payment is not
prescribed, the agent may exercise a discretion.

The judgment should be afl9rmed,with costs.

In England, especially in the earlier cases,
there was a strong disposition to limit the evi-
dence under the money counts, to strict money
transactions. Lord Holt strenuously inslsled
the then growing practice in trade, of treating^
banker's cash notes and promissory notes as
negotiable, until they were made so by the
btaiute of Anne. But the American authorities
have liberalized the doctrine in thi^ respect, to
meet the expanded customs of commercial tran-
sactions, and have held those money securities
which in the common coui se of business are
treated as money, and even bills of exchange
and promissory notes, proper evidence under
the money counts. They have even gone far-
ther, and sustained this action in cases where
there was no negotiable money security re-
ceived by the defendant, but where, in the nat-
ure of the transaction, he ought, in equity to
respond for money received.

State Bank v. Hurd, 12 Mass.. 172: EffUM-
deU y. tioule, 12 Pick., 126; CoUv.Cush-
ing, 12 Pick., 48; Grant v. Vavghan, 3
Burr.. 1616; Pierce v. Oafls, 12 Johns.. 90;
OleoU V. Hathbme, 5 Wend.. 490; Wet4on v.
Penniman, 1 Mas., 806; Tattle v. JUayo, 7
Johns., 182: FTayd v. Dttp, 8 Mass.. 40.M: Clark
V. Pinney, 6 Cow., 297; Bank of Kentucky v.
Wuter, 2 Pet., 825; Randall v. Rielt, 11 Mass.,
494; Emerson v. Cutis, 12 Mass., 78.

If two be jointly concerned in merchandise
to be sold for profit, and one takes and appro-
priates it to his own use, he is liable to the other
for his proportion of the net profits in this form
of action.

StUes V. Campbell, 11 Mass., 821.

Where an attorney, on a judgment in favor
of his client, purchased lands under the execu-
tion and paia by discharging the judgment,,
this action will lie.

Bearddey v. Boot, 11 Johns., 464.

Property paid or used as money, will support
the action for money had and received the
same as if money itself had been paid and re-
ceived

AinsUe v. Wilson, 7 Cow.. 662.

In Pickard v. Bankes, 18 East, 20, a stake-
holder who had received Bankers' cash notes»
and had wrongfully paid them over to the losing
party, was held liable to the winner in an action
for money had and received: and this upon iho
ground,that though the notes were not money»

H2 U. S.

1858.

PooRMAM V. Woodward.

26^-275

yet being received as such, and so treated, he
should not say they were not on]y paper and
not money.

See, also, Owensony. Morse, 7 T. R,, 64.

A certificate of deposit is like a check on a
banker, of which it is said (Chit. Bills, »28).
'* in practice they are taken as cash, and it has
been decided that a banker in London receiv-
ing bills from his corrrspondent in the country,
to whom they had been indorsed to present for
payment, is not guilty of negligence in giving
up such bills to the acceptor, lipon receiving a
check on a banker for the amount, although it
turn out that such check is dishonored."

RusteU V. Hankey, « T. R,' 12.

If the agency of a stran^r, for receiving
payment for his principal wili thus authorize
the receipt of such securities, as monej, why
may not an a^nt, having a common mterest
with his principals, do the same thing T

In construing the authority conferred on
Hood by the plaintiffs in error, we must look to
the circumstances of the parties, their place of
residence, their relations to the subject of the
agency and to each other, their common interest
in the transaction; and if Hood did what it
nuiy reasonablv be supposed the others would
have done, had they been present, it cannot be
said that he exceeded his authority. And es
peciall^ if, after it was done, they acquiesced
by their silence and availed themselves of the
benefits of the transaction, thev must be pre-
sumed to have authorized it. If Hood treated
the certificate as money, so did they; and shall
they now be permitted to say that they will not
be bound by their agreement lo receive it as
money?

In passing upon the transactions of men, the
law treats the subject-matter, according to the
usual understanding and usages prevailing
where the transaction took place. In this
view the certificate of deposit is money. It is
so treated and dealt with in the common busi-
ness of life.

Mr. Justice Catron delivered the opinion of
the court:

Hood and nine others, including the defend-
ants, made a note of hand in Ohio, dated October
IMth, 184l», for $15 000. payable to Woodward
& Dusenberry, thirty days after date, at their
office in New York.

For himself, and as the agent of the other
makers. Hood applied to the payees. Wood-
ward & Dusenberry, for an advance of money
on the note, for the benefit of all the makf^rs
iotntly. Wood ward & Dusenberry agreed with
Hood to advance, on a pledge of the note,
as security, $6 000; and Hood requested them
to give him their certificate of deposit for that
sum, to the credit of John Ritchey. cashier;
which was done; and Ritcliey, as payee, in-
dorsed the paper to Hood. It was subsequent-
ly presented for payment by bona fide holders.
and Woodward & Dusenberry paid the full
amount thereof in ca«h.

At the time the certificate of deposit was
given, and indorsed bv Ritchey. and the fifteen
thousand dollar note delivered to Woodward «&
Dusent)erry, they agreed with Hood that if he
should return to them the certificate of deposit,
they would then surrender to him the note.
The money advanced not having been re-
Bee 21 How.

funded, except in part, this suit was brought in
assumpiiit to recover the balance.

In their answer to a bill of discovery, Wood-
ward & Dusenberry admit they were advised
by Hood that the' $15,000 note *'had been
executed by himself and his friends, the other
signers thereof, for the purpbse of borrowing
money thereon for the Joint benefit of all
of tbem;" also, *'that at the time Bald note
was delivered to the said Woodward & Dusen-
berry, they issued and delivered to said Hood,
for the joint use and benefit of all the parlies
signing said note, as the respondent under-
stood It, the certificate of deposit of said Wood-
ward & Dusenberry for the sum of $6,000, by
request of said Hood, made payable to the or-
der of John Ritchey. Esq., cashier, at the ofiice
of said Woodward & Dusenberry in New York
city, on the return of said certificate, and which
said certificate was received by said Hood on
behalf of himself and his associates as so much
cash."

Upon this and other evidence in the case, the
counsel for the defendants (the now plaintiffs
in error) asked the court to instruct the jury,
that if they should find, from the evidence, that
Hood was only authorized to use the note to
borrow money thereon for the joint benefit of
himself and the other makers thereof .and that at
the time the plaintiffs. Woodward & Dusen-
berry, received the same from Hood, and de-
livered to him the certificate of deposit, they
had notice that Hood so held the note for the
said purpose, then the plaintiffs were not en-
titled to recover of the defendants; which in-
struction the court refused to give, but did in-
struct the jury that the certificate of deposit so
delivered to Hood was, in effect, money and
came within the authority to borrow money.
Exceptions were taken to the refusal to give the
charge asked for, and to the charge as given.

They claimed that the court erred, insisting
that a certificate of deposit is, in no sense, cash
or money; it is simply an acknowledgment of
a debt, with a promise of payment; that the
transaction between Hood and Woodward &
Dusenberry was simply the exchange of one
form of negotiable security for another; and
that this was clearly a breach of trust, and a
perversion of the authority to use the note for
the loan of money. And they refer to the fol-
lowing authorities in support of ttiis position:
ThorM V. Smith, 11 Mod., 71, 87; BuriUtt
V. Penliand, 10 Bam. & C, 760; Atkins v.
Owen, 4 Ad. & Ellis. 819; NighHngale v. Devi-
sons, 5 Burr. , 2589. Here Woodward & Dusen-
berry had $6,000 in bank, or a broker's otBcc,
and the cashier gave a certificate to that effect,
and promised to pay the money to the holder
of the certificate who should present it. Hood
could have taken out the money the next hour.

A certificate of this kind was a means of ad-
vance, that in all probability suited these bor-
rowers, who resided in Ohio, quite as well as the
gold or silver would have done. It was to the
same effect as if Hood had received the money,
and deposited the specie, subject to his own
check on the cashier of the bsnk. This certifi-
cate was actually paid in cash to the agent of
the parties to the note, for such the bona fide
holder was.

To maintain, as we are asked in effect to do,
that a check on a bank, payable at sight, to

15»

893, 894, 414-426

tiupi&BMS Court op ths Unitkd 8tatsb.

Dbc. Term,

order, aDd iDdorsed in blauk. and which an
agent, to raise money on negotiable paper, took
as money, and which check was presently paid
to a bona fids holder by the cashier of the bank,
was not money; that the note or bill purchased
was not sold for money ; that no title passed to
the purchaser; and that the principal was not
bound by the contract of the agent, would be a
startling' doctrine in the marts of commerce
of this country, where money is usually trans-
ferred by bank checks, and may be fairly pre-
sumed to change hands on the check being
given.

We order that the judgment be affirmed.

JAMES D. PORTER et al.. Plffs, in Er„

BUSHROD W. FOLEY.

(See 8. C, 21 How.. 893, AM.)

Writ of error returnable 3d Monday of January,
iewid — eannol be amended — traneeript wtUi-
drawn,

A writ of error returnable on the third Monday
in January cannot be supported, and does not
brinff the case before the court.

In such case as the court cannot exercise a power
of amendment, they can do nothing more than
dismiss for want of Jurisdiction.

But the plaintiff may withdraw the transcript,
and use it In connection with the proper process
to bring the case here.

Motion filed Feb. 18, 1869. Decided Fsb. SI, 1869.

IN ERROR to the Court of Appeals of the
State of Kentucky.

On motion, by the plaintiff in error, to re-
mand, with leave to amend the writ of error.
The case is stated by the court.

Mr. T« Ewingf, for plaintiff in error.

No counsel appeared for defendant in error.

Mr. Ohief Justice TaAey delivered the
opinion of the court:

The writ of error in this case was issued on
the 27th, day of December last, and made re-
turnable on the third Monday inj January, and
the defendant in error cited to appear on that
day.

It has already been decided at the present
term, in the case of Inmtranee Co. of the Valley
of Virginia v. Mordeeai, that such writ of error
cannot be supported, and does not bring the
case before the court.

A motion has been made, on behalf of the
plaintiff in error, to remand the case to the court
below, with leave to amend the writ of error
and citation. But, as the transcript stands,
there is no case before us in which we can exer-
cise a power of amendment. We can do noth-
ing more than dismiss it for want of jurisdic-
tion.

But if the plaintiff desires it, he may. in
order to save expense, withdraw the transcript,
and use it in connection with the proper and
le^l process to bring the case here; and if
withdrawn, a receipt for it must be left with
the clerk, but aa it now stands, it must be dis-
missed for want of jurisdiction.

8. C— 24 How., 415.

Cited-6 WaU., 246 ; 10 Wall., 510 : 11 Wall., 86.

154

THE WHITE WATER VALLEY CANAL
CO., Plffs. in Er.,

HENRY VALLETTE ET AL.
(See S. C, 21 How., 414-426.)

Usury, when bonds not void for— fraud as to —
agreement for mortgage or pledge, binding —
where no loan, no usury — eoriUngtnt prt/fii,
not power of corporation to make lwnds-—Leff'
islature may legalize.

Where appellee agrrord to complete the canal of
appellants for a certain amount of intereet-beariog'
bonds of the Company ; held, that the bonds were
not void for usury, although the amount of bonda
was double the amount of money estimated aa
necessary to expend to complete the work, and al-
though the bonds ex pressed that the principal sum.
thereby payable was a loan, the appellee bavins'
taken the riak of the contract on his own hands.

Where the appellee's proposal iiad been examlniHi
and adopted by appellant's board,and its oonditiona
performed in good faith by the appellee, and the
final settlement between the contraetingr parties
was amicable; held, that there was no fraud or cir-
cumvention.

These facts arc a bar to any relief from the con-
tract on the flrround of oppression.

A court of equity treats an airreement for a
mortgra^e or pledge of bonds, or other property, as
bindincTt and will trive it cffeot aooordinflr to the in-
tention of the parties.

It is essential to usury in Tndlana, that a certain
ffain, ezoeedlnir the leiral rate of interest, should
accrue to the lender as a consideration for the
loan. Where there is no loan there can be no
usury.

And where there is a loan, althouflrh the profit de-
rived to the lender exceeds the letral rate, yet It
that profit is contiuRent or uncertain, the contract.
If hona>lde and without any desiirn to evade the
statute, is not usurious.

A corporation, without special authority,may dis-
pose of land, goods and chattels, or of any interest
in the rame, tw it deems expedient; and In the course
of their lefrKimate buftineas may make a bond,
mortiraffe, note, or draft ; and also may make onm-

Kositlons with creditors, or an asslg-nment for their
eneflt, except when restrained by law.
But., in Januarv, 1845, the Legislature of Indiana

Eassed an Act, that all the bonds which miyht be
isued in accordance with the contract exi^tino'
between the Company and Vallette were leHraHzecU
When the LegrislMture relieven a contract fmnn
the imputation of illegality, neither of the parties
to the contract are in a condition to insist on this
objection.

(Mr. Chief Justice Tanst, Mr. Justice McLbabt
and Mr. Justice Clifford, did notsit in this cause.)

Argued Feb. 1, 1859. Decided Feb. 21, 1869.

IN ERROR to the Circuit Court of the United
8tate<» for the District of Indiana.

The bill in this case was tiled in the court
below, by the defendant in error, to recover on
certain bonds.

The court below bavins^ entered a decree in
favor of the complainant, the defendant sued
out this writ of error.

A further statement of the case appears in
the opinion of the court.

Messrs. N. C. McLean and H. Stanbery*

for plaintiff in error:

We now proceed to cite some authorities in
support of the principles involved, and which,
may be stated broadly as follows:

1. Corporations are strict! v limited to the
exercise of those powers which are expreasly
granted to them, or are necessarily incident,
either to the purposes of their existence, or to

6« U. »•

1858

Whitic Water Valley Canal Co. v. Vallettb.

414-426

Khe proper enjoyment of their express powers.

2. An express grant of a specific power in
one section of a cliarter, is a prohibition
affainst the exercise of ^the same power by im-
pUcation from the provisions of another sec-
tion.

8. The express grant of a specific power is
Testrictive in its operation, and not only must
the occasion for its exercise arise, but the
method and manner of its execution must be
strictly adhered to. according to the terms of
the grant, or its exercise \b a nullity.

4. A corporation may deny the validity of
any contract which it may have entered into,
without authority for so doing under its char-
ter.

Beatjf V. Knotoler, 4 Pet., 164; Head v. Pr&v-
iienee Iru. Co., 2 Cranch. 127; Perrinev. Ches,
4tnd Del. Can. Co., 9 How., 172; Bank of
Augusta v. Earle^ 13 Pet., 519; Cjmtnisnoneri,
4Sbc. V. Hokomb. 7 Ohio, part 1, 282; Bank of
CkOUeuthe v. Saayne. 8 Ohio. 252; People v.
UUca Ins. Co., 15 Johns.. 358; N. T. Fire
jnen'$ Ins. Co. v. Ely, 2 Cow., 678; Idem^ 5
• k>nn., 560; L.&F. Ins. Co.v. Mechanics* F.Ins.
Co., 7 Wend., 81; The P. D. A M. Steam Nae.
€o. V. Dandridge, 8 G. & J., 248; Farmers'
Loan and Trust Co. v. Carrda, 5 Barb., 618.

These bonds are peculiar in their character.
The 18th section provides for the issue of bonds
identical in form and security with these, but
•onl^ for the payment of a loan previously ne-
gotiated. We may search in vain through
•every other portion of this charter, for any
4)ther authority for this issue; and the cases
which I have cited, support most conclusively
the principle, that the express grant of the
power here excludes the idea of its existence
under any other section by implication. If,
however, the other view of the case is taken,
that these bonds were issued to Vallette, in con-
formity with the provisions of the 18th section,
for a loan of money, and the contract was used
merely as a device to cover up the terms of the
loan, usury is clear.

(Counsel here reviewed the evidence and pro-
ceeded:)

Will a court of equity lend its power to give
priority to one creditor over all others, at least
4;qually meritonous, simply because that cred-
itor has, by falsehood, apparently obtained the
recoroition of his priority as set forth in these
bonds?

If the bonds were given in payment of a debt
for work and labor in completing the canal,
they are void for want of power to issue them
for such purpose under the charter. If, on the
other hand, the bonds were issued for a loan,
as thev purport upon their face, the usury is
provea beyond the shadow of doubt, and the
relief which they pray for, must be given to
the company.
1 Rev. Stat, of Ind., p. 844.
We will not discuss the question whether
this is or is not a loan of money. It is a matter
of no importance.

I. Whatever be its name, the transaction is
•one which does not brhig the case within the
usury laws.

It is a contract to construct the canal at speci-
fied prices, and receive therefor payment in the
bonds of the Company.
The work, at the contract prices, amounted

See 21 How.

to $112,000. It was paid for in the bonds of
the Company, according to the contract.

Much better terms could have been ^t, if
the Company had had cash to pay. But m the
exchange of work for bonds, it was the best
that could be done.

There was no money passed between the par-
ties in the transaction. Vallette did the work
under a contract, and took a lien on the work,
to secure the payment of his bonds.

It is in equity Just what the contract of a
builder would be, who should contract for a
lien on the rents of the house which he should
build, until paid.

And it would not interfere at all with the
builder's equity, if he demanded a higher price,
payable in bonds at a distant day, than if he
were to be paid in cash. If we did but know
how much it would have cost him to insure the
claim, we might determine whether the con
tract was reasonable.

Until this matter is settled, as the agreement
was made between parties entirely competent
to contract, we must presume it to be so.

II. It is no matter whether this be a loan or
not.

The Corporation had a right, by its general
powers, independently of the 18th section, to
make this contract. It creates a lien that equity
will enforce. The contract comes within the
reason and spirit of the 18th section. If the
Company is thereby authorized to pledge the
tolls, &c., of the canal, for the repayment of
money borrowed to construct, it is also au
thorized to make the pledge for construction
directly.

III. But the Act of 'Jan. 4, 184), removes all
possible difficulty, if there were any. After the
contract was made and executed by Vallette, it
sanctions the contract and makes valid all bonds
which shall be issu^ in pursuance of it.

If the Company had not the power already
to issue these bonds, their issue after the Act
is an acceptance of it.

The following authorities were cited and
quoted by the counsel :

Thompson y. N. T. dt K R. R. Co. , 8 Sand.
Ch., 626; James v. C. <fc H. R. R. Co., 6 Am.
Law Reg., 718; Palmer v. Lawrence, 8 Sandf..
162; Steam Nav. Co. v. Weed, 17 Barb,. 878;
see, also, Sedgwick on Const., p. 90; Moss v.
Rossie Lead M. Co., 5 Hill, 187.

The case last cited will be found to contain
a very full collection and able analysis of all
the leading authorities upoo this subject.

The bond gives to Vallette an equitable lien
on all the real and personal property of the
Company, and it so declares in express terms.

4 McL., 192; WilUams v. Price, 5 Munf.,
528; 1 Preem., Mass. Ch., 574; Dow r. Ker,
Speers. Ch.. 418; Read v. Simons, 2 Desaus.,
552; Malcolm v. SeoU, 25 Eng. Ch., 89; 5 Paige,
641: 3 Paige, 77; 21 Eng. Law & Eq., 58.

The Company had power to make this con-
tract, not only by express language and author-
ity of the charter, but also by bemg authorized
to build the canal. The Corporation has all
the implied necessary and proper power to
make such contracts as shall enable them to
accomplish the great end of building the canal.

Sees. 1. 4, 17. of Charter: Planters* Bankr.
Sharp, 6 How., 822; U. S. v. Robertson, 5 Pet.,
650; Sturievants v. The City of AUan, 8 Mc-

155

414-426

SuPHBME Court op thb Ukitbd States.

Dec. Tbrm.

Lean, 894; Bankcf ChUUeothey, Town of ChU-
Ueothe, 7 Ohio. 2d part, 81; 1 B. Mon., 14; 8
Dana, 61; 6 Humph., 615; MeCuUoehv, Mary
land, 4 Wheat., 418: 10 Wend., 848; 4 Hill, 445:
16 Johns.. 52; 1 Cow., 518; 9 Paige, Ch..476;
21 Pick.. 270; 14 Pa. Btate, 88; Barrif y. Ex-
change Co., 1 Sand. Ch., 289; Mm v. OalUey,
2 Hill, 265.

It is not oomp>etent for a corporation to deny
its power to make a contract, and particularly
where its power is not limit«l by its charter,
and no prohibition clause is contained in the
charter, and no general prohibitory law exists.

Mnk of ChUtteothe v. Toum of ChUUeothe, 7
Ohio. 2d part. 81, iupra.

On the question of usury, the counsel cited
cases of Andrettt ▼. Pond, 18 Pet.. 78: 4 Pet.,
128: ^ndr0tMv./2iMMU,7B1ackf.,475; 8Ind.,27.

The Act of Jan. 4, 1845. was valid and ef-
fectual to confirm the contracts and bonds,
even had there been any previous doubt on the
question.

Johnwn V. Bentky, 16 Ohio, 100; LewU v.
MeBltain, 16 Ohio, 856.

Moreover, it is folly to talk about the trans-
action being a loan of money or of goods. All
the evidence in the case contradicts such a sup-
poQition. If the real transaction is a contract
and not an agreement of borrowing and lend-
ing, it cannot be usurious.

2 Cowp., 771; Com. Us., 56; Hardin, 178; 9
Pet.. 899, 401.

Counsel further cited, on the question of
usury:

Beete v. Bidgood, 7 B. & C, 458; 4 Hill, 228;
2 Sandf. Ch., 160; Simpson v. Wiggin, 8 Wood.
& M., 419; Flojftr v. Edwards, 1 Cowp., 112;
4 Hill. 285; 8 Conn., 518: JUoydv, SeoU, 4Fei.y
225; Bank of U. 8. v. Waggoner, 9 Pet., 401;
DeWolfy. Johnson, 10 Wheat., 867; 4 Comsl.,
374; 4McL.,862.

Mr Justice Campbell delivered the opinion
of the court :

This controversy orisinated in a contract be-
tween the appellants and the appellee (Yallette),
in which the latter agreed to complete that por-
tion of the canal through the valley of White
Water River that lies between the cities of
Laurel and Cambridge, in Indiana.

In the year 1886, the State of Indiana pro-
jected the improvement of which this is a part,
and prosecuted the work until 1842, at an ex-
penditure of more than one million of dollars.
In that year the appellants were incorporated,
and the State surrendered the unfinished work
to them, investing them with powers to con-
tinue it till its completion. In 1844 this Cor-
poration became embarrassed in their afiiairs,
and were unable to negotiate loans upon the
pledge of their property. Their resources were
madequate to the demands of their enterprise,
and there was fear that it would be abandoned,
or at least inconveniently postponed. In July,
1844, the president of the Company applied to
the appellee (Yallette) for assistance, and the
reeult of their negotiation was, that the latter
submitted a proposal to the Company to sup-
ply materials and to complete at his expense the
canal, according to the plan of the chief en-
gineer, by the 1st of September, 1845, for one
hundred and twentv-five bonds of the Com-
pany, of $1,000 eacii, upon ten years' time,

156

drawing interest at seven per cent, per annum,,
payable semi annually, he (Yallette) to pay ia
thepaper of the Compiany $500 as a bonus.

This proposal was accepted, and a detailed
contract was drawn out and executed, embrac
ing some modifications not material to this dis-
pute. The appellee agreed to construct in
a substantia] and workmanlike manner the sec-
tions of the canal, under the directions of the
chief en^neer, and according to particulmr
spedflcations. The engineer was to decide
whether the work had b^n performed agreea-
bly to contract and the instructions of the en-
gineer; and payment was to be made upon his-
certificate of the work done at the end of every
sixty days. The contract was punctuallv per-
formed by the appellee to the satisfaction of
the Ck}mpany, and up<Ni a final settlement one
hundred and sixteen bonds of $1,000 each were
issued to him, one hundred and twelve bear-
ing date the 1st of Februaiy, 1845, with inter-
est at the rate of seven per cent, per annum,
payable semi-annually at New York, the prin-
cipal to be paid at ten years from date. These
bonds contain recitals and stipulations as fol-
lows: that the principal sum is the first and
only loan created by the Company imder their
charter for the completion of the canal ; that
the faith of the Company and their effects,
real and personal, are pledged for the pay-
ment of the debt and interest; that these
bonds shall liave a preference over all debts u>
be thereafter contracted ; that in default of the
payment of interest, the holder of the bond»
might enter into possession of the tolls, water
rents, and other incomes of the Company; and
might apply to any court of the State (federal
or state) for the appointment of a receiver, and
that the Company would not appeal to any
other court; that they would pay ten per oenu
as liquidated damages on the amount of the
interest thus collected. The Interest on these
bonds was paid until August, 1854, since when,
the Corporation has been in default.

The appellees hold the one hundred and
twelve bonds above described, and have filed
this bill to enforce the covenants they contain
by the appointment of a receiver. They allege
that the Company is insolvent; that its stock
has no value, and that the canal is exposed to-
dilapidation and ruin, and they have no ability
to remedy such disasters.

The defendants resist the demand of the ap-
pellees. They aver that the president of the
Company applied to Yallette for a loan of
money; that Yallette was willing to advance
the sum required, if he could make a profit of
one hundred per cent., and the president and
directors were ready to concede this profit.
That the contract was made between them as
a device and contrivance to evade the laws of
Indiana upon the subject of interest and usuiy,
and that the contract between the parties in its
essence and spirit was a loan of money at that
exhorbitant and usurious rate of interest. Thai
the work was done by the Company through
the superintendence of their engineer, and that
Yallette paid out the money to contractots
merely to secure its appropriation to the im-
provement of the canal to strengthen his
securitv. That the amount expend^ was but
$56,000, and the estimates of the engineer
prior to the making of the contract did not

62 U. S.

1858.

Whitk Watkr Valley Oakal Co. v. Vallbti'b.

414-426

exceed $65,000; and that the coatract was
arranged 80 that the profit of one hundred per
cent, might be realized.

They complain that the exactions of the ap-
pellee'were exorbitant and oppressive. That
the canal has l)een exposed to disasters from
heavy floods, and a debt has been created for
reparations and improvements that is superior
in dignity and merit to that of the appellee,
and that he had waived his preference to in-
duce them to make the advance.

In the absence of objections to the validity
of these bonds, there can be no question con-
ceminj; their legal operation and effect, or of
the jurisdiction of a court of equity to enforce
them. That court treats an agreement for a
mortgage or pledge of bonds or other property,
as binding, and will give it e£Fect according to
the intention of the contracting parties.

Duncan v. The O/mpany of Proprietors of
ihs Manehaier Waterworks, 8 Price, 697;
Fector v. PhUpott, 12 Price, 197; Seymour v.
GanandaigvM and N. F, R. R. Co,, 25 Barb.,
284.

In Fripp ▼. Chnrd Railway Company, 21
Eng. L. & £q., 5d. the Vice-Chan<yUlor decided
that the Court of Chancery might appoint a
receiver of the property of a corporation
created by Act of Parliament in favor of a
mortgagee, although by the Act a committee
was constituted to whom all the powers of
management were referred. And at the pres-
ent term of this court a receiver for the tolls of
a bridge erected by a Corporation in Indiana
was allowed by this court in favor of a judg-
ment creditor, whose legal remedy had been
exhausted. Cotington Drawbridge Co. v. Shep-
herd, 21 How.. liatV>*«-

The question then arises, whether the con-
tract between these parties, as disclosed by the
pleadings and proofs, is valid. It is essential
to the nature of usury in Indiana, that a certain
gain, exceeding the legal rate of interest, should
accrue to the lender as a consideration for the
loan. Where there is no loan there can be no
uaury. StaU Bank v. CoquHlard, 6 Ind., 232.

And where there is a loan, although the
profit derived to the lender exceeds the legal
rate, yet if that profit is crmtingent or uncer-
tain, the contract, if bona fide and without any
design to evade the statute, is not usurious.,
Croes V. Hepner, 7 Ind., 8i7.

The testimony does not support the aver-
ment of the answer, that this contract involved
a device or contrivance to elude the prohibition
of the statute. The president of the Corpora-
tion (Mr. Helm) testifies: " I know nothing of
any" such device or arrangement; I thought it
was all right; and there was none, so far as I
know or believe, to evade the Usury Laws of
Indiana; nor was there any device or arrange-
ment to cover up a loan of money from Vallette
to said Company, as I know of no such loan."
The testimony of the solicitor of the Corpora-
tion (Mr. Parker), who superintended all the
negotiations, and drew the papers, is equally
explicit. He says: '* I am satisfied there was
DO device or management had or intended be-
tween sidd Valletle and the Canal Company,
in the matter of this contract or otherwise,
whatever, in this connection, to avoid any
Usury Laws of the State of Indiana, or any
other State. I never thought of such a thing

See 21 How.

myself, and never had an intimation of it from
any other source; and had there been anything
of the kind, I would certainly have known it,
as I have said the whole matter in every shape
it assumed was presented to me for my consid-
eration. Vallette had all the risk of his con-
tract on his own hands, until completed and
taken off his hands by the Company. And I
have a strong impression in my own mind, that
in one if not more instances he suffered by that
risk in consec^ence of damage done his work,
while in progress, by high waters." In the
absence of simulation in the contract, the
reason assigned in the last sentences, quoted
from the testimony of this witness, is couclusive
on the question uf the usury. These witnesses
are sustained by their fellow- members of the
board. The recital in the bonds, that this
was a loan, is explained by the fact that the
form of the bonds was settled after the work
was finished, and with reference to their nego-
tiability in New York, and the contract was
regarded with favor by the Corporation, and
the payment of interest was made without ex
oeption for several jears. It is admitted that
the contract provided prices for the work
done, far exc^ing.the cash estimates of the
engineer. This, the' witnesses say, was the
natural consequence of the embarrassment of
the Company and their want of credit. But
they prove that the proposal of Vallette was
understood and considerately examined; that
it was adopted by the Board, with only one
dissentient vote; that its conditions were per-
formed in good faith by the appellee, and that
the final settlement between Uie contracting
parties was amicable. There was on the part
of the appellee no fraud or circumvention.

These facts oppose an insuperable bar to any
relief from the contract on the ground of lesion
or oppression. Harrison v. Ofuest, 85 Eng. L.
&Eq.,487.

The remaining question for consideration is,
whether it was competent for this Corporation
to execute such securities as these bonds in ful-
fillment of their covenants in a construction
contract, fairly made and executed by the other
party. The 1st section of the Act of Incorpora-
tion endows the corporate body with faculties
for suits, contracts, and all other things legiti-
mate for such cpmpany to do; and *'all the
powers and privileges in anywise necessary
and expedient to carry into effect the proper
business " of the association. The 17th section
establishes the president and directors as the
governing body, and that " their regular and
efficient doings not inconsistent with this
charter" "shall in all cases be deemed the
doings of the Company, and forever held valid
as such."

The 18th section invests them with " full
power to negotiate any loans that may be
deemed expedient for carrying out all the objects
contemplated by this Act; and for the .pay-
ment of such loans, agreeably to the terms
agreed upon, said Company shall bind them-
selves by their bonds, which bonds." &c., &c.,
<&c., "shall be a valid lien upon all the stock
and effects of said Coinpany in the order of
their issue, and all the effects of the Company,
both real and personal, shall be deemed and
taken as a pledge for the punctual payment of
the interest on said bonds, and the ultimate re-

157

270-288

SUPBEMB Ck>UBT OF TBB UKITED 8tATB0

Dbc. Tbrm»

demption of the principal, agreeably to con-
tract.

It is well settled that a corporation, without
special authority, may dispose of land, goods,
and chattels, or of any interest in the same, as
it deems expedient, and in the course of their
legitimate business may make a bond, mort;-
gage, note, or draft ; and also may make com-
positions with creditors, or an assignment for
their benefit, with preferences, except when
restrained by law. %

Partridge v. Badger, 26 Barb., 146; Barry
V. MerchanU* Ex.Co., 1 Sandf. Ch., 280; Beers
V. Phanix Glass Co., 14 Barb., 858; DaTiav,
Bank of the U, A, 5 W. & 8., 228; Frazier v.
WiOcox, 4 Rob.. 517; U, 8. Bank v. Huih. 4
B. Mon., 423; The State ▼. Bank o/Md., 6 Gill
& J., 205; Pierce v. Emery, 82 N. H., 486.

But, in addition to the general powers of the
Corporation, in this instance there is *' full
power" (specially conferred) to negotiate any
loan or loans that the Ck)mpany might deem
expedient for carrying out any or all of the
objects of the Act. We should find great diffi-
culty in deciding that the Corporation was re-
strained by the laws concerning interest and
usury, in view of the comprehensive language
of the 18lh section of the Act. Those laws
rest upon considerations of policy applicable,
for the most part, to individuals engaged in
their ordinary business; and the Legislature
might well conclude that a numerous body,
engaged in a public enterprise, under the direc-
tion of an intelligent board, might be trusted
with a plenary control of their property or
credit, to accomplish the aim of the associa-
tion.

If the rights of the appellees depended upon
the Act of Corporation done, it would be diffi-
cult to resist ihem. But, in January, 1845, the
Legislature of Indiana passed an Act, that re-
cites the Corporation had entered into a con-
tract with Vallette to complete the canal, and
was to' be paid in their bonds, drawing the
legal interest in New York, and doubts were
entertained as to the legality of the issue of
these bonds; and thereupon it was enacted,
that all the bonds which might be issued, in ac-
cordance with the contract existing between the
Company and Vallette, were legalized. A large
portion of the work specified in the contract
was performed after this enactment, and the
settlement under which these bonds were issued
took place subsequently. This act implies that
there was no illegality in the fact that bonds
were employed as a medium of payment for
supplies of materials for, or work and Uibor
done upon, the canal.

The objection that a contract was illegal, and
that no judgment can, therefore, be rendered
upon it, is not allowed from any consideration
of favor to those who allege it The courts,
from public considerations, refuse their aid to
enforce obligations which contravene the laws
or policy of the State. When the Legislature
relieves a contract from the imputation of ille-
gality, neither of the parties to the contract
are in a condition to insist on this objection.
Andrews v. Russell, 7 Black., 475 ^ 8 Ind., 27.

Upon a review of the whole case, it is the
opinion of the court that the contract between
these parties was made without fraud or sur-
prise; that there is no illegality in the cause, or

158

consideration ; that the priority of payment has
not been released or defeated ; and that the re-
lief sought is within the competency of a court
of equity to allow.

Decree affirmed,

ated-l Wall., aOi; 7 Wall., 413; 101 U. 8^ (B8; lO,
Wail., 483.

JOHN DOE, ex dem, Francis A. Dick-
ens, Plff. in Br,,

ALONZO MAHANA.

(See 8. Cm 21 How., 276-288.)

School lots in donation tract, how selected— facts

sJicwing selection.

The Act of March 18, 1818, trrantlDg one hundred
thousand acres, called the donation tract, did not
authorize the Register to select the school lots in
that tract.

The Act of March 3, 1809, o<inf erred that power
on the Secretary of the Treasury.

The fact that they were not sold, nor offered for
Bale, and were claimed as school lands; that the
trustees for the township took possession of them ;
the indorsement on the plat of the lots, of the word
** school " ; that this township had no school lands
asslgrned to it, unless the lots referred to were as-
signed; werA proper to be submitted to the Jury,
from which they might have presumed that the
lots had been duly selected by the Secretary of the
Treasury for school lots.

Argued Jan, SS, 1869. Bedded Feb, 2t, 1859.

IN ERROR to the Circuit Court of the Unit-
ed States for the Southern District of Ohio.

This was an action of ejectment brought in
the court below, by the plaintiff in error, to re-
cover 100 acre lot. No. 8, in the donation tract.
Marietta District, Ohio.

The plaintiff, on the trial, gave in evidence
a patent from the United Slates conveying said
lands to Samuel A. H. Marks, in fee simple,
and a regular chain of title from Marks to him-
self. The defendant claimed to hold the prem-
ises under a lease from the Trustees of Town-
ship 9, Ranfi;e 11., in the County of Morgan,
and in the district of lands sublect to sale at
Chillicothe, who leased them to him as school
lands for the use of said Township.

The trial below resulted in a verdict in favor
of the plaintiff, with damages assessed at one
cent, subject, however, to ue opinion of the
court on the law involved. The court liaving
set aside the verdict and entered Judgment for
the defendant, the plaintiff sued out this writ
of error.

The legislation of Congress under which the
cause arises, as well as the precise point upon
which the case turned in this court, appears in
the opinion of the court.

Messrs, S. F. Vinton and J. J« Coombs»

for plaintiff in error.

Mr, John E. Hanna, for the defendant in
error.

Mr. Juries Catron delivered the opinion of
the court:

By the Act of 21st of April, 1792, there was
granted to Ruf us Putnam and others, known
as the Ohio Company, one hundred thousand
acres of land in the Marietta District, in the
territory northwest of the Ohio River. The
object of Congress and the grantees seems to
have been to cause the country to be inhabited

68 U. i.

GEORGE W. YOUNG

1868

Doe Y. 3fAHAKA.

270-288

by making donations, throagh the Company,
to actual male eettlere, of one liundred acres
each ; and all of the tract not thu^ disposed of
within five years from the date of the grant, re-
verted, by its terms, to the United States, as
eublic lands. The ordinary laws for surveying
y ranges, townships and sectionr.>. did not ap-
ply to this tract, nor to the surplus that might
revert, as ordinary surveys would have thrown
the townships and sections into fractions, by
tho hundrea-acre lots previously disposed of
by the Company.

By compact, the United States stipulated to
give to the State of Ohio one thirty-sixth part
of the public lands in that State, for the use of
schools; and the 16th section of each township
was the land thus contracted to be«given, in
cases where there were regular surveys in town-
ships of six miles square; and, by the Acts of
April 80, 1802, and March 8, 1808 (sec. 8).
Congress further stipulates that the laads pre-
viously promised ''for the use of schools, in
Ueu 01 such of the sections number sixteen as
have been otherwise disposed of, shall be se-
lected by the Secretary of the Treasury, out of
the unappropriated reserved sections in the
most contiguous townships."

By the Act of March 18, 1818, Congress di-
rected the lands in the Ohio Company's dona-
tion tract to be surveyed by the Surveyor-Gen-
eral, separating that conveyed to settlers, from
that not conveyed, and belonging to the United
States by reversion. This latter land he was
to lay off into townships and sections, or into
one hundred-acre lots, conforming them to the
plan observed by the Company, when provid-
ing for actual settlers. And he was ord^ed to
make returns of the surveys to the General
Land Office, and to the Register of the Land
Office at Marietta.* The lands were laid off
into one iiundred-acre tracts, and these tracts
the Act ordeis to be sold, '* with the exception
of the usual proportion for the support of
schools." By the President's proclamation,
thev were offered for sale on the first Monday
in June, 1819. There was no reservation to the
general order of sale, except of such lands as
Uie Secretary should select, according to the
power vested in him b^ the Act of 1803, for the
use of schools ; and it is a fair presumption,
that the Register offered all the lands for sale
that were not reserved. But the difficulty is,
that for the lands in dispute there mieht have
been no bidder when they were offered. That
the Secretary had the power to reserve school
lots, and to bind the United States and the
townships to his selection, is very clear; and
we think it is equally clear that the Register of
the Marietta District had no power to designate
these school lots. As a subordinate, he could
lawfully record the orders of the Secretary in
this respect, but could do no binding act him-
self.

Six of the lots of one hundred acres each,
lying in a body, and square form, together
with lot No 84, adjoining on the east, were not
■old (including No. 8, the lot in dispute).

On the tract book found in the office of the
Raster at Marietta, and by which the sales of
1819 were governed, the word "school" was
written on the plot of each of the seven
lots; but whether made as early as 1819, or aft-
erwards, does not appear; nor, whether the

See 2i How.

then Register (Wood) put the designation there
by order of the Secretary.

It is admitted that the School Commissioners
took possession of the land sued for in 1834,
and have held it ever since by their lessee: and
it is also admitted that township nine, range
eleven, which claims the lots marked " school,"
is without school lands, unless the lots thus
designated belong to it as such.

On the return made of the surveys to the
General Land Office in 1818, there is no indi-
cation that a reservation of any land was made
for township nine, range eleven.

The manner in which the Secretary should
authenticate his selections was not prescribed
by Congress, and depends in this case on evi-
dence not found of record. It must be proved
by circumstances, and cannot be proved in any
other way. '

Another consideration is pressed on the
court, on the part of the plaintiff, to overcome
the fact that this designation is of no value, to
wit: that the Secretary of the Treasury, by his
letter of July 18, 1805, directed land equal to
one section on the southern part of the dona-
tion tract to be laid off as compensation for sec-
tion sixteen, in township five, range ten, the
school tract in township five having been other-
wise appropriated ; and hence it happened, as
is alleged, that the Register marked the lots in
controversy "school." In 1805, the lots thus
marked had not been surveyed; and each one
hundred -acre lot is marked on the tract book
of surveys returned in l818; and as the trust-
ees took the school land for township five,
range ten, elsewhere, the argument has not
much force.

It is also insisted that, in point of fact, the
entire section No. 16, in township nine, range
eleven, remained undisposed of by the Ohio
Company, and was subject to be appropriated
by the Commissioners of the township for school
purposes; and therefore no claim could be set
up by them to lands elsewhere. The Act of
April 80ih, 1802, section 7, provides that the
16th section of dvery township shall be granted
to the inhabitants of the same for the use of
schools. But, then, the 16th section is a des-
ignated portion of land that may result from
an execution of the public surveys made by the
United States, according to the rules and regu-
lations Congress had made or might make.
Until ranges were established, and the lands
surv^ed into townships or sections, no title to
any defifiite land vested in the township. It
had no authoritv to survey and ascertain the
16th section. This authority was reserved ex-
clusively to the United States, and to be exer-
cised as part of the political power. Now, as
the 16th section of township nine, range eleven,
never was legally ascertained, and as no other
evidence could be heard to fix its identity than
a survey approved by the department, estab-
lished for the distribution and sale of the pub-
lic lands, the assumption that the land was un-
appropriated where the 16th section would
have fallen, had a survey in fact been made of
the township, amounts to nothing. Cases af-
fecting school lands, in Ohio and elsewhere,
come under the rule laid down in the noted
case of General Qreen's grant of twenty-five
thousand acres, in the military district of North
Carolina (2 Wheat., 19). The Legislature of

159

886-889

SUFRBXB COUBT OF THS UkITBD i^TATllfl.

Dsc. Tkbm,

that State made the grant by an Act of Assem-
bly; haying made it, it reserved the power to
locate the land by survey through its officers.
The land being surveyed, and the survey re-
turned and recorded in the proper land office,
it was held by this court that the title attached
to the land designated, on the obvious legal
ground that the State of North Carolina was
estopped to disavow its own Act in defining by
survey the precise laud granted ; and so, also,
General Green and his heirs were estopped to
call in question the validity of the definite lo-
cation, the authority to locate by survey hav-
ing been reserved by the granting power. So.
here the granting power reserved the right to
ascertain and identify the land granted to the
schools. Until this was done, no title could be
taken of any particular tract; and when the lo-
cation was made by authority of the United
States, each party was estopped to deny its
binding force. It was. in facti a title by mut-
ual estoppel.

We now come to the precise case presented
on the trial below. The jury were instructed :

Ist. " That the proofs and legal presump-
tions sustaining the title of the defendant must
have reference solely to, and be based upon,
the Act of Congress, approved March 18, 1818,
entitled 'An Act providing for the sale of cer-
tain lands in the District of Marietta,' &c., in
connection with the Act of the 2 ist of April,
1702, granting to Rufus Putnam and others, as
agents and trustees, one hundred thousand
acres, called the donation tract; and that, in
the absence of any express authority to any
other officer to make the selection mt school
lands in said donation tract, by a fair construc-
tion of said Act of 1818, the Register of the
Land Office at Marietta rightfully exercised
such authority."

2d. ' ' That all the evidence and admissions of
facts in the case raised a legal presumption
that the said Register of the Land Office at
Marietta had exercised the authority so vested
in him by said Act of March 18, 1818, prior to
the entry and patent under which the plaintifiF
claims title, by legally selecting the lands in
controversy in this suit (with other lands) for
the support of schools in said township nine,
in range eleven, and it was, therefore, their
duty to return a verdict for the defendant."

The first instruction assumes that the Act of
1818 authorized the Register to select the school
lots in the donation tract ; whereas the Hd sec-
tion of the Act of March 8, 1808. Conferred
the exclusive power on the Secretary of the
Treasury, and therefore the instruction is er-
roneous.

The second instruction declares that the evi-
dence and admissions of facts in the case raised
a legal presumption *' that said Register had ex-
ercised the authority vested in him by the Act
of 1818, prior to the entry and patent under
which the plaintiff claims title," &c.

As the Register had no power to select, it
could not be held that he had legally belected;
nor did he make the entry on the tract book in
due form, had he been instructed by the Secre-
ta^ to record his selection.

The word '* school." appearing on the tract
book, has much significance; but, standing
alone, it did not authorize the Circuit Court to
presume, as matter of law, that the lands had

160

been selected by order of the Secretary. If his
letter to the Redster, directing him to make
the selection, had been product, and taken in
connection with the designation, then we think
the court would have b^n warranted in mak-
ing the legal presumption.

The narrow point in this cause is, did the
Secretary select the land in controversy (with
other lots) for the use of schools. If he did.
then the title of the United States was devested
thereby, and the lands withdrawn from sale.
There are numerous facts tending to prove that
they were selected. 1st. They were not sold,
nor is it at all probable that they were offered
for sale, in 1819. If they are of good quality,
and favorably situated, a jury may be satisfied
that. had> they been offered to bidders at the
public sale, they would have been purchased.
2d. They were claimed as school lanas, selected
for township nine, range eleven. 8d. The
trustees for the township took possession of
them, and leased them out as early as 1884;
and their tenant is yet in possession and here
sued. 4th The indorsement, on the plot of
the lots, of the word "school," indicates, to
some extent, that they had been selected by the
proper authority. What weight this may have,
it will be proper to leave to the jury. 6tb.
That this township had no school lands as-
signed to it, unless the lots referred to were
assiflrned.

These facts, with others, were proper to be
submitted to the jury, from which they might
have presumed that the lots had been duly se-
lected. ^

In the language of the Supreme Court of
Ohio,' in the case of Ooombnand Ettingv. Lane^
4 Ohio, 112— •* Facts presumed are as effect-
ually established as facts proved, where no pre-
sumption is allowed." That was a suit for the
possession of this same land, and involved the
same evidence this case does, and presented the
same questions of law. But there, the cause
was submitted to the Circuit Court on the law
and the facts, without the intervention of a
jury, and the Supreme Court was appealed to
in order to reverse the opinion of the lower
court, on a motion for a new trial. The state
courts dealt with both facts and law; whereas,
here, the jury must deal with the facts and
presumptions, under the instructions of the
court, as resp0^ts the law.

We order the judgment of the Circuit Court to
he retfereed, and remand the cause for another
tried.

JOSEPH E. MONTGOMERY bt al.,
Claimants of the Steamer Republic,
&c., Appti,, •

JOHN J. ANDERSON et al.

(See 8. C, 21 How., 886-380.)

What is final decree — potoer of Circuit Court to
remafid ease — defect of jurisdiction cannot be
cured by amendment.

Where a steamboat was sold by the Marshal, and
the proceeds paid Into the District Court, which de-
creed that the sum claimed by the petitioners was
due fnim the f uud then in court, to the petitioners*
but that, as the fund mi^ht not be sufficient to sat-
Isf J all claims that might be established against the

68 U.Sk

1868

MONTGOMBBT Y. AnDBBSON.

886-989

TesMl, no order for the payment of the money
would be made by the court until it should be fur-
ther advised in the premises ; held, that there was
no final decree upon which an appeal would lie.
The decree was not final, even as to the amount in
controversy between the parties.

The Circuit Court, therefore, had no jurisdiction
of the case, and their Judarment, affirming tbe de-
cree, was erroneous on that ground. The appeal
ouffht to have been dismissed for want of Jurisdic-
tion.

But if the appeal had been regularly before the
Circuit Court, It was not authorized to remand the
case to the District Court, to carry Into execution
its decisions.

As the defect of jurisdiction In the Circuit Court
appeared upon the transcript, it could not be cured
by an amendment in this court, because consent
cannot give jurisdiction, nor learalize it when exer-
cised without the authority at law.

Arffusd Feb. 11, 1869, Decided Feb. gS, 1869.

APPEAL from the Circuit Court of the United
States for the District of Missouri.
On motion to dismiss.

The history of the case and a statement of the
facts appear in the opinion of the court.

Mr. T. Polk, for appellants.

Mr. J. H. RaAkin, for appellees.

Mr, Chief Justice Taney delivered the opin-
ion of Uie court:

The appellees in this case filed a petition in
the District Court of the United States for the
Eastern District of Missouri, stating that they
had, by the laws of Missouri, a lien on the steam-
boat Republic for $2,000, which they had loaned
to the clerk of the boat to purchase supplies and
necessaries, in orrler to enable her to proceed
on a voyage from St. Louis to New Orleans;
that the vessel, at the time the petition was
filed, was under seizure in tbe distnct, in a case
of admiralty and maritime Jurisdiction, and
had been ordered by the court to be sold ; and
the petitioners prayed that they might be per-
mitted to intervene in their own interest, and be
paid out of the proceeds when the steamboat
was sold.

The appellants answered, stating that they
were owners of seven eighths of the vessel, and
denying that the money was needed or useid for
supplies; and insisting that the boat is not liable
for It, and that it is not a lien by the laws of
Missouri.

The petition was filed on the 8d of June,
1857, and the vessel, it appears, was sold by the
Marshal, upon the seizure mentioned in the
petition, and the sale reported and the proceeds
paid into the registry of the court on the 28d of
the same month. The proceeds amounted to
$26,350. Further proceedings were had on
the petition of the appellees, and testimony
taken; and on the 7th of September, in the
same year, the District Court decreed that the
sum claimed by the petitioner was due, with
interest and costs, and a lien on The Republic,
and referred the matter to the commissioner of
the court to compute and report the amount
due.

The commissioner accordingly made his re-
port, stating the amount due For principal and
mterest on the sum loaned, to be $2,034 This
report was confirmed by the court; and there-
upon the court passed a decree, adjudging that
there was due from the fund then in court, to
the petitioners, the sum of $2,084, and to bear
interest from Uiat day ; but that, inasmuch as

8ee 21 How. U. S., Book 16.

some of the causes against The Republic had
not then been determined, and the fund in court
might not be sufficient to satisfy all of the claims
that might be established against the vessel,
no order for the payment of the money would
be made by the court until it should be further
advised in the premises.

The present appellants thereupon prayed an
appeal to the Circuit Cour-t for the District of
Missouri, which was granted ; and further pro-
ceedings took place in the Circuit Court, and
further testimony was taken. And, at the Oc-
tober Term, 1857, the decree of the Disti;}ct
Court was affirmed, and the case remanded to
the District Court to carry out this decree; and
from this decree the appellants prayed an ap-
peal to this court.

This is substantially the case, as it appears
on the transcript from the Circuit Court. We
do not now speak of the admissions filed here,
which we shall presently notice. But, upon
the transcript itself, it appears that there was
no final decree in the District Court, upon
which an appeal would lie to the Circuit Court ;
no final disposition of the fund in the registry.
Indeed, it was no]; final even as to the amount
in controversy between these pariies; for the
amount to be awarded to the appellees was msde
to depend upon the amount of other claims
upon the fund, which were then depending
before the District Court. And, under the Act
of Congress, no appeal would lie from the Dis-
trict to the Circuit Court until there was a final
decree upon the whole case — that is, not until
all the claims on the money in the registry had
been ascertained and adjusted, and Uie whole
amount of the proceeds of the sale of the ves-
sel distributed, b^ the decree, among the par-
ties which the District Court deemed to be en-
titled, according to their respective priorities
and rights.

The Circuit Court, therefore, had no juris-
diction of the case, as it came before them; and
their judgment, affirming the decree, was er-
roneous on that ground. The appeal ought to
have been dismissed for want of jurisdiction.
This point was directly decided in this court,
in the case of Mordeeai et al. v. Lindsay et al. ,
19 How.. 200.

But if the appeal had been regularly before
the Circuit Court, it was not authorized to re-
mand the case to the District Court, to carry
into execution its decisions. The appeal carries
up the reSf or money in the registry, of the Dis-
trict Court, to the Circuit Ck>Hrt; and when
the rights of the parties are adjudicated there,
the court must carry into execution its own de-
cree.

In order to cure these defects in the recoid,
an agreement has been filed in this court, in
which they admit that the whole fund has been
finallv disposed of by the Circuit Court among
the cfaimanls, with the exception of the sum in
controversy between these parties. And tlfey
move to amend the record here according to
this agreement.

But, in the case of Mordeeai etal. v. Lindsay
etal., above referred to, a similar motion was
made to amend the record here, upon a like
agreement. But the court decided that, as the
defect of jurisdiction in the Circuit Court ap-
peared upon the transcript, it could not be
cured by an amendment in this court, because

11 161

482-441

SuFBBMB Court of thx United Statbb.

Drc. Tbbm,

coDBent cannot give jurisdiction, nor le^lize
jurisdiction exercised wittiout the autlionty at
law. The rule laid down in that case must
govern this.

The decree of the Circuit Court must, there-
fore, be reversed, and the case remanded to the
court, tnth directions to dismiss the appeal for
want of jurisdiction.

The District Court can then proceed to pass
a final decree, if that has not been already done;
and from that decree any party who may think
himself aggreived may appeal to the Circuit
Court, and from the final decree of that court
to this, where the sum in controversy is large
enough to give Jurisdiction to the respective
courts upon such appeals.

This view of the subject makes it unnecessary
to examine whether the amount in controversy
between the parties in this appeal is over $2,000 ;
for their respective rights have not been judi-
cially decid^ upon in the Circuit Court, for
want of Jurisdiction, as above stated, when it
acted upon the controversy.

Cited-16 WaU.. 9i6 ; 20 Wall., 225; 28 Wall., 163;
05 U. 8.. 617 ; 11 Bank. Reg., 106.

JULIAN Mccarty and john wynn,

Administrators of Enoch McCartt, De-
ceased, Plffs. in Br.,

GUERNSEY Y. ROOTS, ERA8TU8 P. COE

AND JOHN fl. AYDELOTTE.

(See S. C, 21 How., 48^441.)

Bills — and notes, negotiability of, after payment —
accommodation indorsers — transfer, as eoUater-
al security — liability of trustee.

On payment of bill of exohanspe by the Indorser,
it does not cease to be assig^nable.

The various indorsers to an accommodation bill,
where no consideration has passed as amoncp them-
selves, are not, unless bv special agreement, bound
to pay in equal proportions as co-sureties.

The fact toat the bills were asslfirned to the plaint-
iff as collateral security for a pre-ezistinff debt,
does not impair his riirht to recover.

Where in action against trustee the averments In
re^rd to the assigrnment nowhere show that the
trustee had sufficient funds in his hands, after com-
plying with the terms of the trust, to pay this bill,
the pleadings are defective.

Argued Jan. 29, 1869. Decided Mar. 4. 1869.

IN ERROR to the Circuit Court of the United
States for the District of Indiana.

This was an action of assumpsit, brought in
the court below by the appellees against Enoch
McCartv, as indorsee of a bill of exchange.
The defendant pleaded eight pleas in bar of the
action, some of which were afterwards with-
drawn. The plaintiffs demurred to each plea.
The court sustained the demurrers and called a
jary to assess plaintiffs* damages. The said jury
assessed the damages at $5,284.50, and the court
entered judgment accordingly, whereupon the
defendant took an appeal to this court.

A further statement of the case appears in the
opinion of the court.

Mr. O. H. Smith, for the plaintiffs in er-
ror:

We submit the following legal porpositions:
1. That a joint and co-surety cannot assign

162

the bill, except to a bona fidehoXder, before due
and without notice.

2. That an indorser's liability is only for the
consideration money which he received, and
interest thereon as against such holders.

3. That a pledgee of an overdue bill takes it
subject to all equities.

VaUettey. Mason, 1 Cart. Ind., 288.

4. That a party taking it for security for a
prior debt, parts with nothing, and does not
take it in course of trade, and is not a bona fide
holder.

Coddington v. Bay, 20 Johns., 637; Stalker v.
McDonald, 6 Hill, 08.

5. The bill was not negotiable in Holland's
hands, withE. Tyner's name subsequent to his,
still on it.

Beck V. Bobley, 1 H. BI.. note 89; SMaule &
8., 97; Ouild v. Bager, 17 Mass., 615.

The counsel then reviewed the pleadings,
especially the 7th and 8th pleas (see opinion of
the court, page 439) contending that they were
good. In support of this position, he cited
Stalkers. McDonald, 6 Hill, 98; Byles, Bills,
114; 1 Litt., 290; CiMJ V. Hodge, 7 Blackf., 146;
8 Barn. & C. , 845 : 9 Barn. & C. , 241 ; 18 Wend. ,
478; 4 Pike. 546; 15 Mass., 534; 2 Cai. Cas.,
200; 21 Pick., 195: 9 Met., 511; 4 N.H., 221; 5
Den., 307; 12 N. Y., 466; 13 Ala., 422.

Our positions, as applicable to the several
pleas, are distinctly these:

First. That as the bill was received by the
appellees after it was due and dishonored, thev
took it with notice that it was subject to all
prior equities between the parties.

Byles, Bills, 129, ISO, and numerous authori-
ties, tit. Transfer.

Second. That this case rests upon the same
legal defense that could be set up in a suit be-
tween the indorsers of a bill, as to their equities,
if the action had been brought bv one of them
after paying the bill against the defendant.
The same authorities as above.

Third. That co-sureties are liable to con-
tribution as between themselves, after the pay-
ment of the bill.

Byles, Bills, 199; Kemp v. Finden, 12 M. &
W., 421, and authorities cited to fourth posi>
tion.

Fourth. That if one co-surety takes up the
bill, he cannot maintain an action up it against
a CO surety, but may use it as evidence of the
amount paid, in an action of assumpsit for
money laid out and expended, in which he may
recover in contribution the equitable pro rata
proportion of the money he has actually paid
from his co-surety.

Done V. WhaOey, 17 L J. Exch., 225:8.
C, 2 Exch., 198; OaU v. Walsh, 6 T. R., 289;
Rogers v. Stephens, 2 T. R., 713; Orrv. Magin-
nis, 7 East., 859.

Fifth. That although the indorsers are prima
facie liable to each other in the order in which
their names stand upon the bill, yet it lies in
averment in the pleadings that they are co-sure-
ties, and parol proof is admissible as between
them, to show the true state of their liability.
The same principles applies in suits brought by
an indorsee of the bill i^inst a remote indorser^
when the bill was taken after it was due and
dishonored.

14 Yes.. 170; Byles, Bills, 192. and note, ed.
1853; 9 Met., 511 ; 7 Cush , 404; 4 N. H., 221 ;

68 U. S.

1858

McCarty v. Roots.

483-441

5 Den., 307; 9 Ala.. 949; 38 Me.. 380; 84 Me.,
549; 5 How., 378: 31 Pick.. 195; 38eld. K Y..
83; 3 Ired.. 597; 18 Ohio, 441.

Sixth. That if the principal places funds or
property in the hands of one co-surety sufficient
to pay the bill in trust for that purpose, and
such co-surety takes up the bill from the hold-
er, he cannot sue his co-surety on the bill, nor
for contribution, until he has exhausted the as-
sets of the principal in his hands.

8 Pick., 155; 16 Ala.. 455; 31 Ala., 779;
Adams, Eq., ed. 1855.

Seventh. That time given by the holder to
one co-surety for the payment of the bill to the
prejudice of another co-surety, upon a contract
binding upon the holder, without the assent of
the other co-suretv, discharges such other co-
surety from liabilityupon the bill.

9 Conn., 361: 3 Wheat., 353; 3 Story, 416;
21 Wend., 108; 3 McLean, 111; 10 N. H.. 359;
18 Conn., 361; 3 McLean, 74.

It is admitted that these authorities speak of
principal and surety; but we maintain that the
principles decided apply to the holder and a co-
surety, the case before this court.

Eight. That after a bill is taken up from
the holder by a co-surety, it is no longer avail-
able in the hands of such co surety, or his in-
dorsee who takes it with notice after due and
dishonored, so as to enable such co surety tak-
ing up the bill, or such indorsee, to maintain
an action on the bill against any other co'-surety.

7 N. H., 303; 3 Ired., 417; 34 Me.. 336.

Ninth. That a plea can only be demurred
to specially for duplicity, in which case the de-
murrer must point out a duplicity specially; and
if the plaintiff, instead of demurring, replies to
the plea, his replication must answer so much
of the plea as it assumes to answer; and if it as-
sumes to answer the whole plea and only an-
swers a part, it is bad on demurrer.

I Chit. PI.. 338. 339: 1 Chit. PI., 668, ed.
1855; 3 Johns., 438; 30 Pick.. 356; 10 East., 79;
1 Saund., 100, note 1, tit. Qualities of Replica-
tion: 1 Chit. PI., 643, and authorities, ed. 1855.

Tenth. It is no ground of even special de-
murrer, that a plea contains surplusage; the
doctrine of utile per inutile non vitiatprd Chit.
Pi. . 547) applies.

It is important that the court should keep in
mind that the bill of exchange in this case was
received by the appellees after it was due and
dishonored, and therefore subject to all the
equities of prior parties.

Afr. R. H« Gillet, for defendant in error:

The only questions which this case present
for the consideration of the court relate to the
sufficiency of the pleas as a bar to the action,
and of the replication as an answer to the 6th
plea.

The 8d plea assumes that some of the parties
to the bills in question sustain towards each
other the relation of co sureties, but this is a
mistake. The undertaking of sureties is a joint
undertaking; but that of the parties to these
trills, is separate and successive.

Melkmaldy. Magruder 8 Pet., 470; WHeon
▼. Stanton, 6 Blackf., 607.

It is not sufficient in pleading to state that a
certain relation exists between the parties; but
Ibe facts which create such relation must be
fitatfd

1. Chit. PI., 578; Gould PI.. 867.
8ee 31 H«w.

As the plea in question simply assumes that
Holland was one of the indorsers and co-sure-
ties, instead of stating; the facts on which that
a.ssumption is based, it is bad under the rule,
unless it can be maintained that upon the pay-
ment of a bill by an indorser, it ceases to be
assignable; but the law is otherwise.

Callow V, Lawrence, 3 Maule & fi., 95; Hub-
bard y. Jackson, 4 Bing.. 390; Graves, v Key,
3 B. &Ad.. 313.

The 5th plea is also bad. It is immaterial
where the parties to the bills resided when they
were made, or whether they were accommoda-
tion bills or bills drawn, accepted and indorsed
in the regular course of business, as the plea
admits that they were gotten up in order to en
able the acceptor to borrow money thereon of
the bank, at and by which thejr were dis-
counted. The only statements in this plea which
bear any resemblance to a valid defense, are
the allegations that the bank at which the bills
were discounted is still Uie holder and owner
thereof, and that the indorsers were joint and
co-sureties thereof. The first of these allegations
is negatived in a subsequent part of the plea, and
the second disposed of by the notice which has
been taken of the 3d plea.

The counsel then reviewed the 6th plea and
the replication thereto, with reference princi-
pally to the facts in the case. The insuffi-
ciency of the 1st plea is apparent, from what
has been said respecting the 3d'.

The 8th plea commences with the allegation
that the bill mentioned in the 1st and 3d counts
of the declaration, are one and the same bill.
It is for that cause bad, as amounting to the
general issue.

IChit. PL, 559.

Instead of stating the facts on which the de-
fense rests, it sets' forth evidence tending to
prove those facts. It is therefore an arugmenta-
tive plea, and bad on special demurrer. It is
also bad for repugnancy. Above all these and
similiar objections, stands the fact that the plea
does not state facts sufficient to constitute a de-
fense. It is a settled doctrine that the legal
effect of a written instrument cannot be varied
by proof of a contemporaneous parol agree-
ment.

Wilson V. EUuik, 6 Blackf.. 609; Norton v.
Coons, 6N. Y., 33.

But had there been a valid agreement made
by and between the drawer and indorsers of
the bill in question, that they, in the event of
the failure of the acceptor should contribute
equally in the payment of the bill, would that
fact preclude a recovery in this case? ■ On this
point I refer the court to Burrotigh v. Moss, 10
B. & C, rmiWhiUhead v. Walker, 10 M. & W.,
696; Sturtevant v. Ford, 4 M. & Gr., 101;
Hughes v. Large, 3 Pa. St., 103.

Again, the 8th, and all the other pleas, pro-
fess to be an answer to the whole action, and
as a matter of course are bad, unless they dis-
close a valid defense to the entire demand. On
this point it is submitted, that although the
drawer and indorsers may, by virtue of some
agreement or understanding between them,
bear towards each other the relation of co-sure-
ties, yet Holland, who took the bill up, held it
as a valid security against the defendant for
the sum due from him under such agreement,
and that it is now held by the plaintiffs. But as

1«t

482-441

BUFBRICB Ck>UKT OF THB UnTTSD BTATBS.

Dbc. Term,

none of the pleas disclose the facts on which
the assumption that the drawer and indorsers
stand in that relation towards each other, the
court cannot ascertain their rights and liabili-
ties.

Mr, Justice McLean delivered the opinion
of the court f

This is a writ of error to the District Court
of Indiana.

The action was brought on a bill of exchange
for $4,500, dated Octobet 16, 1054, drawn by
Tyner and Childers. of Peru, Indiana, on Rich-
ard Tyner, of New York, and made payable
to the defendant sixty days after date, at the
office of Wlnslow Lanier, & Co., in the City
of New York; which bill, at sight, was accepted
by the drawee, and afterwards by the payee
assigned to one Holland, who subsequently as-
signed it to Ezekiel Tyner, by whom it wa? aft-
erwards assigned to the plaihtiflFs. Payment
of the bill was refused at maturity, and it was
protested for non-payment Due notice was
given.

The defendant plead^ eight pleas in bar of
the action ; the first, second and fourth being
withdrawn, it is only necessary to notice the
third, iQfth, sixth, seventh and eighth.

The third plea states that George Holland,
who is one of the indorsers and co-sureties there-
of, before the commencement of this suit, on
the 21st day of December, 1854, fully paid the
bill to the Richmond branch of the State Bank
of Indiana, who was then and there the holder
and owner of the same; and that the plaintiffs
received the same after they became due, and
were so p&id.

This plea assumes that one of the indorsers
and CO- sureties, paid the bill. In McDonaJd v.
Magruder, 8 Pet., 470, and in WiUon v. Stan-
tan, 6 Blackf., 507, the doctrine was laid down
that co-sureties are bound to contribute equally
to Uie debt they have jointly undertaken to pay ;
but the undertaking must oe joint, not separate
and successive. The liabilities must arise from
the indorsements, and not from a distinct agree-
ment to pay the face of the bill jointly; the
plea does not necessarily import a joint under-
taking; the facts on which the joint liability is
founded must be stated. On the payment of
the bill by the indorser, it does not cease to be
assignable.

T%e allegations in the fifth plea are not suf-
ficient to bar the action. Several of the mat-
ters so stated have no direct bearing on the
points ipade. The various parties to an ac-
commodation bill, where no consideration has
passed as among themselves, ase not, unless by
special agreement, bound to pay in equal pro-
portions as co-sureties. The averments of the
plea are defective in not stating there was an
agreement between the drawers and indorsers
of the bills of exchange to contribute equally
in paying them.

Nor does the fact that the bills were assigned
to the plaintiff as collateral security for a pre-
existing debt, impair the plaintiff's right to re-
cover.

The sixth plea alleges that no consideration
passed between said drawer, acceptor or in-
dorsers, for said bills, and that the same re-
mained in the hands of R. Tyner until nego-
tiated by him to the Richmond Bank, for. his

164

benefit. And afterwards, and before said bill
became due. to wit : on the Ist of October, 1854,
I\. Tyner, Tyner & Childers, and E. Tyner &
Co. , failed, and made a general assignment of
their property, rights, Ac., to Holland, Abner
McCarty, and R. H. Tyner: and Holland ac-
cepted the trust, and became the active trustee;
that the assignments were made for the debts
and liabilities, first, te indemnify and save
harmless Abner McCarty ; second, to indemnify
and save harmless Holland, said plaintiff, and
N. D. Gallion, in proportion to their respective
liabilities, and next for the payment of other
debts and trusts. The property so assigned is
averred to have been of the value of $150,000,
and amply sufficient to pay the bills in suit,
&c., and that Holland, on July 1, 1855, deliv-
ered said bills, indorsed in blank to said plaint-
iff, as collateral security for a preexisting
debt of Richard Tyner to said plaintiff, all of
which was known to the plaintiff.

To this plea the plaintiff replied, that the
said E. Tyner & Co. did not, each nor either
of them, make an assignment of their property,
rights, credits or eff^ts, to the said Holland,
McCarty, and Tyner, as stated in sixth plea
of the defendant; but it is true that the said
Richard Tyner, in 1854, made an assignment
of said property, rights and effects, to Uiesaid
Holland, McCarty and Tyner. and in trust:
first, to < indemnify and save harmless the said
Abner McCarty as a creditor and surety of the
said Richard Tyner; second, to indemnify and
save harmless the said Holland, N. D. Gal-
lion, Ezekiel Tyner, and the said plaintiff, aa
creditors and securities: but the plaintiff says
the property, rights, credits and effects, so as-
si^ed to the said Holland, McCarty and
Richard H, Tyner, were and still are wholly-
insufficient in value to indemnify and save
harmless the said McCarty as such cr^itor and
surety, so that there are now no effects or
money of the said R. Tyner from which the
bill could be paid, or any part thereof.

This replication was* demurred to, but it
was sufficient, and the demurrer was properly
overruled.

In the seventh plea, which was amended,
an agreement is alleged between the bank and
Holland, that if Holland would give his notes
to the bank, bearing six per cent, interest,
with real and personal security, payable by
installments on the 1st day of January, 1856.
1857, and 1858, the bank would extend the
times of payment as above stated, which was
agreed to by Holland, tlie bank being then the
holder of the bills; and that this was done
without the consent or knowledge of defend-
ant. And it is further alleged that the above
bills were, after due, delivered to said plaintiff
by said Holland, as collateral security for a
preexisting liability of said Holland, and for
no other consideration.

To this plea there was a demurrer on the
^und that there was no agreement between
Holland, E. Tyner & Co., and the defendant,
that on the failure of Richard Tvner to pav
the bills of exchange, Holland, ^. Tyner &
Co., and the defendant, jointly, or in equal
proportions, should pay them. There was no
sufficient averment to this effect. The delivery
of the bills to the plaintiff, as collateral security
for a preexisting debt, under the decision of

62 U. S«

186K

Kenpall v. Winsob.

322-88T

Stcift V. l^son, 16 How., 1, was legal. The
demurrer was properly sustained.

In his eighth plea, the defendant says that the
bills of ezchanse, in the declaration mentioned,
are one and the same identical bills, and not
other or different; that defendant never indors-
ed but one bill of the amount and date stated.
He further says, that the firm of Tyner &
Ohilders consisted of Richard Tyner, James
N. Tyner and William Ghilders; and that of
E. Tvner & Co., of Richard Tyner, and Ezek-
iel Tyner, and Childers, and that said R.
Tyner drew said bill in the name of Tyner &
Childers, and accepted the same in his own
Dame, and indorsed the same in the name of E.
Tyner & Co. ; that each of the parties, with the
said George Holland and this defendant, were at
the time of drawing, accepting, and indorsing,
citizens of Indiana; that the oill of exchange
was discounted by the said bank, and the pro-
ceeds paid to Richard Tyner; that said in-
dorsers were co-sureties thereon; and it was
understood the said defendants, the said Georee
Holland and Ezekiel Tyner. were each to m
CO sureties, and liable to pay a pro rata share
of said bill ; and each of said parties have,
since the indorsing of said bill, admitted a
liability, with the others, in case of insolvency
of prior parties, for whose benefit said bill was
so made to contribute towards payment.

And the defendant further says, that before
the bill became payable, the said Tyner &
Childers, and the said R. Tyner and E. Tyner
A Co., failed, and each of said firms made a
|z;eneral assicrnment of lands, goods, property
and effects, of the value of $1,000 to (5,000,
to one H. J. Shirk; first, to pay depositors;
second, debts for which A. Mc Carty and Hol-
land were liable; and also for the payment of
debts to plaintiffs, and liabilities to them, the
said R. Tyner assigned property and effects,
amounting in value to between $60,000 and
$150,000, to Holland, McCarty, and R. Tyner.
in trust: first, t« indemnify and save harmless
Abner McCarty; and second, this defendant
and (George Hx)lland, the said plaintiffs, and
K. D. Gallion, in proportion to their respect-
ive liabilities for him, and then for payment
of other debts upon other trusts; and Holland
became active for the execution of the trust,
and took up of the Richmond Bank the bill of
which it was holder, and by giving new notes
of the said Holland for this and other debts
of the said Tyner and Holland, and others,
amounting to over $20,000, which sums were
payable subseruently, with interest, and se-
cured by mortgage on real estate conveyed by
Hollana to the bank, all of which was done
without the consent or knowledge of the de
fendant.

And the defendant says that Holland, still
being one of the trustees of said R. Tyner, and
having property in his hands upon the trust
aforesaid of greater value than the amount
of the bills, afterwards, on the Ist of July,
1855, at the coun^ aforesaid, delivered said
bills to the plaintiffs as collateral security for
a pre-existing debt of the said R. Tyner, on
which the said Holland was indorser. And
the defendant says the moneys in said bills of
exchange have not yet been paid by the said
Hollana, or anyone on his behalf. To this
plea there was a demurrer.

See dl How.

This plea but reiterates in effect the same de-
fenses which have already been disposed of
in deciding upon the demurrers before noticed,
and it is not perceived how any any additional
force can be given to them by being grouped
together in one plea.

The fact that these parties were accommoda-
tion indorsers does not make them cosureties,^
bound to contribute equally to the payment of
the bills, without a special agreement to that-
effect; and there is no sufficient averment that
any such agreement existed.

The averments in regard to the assignment
are also defective, for they nowhere show that
Holland had, at any time, sufficient funds in
his hands, after complying with the terms of
the trust — viz>: to save Abner McCarty and
others harmless — to pay this bill; and unless
such a state of fact existed, there could be
nothing in his hands made available for the
bills.

If the fact should appear that these parties
are bound to each other by a separate and dis-
tinct agreement, other than that which appears
by the mdorsements upon the bills, the plaint-
iff in error will have his remedy in an action
of indebitatus atisumpsU against the other parties
to the bills. But we think the averments in
in the pleas noticed are wanting in precision,
and do «ot bring the case within the rule of
special agreements, which impose a joint obli-
gation.

The demurrers are susUUned, and the judg-
ment is affirmed.

GEORGE KENDALL, LEANDER WARE
AND GEORGE L. JENCKE8, Plffs. in Br.

JOSEPH 8. WINSOR.

(See 8. C, 2Si How., 882-881.)

Patent right — concealment of invention , effect of—
— reasonable delay — meaning of "not known
or used^' — inventor's intent, a question for
jury.

Where the inventor deslffnedlv withholds his in-
vention from the pubUo, if, durinff such a conceal-
ment, an invention similar to or identical with his
own should be made and patented, or brouirbt into
use without a patent, the latter cannot be inhib-
ited nor restricted.

But a delay requisite for completing an inven-
tion, or a discreet and reasonable forbearance to
proclaim the theory or operation of a discovery
during its progress to completion, is proper.

The phrase '^not known or used before the appli-
cation for a patent" means, not known or used by
others before the application.

The intent of an inventor with respect to an
assertion or surrender of his rights, is an inquiry
or conclusion of fact, and peculiarly within the
province of the jury, upon the evidence submitted
to them at the trial.

Argued Feb. 16, 1859. Decided Mar. 7, 1869.

IN ERROR to the Circuit Court of the United
States for the District of Rhode Island.
The history of the case and a statement of the
facts involved, appear in the opinion of the
court.

Mr. T. A. Jenekes, for plaintiff in error.

Mr. Charles M. Keller, for defendant in
error:

166

B2^-d3t

SuFRBMB Court or thb Unttbd idTATin.

Dsc. Tkrm,

The question presenled by the exceptions to
the ruling of the court below depends upon the
construction of the 7th section of the Act of
March S, 1839.

The counsel for defendants below assumed
that the prior use or sale named in that section
of the Act, means any use or sale prior to the
application for a patent, whether with or with-
out the consent and allowance of the inventor.
The learned court below gave a different con-
struction to that Act, and held in conformity
with the ruling in Pierson v. The Eagle Screw
Co., 3 Story, &2, that the use and sale therein
named must be a use and sale with the consent
and allowance of the inventor before his appli-
cation for letters patent. ^

This construction is in strict conformity with
the construction given to the Act of 179d.

Melius V. Silsbee, 4 Mas., 108, 110; Shaw v.
Cooper, 7 Pet., 292. 319; 820.

The Act of March 8. 1839, is an Act in addi-
tion to the Act of 1836, and being engrafted
thereon, should be construed by the provisions
of the Act of 1836, so as to harmonize there-
with. And when so construed, the sale and
use before application for letters patent to
work a license, must be a sale or use with the
consent and allowance of the inventor.

There can be no license without consent, and
no consent without knowledge; and yet the
first exception calls for a construction of the A^t
< which shall work a license merely on proof of
user by the defendants, before the plaintiff's
application for a patent, with or without his
knowledge or consent.

The second exception calls for a construction
which shall work a license on proof of knowl-
edge, with or without consent. And the third
exception calls for a construction which shall
work a license on proof of knowledge, and in
the absence* of notice that he did not consent.

The presumption is against the consent; and
yet the exceptions would invert the rule, and
put the onus probanuU on the party having the
advantage of presumption.

Mr. Justice Daniel delivered the opinion of
the court:

This was an action on the case in the Circuit
Court of the United Slates, instituted by the
defendant in error against the plaintiffs, for the
recovery of damages for an alleged infringe
ment by the latter of the rights of the former
as a patentee. No question was raised upon
the pleadinfljs or the evidence* in this case as to
the originality or novelty of the invention pat-
ented, nor with respect to the identity of that
invention with the machine complained of as
an infringement of the rights of the patentee,
nor as to the use of that machine. These sev-
eral facts were conceded ; or at any rate were
not controverted, between the parties to this suit.

Under a plea of not guilty, the defendant in
the circuit court gave notice of the following
defenses to be made by him:

1. A license from the plaintiff to use his in-
vention.

2. A right to use that invention in virtue of
the 7th section of the Act of Congress of the 3d
of March, 1839, which section provides: "That
every person or corporation who has or shall
have purchased or constructed any newly in-
vented machine, manufacture, or composition

166

of matter, prior to the application of the in-
ventor or di^coverer for a patent, shall be held
to possess the right to use, and vend to others
to be used, the specific machine, manufacture,
or composition of matter, so made or purchased,
without liability therefor to the inventor or any
other person interested in such invention."

To the relevancv and effect of the evidence
adduced with reference to the two defenses
thus notified, and to the questions of law arising
upon the issues made by those defenses, this
controversy is properly limited.

Upon the trial in the circuit court, in f* up-
port of this defense, evidence was introduced
tending to show that the plaintiff constructed
a machine, in substantial conformity with his
specification, as early as 1846, and that in 1849
he had several such machines in operation, on
which he made harness to supply all such orders
as he could obtain ; that he continued to run t hese
machines until he obtained his letters patent ; that
he repeatedly declared to different persons that
the machine was so complicated that he preferred
not to take a patent, but to rely on the difficulty
of imitating the machine, and the secrecy in
which he Kept it. And the defendants ' also
gave evidence tending to prove that the first of
their machines was completed in the autumn of
1853, and the residue in the autumn of 1854;
and that, in the coursfl'of that fall, the plaintiff
had kuowlcdge that the defendants had built,
or were builaing, one or more machines like
his invention, and did not interpose to prevent
them.

The plaintiff gave evidence tending to prove
that the first machine built by him was never
completed so as to operate; that his second ma-
chine was only partially successful, and im-
provements were made upon it; that in 1849
he began four others, and completed them in
that year, and made harness on them, which he
sold when he could get orders; that they were
subject to some practical difficulties, particu-
larly as it respected the method of marking the
harness, and the liability of the bobbin to get
out of the clutch ; that he was employed in de-
vising means to remedy these defects, and did
remedy them; that he also endeavored to sim-
plify the machine by using only one cam-shaft;
that he constantly intended to take letters pat-
ent when he should have perfected the ma-
chine; that he applied to Mr. Keller for this
purpose in February, 1853, but the model and
specifications were not sent to Washington till
November. 1 854 ; that he kept the machines from
the view of the public, allowed none of the hands
employed in the mill to introduce persons to
view them, and that the hands pledged them-
selves not to divulge the invention ; that among
the hands employed by the plaintiff was one
Kendall Aldridge, who left the plaintiff's em-
ployment in the autumn of 1852, and entered
into an arrangement with the defendants to
copy the plaintiff's machine for them, and did
so; and that it was bv Aldridge, and under his
superintendence, and by means of the knowl-
edge which he had gained while in the plaint-
iff's employment, under a pledge of secrecy,
that the defendant's machines were built and
put in operation ; and that one of the defend-
ants haa procured drawings of the plaintiff's
machine, and has taken out letters piatent for
it in England.

69 l\ S.

1858.

KifiMDAliL V. WlMSuB.

82!^-881

Each party controverted the facts thus sought
to be proved by the other. ^

The defendant's counsel prayed the court to
instruct the jury as follows:

1. That it is the duty of an inventor, if he
would secure the protection of the patent laws,
to apply for a patent as soon as his machine (if
he has invented a machine) is in practical work-
ing order, so as to work regularljr every day in
the business for which it was designed ; and if
he does not so apply, he has no remedy against
any persons who possess themselves of the in-
vention, with his knowledge and without his
notification to desist, or of bis claims as an in-
ventor before he applies for his patent.

2. That a machine can no longer be consid-
•ered as an experiment, or the subject of experi-
ment, when it is worked regularly in the
^course of business, and produces a satisfactory
fabric, in quantities sufficient to supply t|;ie en-
tire demand for the article.

3. Tliat in order to justify the delay of the
plaintiff in applying for a patent after his ma-
chine was in practical working order, on the
ground of the desire to improve and perfect it,
the plaintiff must show some defect in con-
struction, or difficulty in the operation or mode
of operation, which he desired and expected to
remove by further thought and study; and if
no such tning is shown, then the niachine must
be held to have been completed and finished,
in the sense of the patent law, at the time it
was put in regular working use and operation.

4. That under the 7th section of the Act of
1889, entitled, &c,, if the jury are satisfied that
the niachine, for the use of which the defend-
ants are sued, were constructed and put in op-
eration before the plaintiff applied for his pat-
€nt, then the defendants possessed the right to
use. and vend to others to be used, the specific
mnchlnes made or purchased by them, without
liability therefor to the plain liff; and the jury
are to inquire and find only the fact of such
construction before che date of the plaintiff's
application, in order to render a verdict for the
defendants.

5. That under said section of said Act, if the
machines used by the defendants were pur-
chased or constructed by them before the ap-
plication of the plaintiff for his patent, with
the knowledge of the plaintiff, then they must
be held to possess the right to use, and vend to
others to be used, the machines s(r purchased
or constructed; and the jury are to inquire
into and find only the fact of such purchase or
construction, and that the plaintiff had knowl-
edge of the same, in order to render a verdict
for the defendants.

6. That under said section of said Act, if the
machines used by the defendants were pur-
chased or constructed by them before the ap-
plication of the plaintiff for his patent, without
tlie knowledge of the plaintiff, and without his
notifying the defendants of his claim as the
inventor, and requiiing them to desist from
such construction, then they must be held to
possess the ri^ht to use, and vend to others to
use, the machines so purchased or constructed;
and the jury are to inquire only into and find
the fact of such purchase or construction, and
that the plaintiff had knowledge of the same,
and did not notify the defendant to desist from
such purchase or construction of his claims as

See 21 How.

inventor, in order to render a verdict for the
defendants.

The court set aside all those pravers for in-
structions, and did instruct the Jury as fol-
lows:

1. That if Aldridge, under a pledge of se-
crecy, obtained knowledge of the plaintiff's
machine — and he had not abandoned it to the
public — and thereupon, at the instigation of the
defendants, and with the knowledge, on their
part, of the siirreptitiousness of his acts, con-
structed machines for* the defendants, they
would not have the right to continue to use
the same after the date of the plaintiff's letters
patent. But if the defendants had these ma-
.chine's constructed before the plaintiff's appli-
cation for his letters patent, under the belief
authorized by him that he consented and al-
lowed them so to do, then they might lawfully
continue to use the same after the date of the
plaintiff's letters patent, and the plaintiff could
not recover in this action. And that if the
jury should find that the plaintiff's declaration
and conduct were such as to ^justify the defend-
ants in believing he did not intend to take let-
ters patent, but to rely on the difficulty of imi-
tating his machine, and the means he took to
keep it secret, this would be a defense to the
action. And they were further instructed, that
to constitute such an abandonment to the pub-
lic as would destroy the plaintiff's right to take
a patent, in a case where it did not appear any
sale of the thing patented had been made, and
there was no open public exhibition of the ma-
chine, the jury must find that he intended to
give up and relinquish his right to take letters
patent. But if the plaintiff did intend not to
take a patent, and manifested that intent by
his declarations or conduct, and thereupon it
was copied by the defendant, and so went into
use, the plaintiff could not afterwards take a
valid patent.

To which refusal to give the instructions'
prayed for, as well as to the instructions given,
the defendants, by their counsel, excepted be-
fore the jury retired from the bar; and, as the
matter thereof did not appear of record, prayed
the court to allow and seal this bill of excep-
tions; which, being found correct, has been al-
lowed and sealed accordingly by the presiding
judge,

[L. S.] B. R. Curtis,

Justice Sup. Ct. U. 8.

The first ground of defense assumed under
the notice from the defendant in the court be-
low— viz. : a license from a patentee— may at
once be disposed of by the remark that no evi-
dence was offered on the trial, bearing directly
or remotely upon the fact of an actual license
from the patentee, either to the defendant or
to any person whomsoever. The defense, then,
must depend exclusively upon the proper con-
struction of the section of the law above cited,
and the application of that section to the con-
duct of the parties, as shown by the bill of
exceptions.

It is undeniably true, that the limited and
temporary monopoly granted to inventors was
never designed for their exclusive profit or ad-
vantage; the benefit to the public or commu-
nity at large was another and doubtless the pri-
mary object in granting and securing that mo-
nopoly. This was at once the equivalent given

107

822-^81

BtlPBSMB COUBT OF THX UnITBD BTATBB.

Dbc Tbkx^

by the public for benefits bestowed by the
genius and meditations and skill of individuals,
and the incentive to further efforts for the
same important objects. The true policy and
ends of the patent laws enacted under this
government are disclosed in that article of the
Constitution, the source of all these laws, via :
''to promote the progress of science and the
useful arts," contemplalinff and necessarily im-
plving their extension, ana increasing adapta-
tion to the uses of society. Vide Constitution
of the United States, art L, sec. 8, clause 9.
By correct induction from these truths, it fol-
lows that the inventor who designedly, and
with the view of applying it indennitely and
exclusively for his own profit, withholos his^
invention from the public, comes not within
the policy or objects of the Constitution or
Acts of Conffress. He does not promote, and,
if aided in his design, would impede, the prog-
ress of science and thie useful arts. And with
a very bad grace could he appeal for favor or
protection to that society which, if he had not
injured, he certainly had neither benefited nor
intended to benefit. Hence, if, during such a
concealment, an invention similar to or iden-
tical with his own should be made and patent-
ed, or brought into use without a patent, the
latter could not be inhibited nor restricted, upon
proof of its identity with a machine previously
invented and withheld and concealed by the
inventor from the public. The rights and in-
terests, whether of the public or of Individuals,
can never be made to yield to schemes of self-
iahnpgft or cupidity; moreover, that which is
once given to or is invested in the public can-
not be recalled nor taken from them.

But the relation borne to the public by invent-
ors, and the obligations they are bound to f ul-
fulfill. in order to secure protection from the
former and the right to remuneration, by no
means forbid a delay requisite for completing
'an invention, or for a test of its value or suc-
cess by a series of sufficient and practical ex-
periments ; nor do they forbid a discreet and rea-
sonable forbearance to proclaim the theory or
operation of a discovery during its progress to
completion, and preceaing an application for
protection in that discovery. The former may
be highly advantageous, as tending to the per-
fecting the invention: the latter may be indis-
pensable, in order to prevent a piracy of the
riffhts of the true inventor.

It is the unquestionable right of every invent-
or to confer gratuitously the benefits of his in-
genuity upon the public, and this he may do
either by express declaration or by conduct
equally significant with language — such, for in-
stance, as an acquiescence, with full knowledge
in the use of his invention by others; or he may
forfeit his rights as an inventor by a willful or
negligent postponement of his claims, or by an
attempt to withhold the benefit of his improve-
ment irom the public until a similar or the
same improvement should have been made and
introduced by others. Whilst the remunera-
tion of genius and useful ingenuity is a duty
incumbent upon the public, the rights and wel-
fare of the community must be fairly dealt
with and effectually guarded. Considerations
of individual emolument can never be permit-
ted to operate to the injury of these. But
whilst inventors are bound to diligence and

168

fairness in their dealings with the public with
reference to their discoveries on the other
hand, they are by obligations equally strong^
entitled to protection a^nst frauds or wrongs^
practiced to pirate from them the results of
thought and labor, in which nearly a lifetime
may have been exhausted; the fruits of more-
than the viginH annorum lucubraUana, which
fruits the public are ultimately to gather. The-
shield of this protection has been constantly in-
terposed between the inventor and fraudulent
spoliator by the courts in England, and moat
signally and effectually has this been done by
tms court, as is seen in the cases of Pennoek ^
Sellers v. Dialogue^ 2 Pet., 1, and of Bkaw y.
Cooper, 7 Pet., 292. These may be regarded
as leading cases upon the questions of the ab-
rogation or relinquishment of patent privileges-
as resulting from avowed intention, from aban-
donn^ent or neglect or from use known and
assented to.

Thus, in the former case, the court, on page-
18, interpreting the phrase, " not known or
used before the application for a patent, make-
the inquiry, * what is the true meaning of the
words not known or used,* Ac. They cannot,
mean that the thing invented was not known
or used before the application by the inventor
himself; for that would be to prevent the on It
means of his obtaining a patent. The use as weu*
as the knowledge of his mvention must be in-
dispensable, to enable him to ascertain its-
competency to the end proposed, as well as to-
perfect its component parts. The words, then,
to have any rational interpretation, must mean,
not known or used by others before the appli-
cation. But how known or used? If it were
necessary, as it well might be,to employ othera
to assist in the original structure or use by the
inventor himself, or if before his application
his invention idiould be pirated by another, or
used without his consent, it can scarcely be
supposed that the Legislature had within ita
contemplation such knowledge or use." Fur-
ther on in the same case, page 19, the court say ^
"If an inventor should be permitted to hold
back from the knowledge of the public the
secrets of his invention, if he should for a long-
period of years retain the monopoly, and make
and sell his invention publicly, and thus gather
the whole profits of it, relying on his superior
skill and knowledge of the structure, and then,,
and then only, when the danger of competition
should force him to secure the exclusive rfjght,he
should be allowed to take out a patent, and
thus exclude the public from any further use
than what would be derived imder it durine^
his fourteen years, it would materially retara
the progress of science and the useful arts, and
give a premium to those who should be least
prompt to communicate their discoveries." In
8ha/u) V. Cooper, 7 Pet., this court, on page 819.
in strict coincidence with the decision m 2 Pet. ,
say : "The knowledge or use spoken of in the
Statute could have referred to the public only,
and cannot be applied to the inventor himself;,
he must necessarily have a perfect knowledge
of the thing invented and its use, before he can-
describe it, as by law he is reouired to do pre-
paratory to the emanation of a patent. Bui
there may be cases in which the knowledge of
the invention may be surreptitiously obtiuned,
and communicated to the public, that do not

•2 U. 9»

1658.

Ablbman v. Booth. U. 8. v. Sams.

606-526

affect the right of the inventor. Under such
circumstances, no presumption can arise in
favor of an abondonment of the right to the in-
ventor to the public, though an acquiescence
on his part will lay the foundation for such a
pcesumption."

The real interest of the inventor with respect
to an assertion or surrender of his risrhts under
the Constitution and laws of the United States,
vrhether it be sought in his declarations or acts,
or in forbearance or neglect to speak or act, is
an inquiry or conclusion of fact, and peculiarly
vrithin the province of the jury, guided by
le0&l evidence subniitted to them at the trial.

Kecurring now to the instruction from the
judge at circuit in this case, we consider that
instruction to be in strict conformity with the
principles hereinbefore propounded, and with
the doctrines of his court, as declared in the
cases of Pieniwck v. Dialoatie and 8haw v.
Ootm&r. That instruction aiminish<» or ex-
cluaes no proper around upon which the con-
duct and intent of the plaintiff below, as evinc-
ed either by declarations or acts, or by omis-
sion to speak or act, and on which also the
justice and integrity of the conduct of the de-
fendants were to be examined and determined.
It submitted the conduct and intentions of
both plaintiff and defendants to the jury, as

Questions of fact to be decided by them, guided
imply bv such rules of law as had been settled
with reference to issues like the one before
them; and upon those questions of fact the
luiy have responded in favor of the plaintiff
below, the defendant in error. We think that
the rejection by the court of the prayers offer-
ed bv the defendants at the trial was warranted
by the character of those prayers, as having a
tendency to narrow the inquiry by the jury to
an imperfect and partial view of the ca8e,and to
divert their mincu from a full comprehension
of the merits of the controversy.

7^ dednon of the Circuit Court is a^rmed,
iherrfore, with costs.

Cited— 7 Wall., 006 ; 101 U. S., 484 ; 10 Blatobf., 148.

STEPHEN V. R. ABLEMAN, Plff. in Er„

SHERMAN M. BOOTH.

AND

THE UNITED STATES, Plff, in Er.,

SHERMAN M. BOOTH. .

(See S. C, 21 How., 606-586.)

(MrUfleats in record that Acts of Congress came
in question, unnecessary— judicial authority
must be conferred by government — eaniuft be
exercised in jurisdiction of another goeemment
— Stale Qovemment and General OoDernment
are separate and disUnet sotereignties— judicial
power of this court ^ state ^ourt or judge^may
issue habeas corpuB except wherf person impris-
oned by U. 8. — duty of marshal to make re-
turn to state court, but to rtfuse to obey its
mandate, or to take prisoner before state

See 21 How.

■ court or judge — state judge or court no
right to require it — marshal's duty to resist
staie process — process has no valv&iy beyond
jurisdiction — defects in commissioners* pro-
ceedings, how revised — exclusive jurisdiction of
District Court,

Where, after Judflrment In the Supreme Court of
Wisconsm, and before writ of error was sued out,
the state court entered on Its record that. In such
final' judfirment the validity of certain Acts of Con-
gress was drawn in question, and the decision of
the court was a^ralnst their validity respectively ;
held, that this certificate was not necessary to orive
this court Jurisdiction, because the proceedings
UDon their face show that these questions arose,
and how thev were decided.

There can be no such thins as Judicial authority,
unless it is conferred by a government or sover-
eiflrnty.

No State can authorize one of its Judges or courts
to exercise Judicial power, by habeas corpvs or
otherwise, within the Jurisdiction of another and
an independent government.

Although the State of Wisconsin is sovereign
within its territorial limits, to a certain extent, vet
that sovereignty is limited and restricted by the
Constitution of the United States.

The powers of the General Government and of
the State, although both exist and are exercised
within the same territorial limits, are yet separate
and distinct sovereignties, acting separately and
independently of each other, within tneir respect-
ive spheres.

This court has Judicial power over all cases in
law and equity arising under the Constitution and
laws of the United States, and in such cases, as well
as others enumerated, has appellate Jurisdiction
both as to law and fact, with such exceptions and
under such regulations as Congress shall make.

State court, or Judge, who is authorized by the
laws of the State to issue the writ of habeas corpus^
may issue it in any case where the party is im-
prisoned within its territorial limits, provided it
does not appear, when the application is made,
that the person imprisoned, is in custody under the
authority of the United States.

The court or Judge has a right to inquire. In this
mode of proceeding, for what cause and by what
authority the prisoner is confined within the terri-
torial limits of the state sovereigntv.

And it is the duty of the Marshal, or other per-
son having the custody of the prisoner, to make
known to the Judge or court, by a proper return,
the authority by which he holds him in custody.

But it is at the same time imperatively his duty
to obey the process of the United States, to hold
the prisoner in custody under it, and to refuse
obedience to the mandate or process of Any other
government.

And consequently it is his dutv not to take the

I prisoner, nor suffer him to be taken, before a state
udge or court upon a habeas corpus issued under
state authority.

No state Judge or court, after they are Judicially
informed that the party is imprisoned under the
authority of the United States, has any right to in-
terfere with him, or to require him to be brought
before them.

And if the authority of a State, in the form of
Judicial process or otherwise, should attempt to
control the Marshal or other authorized officer or
agent of the United States, in any respect. In the
custody of the prisoner, it would be his duty to re-
sist it, and to call to his aid any force that might be
necessary to maintain the authority of law against
illegal interference.

No Judicial process, whatever form it may as-
sume, can have any lawful authority outside of the
limits of the Jurisdiction of the court or Judge by
whom it is issued, and an attempt to enforce it be-
yond these boundaries is nothing less than lawless
violence.

If there was any defect of power in the commis-
sioner of the United States, or in his mode of pro-
ceeding, it was for the tribunals of the United
States to revise and correct it, and not for a state
court. ^ ^ .

Where the District Court had exclusive and final
Jurisdiction, by the laws of the United States,
neither the regularity of its proceedings nor the
validity of Its sentence could be called in question
in any other court, either of a State or the United
States, by habeas corpus or other process.

160

(H26-52d

SUFABMK COUKT OF THE UnTTBD StATBS.

Dec. Tkbm,

Argued Jan, 19, 1859. Decided Mar. 7, 1869.

ERRORS to the Supreme Court of the State
of Wisconsin.
The history of these cases and a statement
of the facts appear in the opinion of the court.
See. also, 59 U. 8. (18 How.). 476 and 479.
No counsel appeared in this court for the
defendant in error.

Mr, J. S. Black, Atty-Gen., for the
plaintiffs in error:

1. When a writ of error has issued from this
court to the highest tribuoal of a State, the
judges to whom it is directed are bound to
obey it, or mal^e some return which will ex-
cuse them. If they refuse obedience they are
punishable as for a contempt.

2 Co. Inst.. 425, 427; 4 Jurist. 190; 17th eec.
Judiciary Act of 1789; Act of 2d March, 1831.

2. The Fugitive Slave Law of 1850 is consti-
tutional and valid.

JoneB V. Van Zandt, 5 How., 230; Moore v.
Illinois, 14 How., 13; Henry v. Lowell, 16
Barb., 268; /Sm'« case, 7 Cush., 285; Miller v.
MeQuerry, 5 McL., 469; GommomoeaUh v.
Ori^fA, 2Pick., 11; Wright v. Deacon, 5S. &
R., 62; Jack v. Martin, 12 Wend., 311; ^i/Z
V. Low, 4 Wash. C. C, 827; Prigg v. Pa., 16
Pet., 539; Johnson v. Tompkina, 1 Bald., 571;
Murray v. Hobok^n Co., 18 How., 272.

3. The iudgment of a federal court, charged
by Act of Congress with the duty of trjjmg
an offender against the laws of the United
States, conclusively settles and determines in
every case tried all questions of constitutional
law or statutory construction and of pleading,
which were or might have been raised at the
trial.

CMetes case. 5 0. B., 418; Dime's case, 14
Q. B., 566; Partington's case, 6 Q. B., 649;
Baine's case, 1 Or. & P., 44; Dunn's case, 57
E. 0. L., 216; Chamber's case, Cro. Car., 168;
Prime's cose, 1 Barb., 340; Williamson's case,
26 Penn., 9; Rev. Stats, of Wis., Hab. Cor. 1
Curt. Com., 155. 159; 1 Kent's Com., 319, 489;
2 Story, Const., sec. 1756, 1757; 39th No. of
Federalist; 8l8t No. of Federalist; 2 Wall..
Jr., 526.

4. When a party is accused of any offense
against the United States, and is arrested and
held for trial before a federal court of exclu-
sive jurisdiction, no state court has power to
liberate him by Tutbeas corpus.

Bus?ieirs case, 1 Mod., 119; Watkin's case,
8 Pet., 202; 2 Hale's Pleas of the Crown. 14*:
Kingv.PlaU, 10 Petersd. Abr., 287; Resolu-
tion of Judges, 2 Inst., 615; Pa^^*«ca8e, 2 Ld.
Raym., 1110; HoUoway's case, 5 Binn., 514.

5. When an attempt is made bv a Slate
court which has no jurisdiction to take a crim-
inal out of the hands of a federal court which
has jurisdiction, whether before judgment
or afterwards, the federal officers are bound to
disregard such attempts, and obey the man-
date of the court to which they belong.

Case of The Marshalsea, 10 Co., 76; Cable v.
Cooper, 15 Johns., 152; Horan v. Wahrenber-
ger, 9 Tex., 319; Sta^e v. Richmond, 6 Fost.,
239; Bush v. Richmond, 5 Barb., 276.

6. When a state court lawlessly attempts to
olistruct the administration of criminal justice
in a federal court, the federal court is bound
to protect its officers against all personal con-

170

sequences arising out of their refusal to obey
the state court.

Act of March 2. 1838; 2 Wall.. Jr., 521; Ex
parte Robinson, 3 Liv., Law Mag., 886.

Mr. C7t^f(/tM^i06 Taney delivered the opin-
ion of the court :

The plaintiff in error in the first of these
cases is the Marshal of the United States for
the District of Wisconsin, and the two cases
have arisen out of the same transaction, and
depend, to some extent, upon the same princi-
ples. On that account, they have been argued
and considered together; and the following are
the facts as they appear in the transcripts be-
fore us:

Sherman M. Booth was charged before Win-
field Smith, a Commissioner duly appointed by
the District Court of the United States for the
District of Wisconsin, with having, on the 11th
day of March, 1854. aided and al^tted, at Mil-
waukee, in the said district, the escape of a
fugitive slave from the deputy marshal, who
had him in custody under a warrant issued by
the District Judge of the United States for that
district, under the Act of Congress of Septem-
ber la, 1850.

Upon the examination before the Conmiis-
sioner, he was satisfied that an offense had been
committed as charged, and that there was
probable cause to believe that Booth had been
guilty of it; and thereupon held him to bail to
appear and answer before the District Court of
the United States for the District of Wiscon-
sin, on the first Monday in Julv then next en-
suing. But on the 2oth of May his bail or
suretv in the recognizance delivered him to the
Marshal, in the presence of the Commissioner,
and requested the Commissioner to recommit
Booth to the custody of the Marshal ; and he
having failed to recognize again for his appear-
ance heiore the District Court, the Commis-
sioner committed him to the custody of the
Marshal, to be delivered to the keeper of the
jail until he should be discharged by due
course of law.

Booth made application on the next day, the
27th of May, to A. D. Smith, one of the jus-
tices of the Supreme Court of the State of
Wisconsin, for a writ of haJbe-os corpus, stating
that he was restrained of his liberty by Stephen
V. R. Ableman, Marshal of the United States
for that district, under the warrant of commit-
ment hereinbefore mentioned; and alleging
that his imprisonment was illegal, because the
Act of Congress of September 18, 1850, was
unconstitutional and void; and also that the
warrant was defective, and did not describe the
offense created by that Act, ev^n if the Act
were Y&lid.

Upon this application, the justice, on the
same day, issued the writ of habeas corpus, di-
rected to the Marshal, requiring him forthwith
to have the body of Booth before him (the said
Justice), together with the time and cause of his
imprisonment. The Marshal thereupon, on the
day above mentioned, produced Booth, and
made his return, stating that he was received
into his custody as Marshal on the day before,
and held in custody by virtue of the warrant of
the Commissioner above mentioned, a copy of
which he annexed to and returned with the
writ.

62 U. 8.

1858

Ablbman ▼. Booth. U. B. v. Same.

50&-526

To this return Booth demurred, as not suffi-
cient in law 10 justify^ his detention. And upon
the hearing the justice decided that his deten-
tion was ulegal, and ordered the Marshal to
discharge him and set him at liberty, which
was accordingly done.

Afterwards, on the Oth of June, in the same
year, the Marsha] applied to the Supreme Court
of the State for a eertiordri, setting forth in his
application the proceedings hereinbefore men-
tioned, and charging that the release of Booth
by the justice was erroneous and unlawful,
and praying that his proceedings might be
brought before the Supreme Court of the State
for revision.

The certiorari was allowed on the same dav;
and the writ was accordingly issued on the
12th of the same month; and returnable on the
third Tuesday of the month; and on the 20th
the return was made by the justice, stating the
proceedings, as hereinbefore mentioned.

The case was argued before the Supreme
Court of the State, and on the 19th of July it
pronounced its judgment, affirming the decis-
ion of the associate justice discharging Booth
from imprisonment, with costs against Able-
man, the Marshal.

Afterwards, on the 26th of October, the
Marshal sued out a writ of error, returnable to
this court on the first Monday of December,
1854, in order to bring the judgment here for
revision; and the defendant in error was regu-
larly cited to appear on that day ; and the rec-
ord and proceedings were certified to this court
by the Clerk of the state court in the usual
form, in obedience to the writ of error. And
on the 4th of December, Booth, the de-
fendant^in error, filed a memorandum in writ-
ing in this court, stating that be had been cited
to appear here in this case, and that he sub-
mitted it to the judgment of this court on the
reasoning in the argument and opinions in the
printed pamphlets therewith sent.

After the judgment was entered in the Su-
preme Court of Wisconsin, and before the writ
of error was sued out, the state court entered
on its record, that, in the final judgment it had
rendered, the validity of the Act of Congress
of September 18, 1850, and of February 12,
1793, and the authority of the Marshal to hold
the defendant in his custody, under the process
mentioned in his return to the writ of habeas
corpus, were respectively drawn in question,
and the decision of the court in the final judg-
ment was a^inst their validity, respectively.

This certificate was not necessary to give
this court jurisdiction, because the proceedings
upon their face show that these questions arose,
and how they were decided; but it shows that
at that time the Supreme Court of Wisconsin
did not question their obligation to obey the
writ of error, nor the authority of this court to
re examine their judgment in the cases speci-
fied. And the certificate is given for the pur-
pose of placing distinctly on the record the
points that were raised and deMded in that
court, in order that this court might have no
difficulty in exercising its appellate power, and
pronouncing its judgment upon all of them.

We come now to the second case. At the
January Term of the District Court of the
United States for the District of Wisconsin,
after Booth had been set at liberty, and after

See 21 How.

the transcript of the proceedings in the case
above mentioned had been returned to and filed
in this court, the grand jury found a bill of in-
dictment against Booth for the offense with
which he was charged before the Commis-
sioner, and from which the state court bad
discharged him. The indictment was found
on the 4th of January, 1855. On the 9th a
motion was made by counsel on behalf of the
accused, to quash the indictment, which was
overruled by the court; and he thereupon
pleaded not guilty, upon which issue was
joined. On the 10th a jury was called and ap-
peared in court, when he challenged the array ;
but the cliallenge was overruled and the jury
impaneled. The trial, it appears, continued
from day to day, until the 18th, when the jury
found him guiltj in the manner and form in
which he stood indicted in the fourth and fifth
counts. On the 16th he moved for a new trial
and in arrest of judgment, which motions were
argued on the 20th, and on the 2dd the court
overruled the motions, and sentenced the pris-
oner to be imprisoned for one month, and to
pay a fine of $1,000 and the costs of prosecu-
tion ; and that he remain in custody until the
sentence was complied with.

We have stated more particularly these pro-
ceedings, from a sense of justice to the Dis-
trict Court, as they show that every opportu-
nity of making his defense was ^afforded him,
and that his case was fully heard and consid-
ered.

On the 26th of January, three days after the
sentence was passed, the prisoner, by his coun-
sel, filed his petition in the Supreme Court of
the State, and with his petition filed a copy of
the proceedings in the District Court, ana also
affidavits from the foreman and one other
member of the jury who tried him, stating
that their verdict was, guilty on the fourth and
fifth counts, and not guilty on the other three;
and stated in his petition that his imprisonment
was ille^l, because the Futigive Slave Law was
unconstitutional; that the District Court had
no jurisdiction to try or punish him for the
matter charged against him, and that the pro-
ceedings and sentence of that court were abso-
lute nullities in law. Various other objections to
the proceedings are alleged, which are unimpor-
tant in the questions now before the court, and
need not. therefore, be particularly stated. On
the next day, the 27th, the court directed two
writs of habeas corpus to be issued— one to the
Marshal, and one to the Sheriff of Milwaukee,
whose actual keeping the prisoner was com-
mitted by the Marshal, by order of the District
Court. The habeas corpus directed each of
them to produce the body of the prisoner, and
make known the cause of his imprisonment,
immediately after the receipt of the writ.

On the 80th of January the Marshal made
his return, not acknowledging the jurisdiction,
but stating the sentence of the District Court as
his authority; that the prisoner was delivered
to, and was then in the actual keeping of, the
Sheriff of Milwaukee County, by order of the
court, and he, therefore, had no control of the
body of the prisoner; and if the Sheriff had
not received him, he should have so reported
to the District Cpurt, and should have con-
veyed him to some other place or prison, as the
court should command.

171

506^36

BXTFBBKB COUBT OF THB UmTBD STATBS.

Dbc. Tkiim,

On the same day the sheriff produced the
body of Booth before the state court, and re-
turned that he had been committed to his
custody by the Marshal, by virtue of a tran-
script, a true copy of which was annexed to
his return, and which was the only process or
authority by which he detained him.

This transcript was a full copy of the pro-
ceeding and sentence in the District Court of
the United States, as hereinbefore stated. To
this return the accused, by his counsel, filed a
general demurrer.

The court ordered the hearing to be post-
poned until the 3d of February, and notice to
be given to the District Attorney of the United
States. It was accordingly heard on that d^,
and on the next (February 8d), the court de-
cided that the imprisonment was illegal, and or-
dered and adjudged, that Booth be, and he was,
by that judgment, forever discharged from that
imprisonment and restraint, and he was accord -
inrly set at liberty.

On the 21st of April next following, the At-
tomey-General of the United States presented
a petition to the Chief Jufidce of the Supreme
Court, stating briefly the facts in the case, and
at the same time presenting an exemplification
of the proceedings hereinbefore stated, duly
certified by the Clerk of the state court, and
averring in his petition that the state court
had no jurisdiction in the case, and praying
that a writ of error might issue to bring its
judgment before this court to correct the error.
The writ of error was allowed and issued, and,
according to the rules and practice of the court,
was returnable on the first Monday of Decem-
ber, 1855, and a citation for the defendant in
error to appear on that day was issued by the
Chief Justice at the same time.

m return having been made to this writ,
the Attorney-General, on the 1st of February,

1856, filed affidavits, showing that the writ of
error had been duly served on the Clerk of the
Supreme Court of Wisconsin, at his offide. on
the 80th of May, 1855, and the citation served
on the defendant in error on the 28th of June,
in the same year. And also the affidavit of the
District Attorney of the United States for the
District of Wisconsin, setting forth that when
he served the writ of error upon the clerk, as
above mentioned, he was informed by the
clerk, and has also been informed by one of
the justices of the Supreme Court, which re-
leased Booth, *'that the court had directed
the clerk to make no return to the writ
of error, and to enter no order upon the
journals or records of the courts concern-
mg the same." And, upon these proofs, the
Actorney-Gteneral moved the court for an order
upon the clerk to make return to the writ of
error, on or before the first day of the next en-
suing term of this court. The rule was accord-
ingly laid, and on the 22d of July, 1856, the
Attorney-General filed with the clerk of this
court the affidavit of the Marshal of the Dis-
trict of Wisconsin, that hb had served the rule
on the clerk on the 7th of the month above
mentioned ; and no return having been made,
the Attorney General, on the 27th of February,

1857, moved for leave to file the certified copy
of the record of the Supreme Court of Wiscon-
sin, which he had produced with his applica-
tion for the writ of error, and to docket the

17t

case in this court, in comformity with a mo-
tion to that effect made at the last term. And
the court thereupon, on the 6th of March,
1857, ordered the copy of the record filed by the
Attorney-General to be received and entered
on the docket of this court, to have the same
effect and legal o^ration as if returned by the
clerk with the writ of error, and that the case
stand for argument at the next ensuing term,
without furtner notice to either party.

The case was accordingly docketed, but waa
not reached for argument in the regular order
and practice of the court until the present
term.

This detailed statement of the proceedings in
the different courts has appeared to be neces-
sary- in order to form a just estimate of the
action of the different tribunals in which it has
been heard, and to account for the delay in the
final decision of a case, which, from its charac-
ter, would seem to have demanded prompt ac-
tion. The first case, indeed, was reached for
trial two terms ago. But as the two cases are
different portions of the same prosecution for
the same offense, they, unavoidably, to some ex-
tent, involve the same principles of law, and it
would hardly have been proper to hear and de-
cide the first before the other was ready for
hearing and decision. They have accordingly
been areued together, by the Attorney-General
of the United States, at the present term. No
counsel has in either case appeared for the de-
fendant in error. But we have the pamphlet
arguments filed and referred to by Booth in the
first case, as hereinbefore mentioned, also the
opinions and arguments of the Supreme Court
of Wisconsin, and of the judges who compose
it, in full, and are enabled, therefore, to see
the grounds on which they rely to sup^iort their
decisions.

It will be seen, from the foregoing statement
of facts, that a judge of the Supreme Court of
the State of Wisconsin, in the first of these
cases, claimed and exercised the right to su^r-
vise and annul the proceedings of a commission-
er of the United States, and to discharge a
prisoner, who had been committed by the com-
missioner for an offense against the laws of this
Government, and that this exercise of power
by the judge was afterwards sanctioned and af-
firmed by the Supreme Court of the State.

In the second case the state court has gone a
step farther, and claimed and exercised juris-
diction over the proceedings and judgment of
a District Court of the United States, and upon
a summary and collateral proceeding, by habeas
corpus, has set aside and annulled its iudgment,
and discharged a prisoner, who had been tried
and found guilty of an offense against the laws
of the United States, and sentenced to imprison-
ment by the District Court.

And it further appears that the state court
have not only claimed and exercised this juris-
diction, but have also determined that their de-
cision is final and conclusive upon all the courts
of the United States, and ordered their clerk
to disregard and refuse obedience to the writ of
error issued by this court, pursuant to the Act
of Congress of 1789, to bring here for examina-
tion and revision the judgment of the state
court.

These propositions are new in the jurispru-
dence of the United States as well as of the

62 U. S.

1858.

Ablbman t. Booth. U. 8. ▼. Samb.

506-526

States; and the supremacv of the state courts
over the courts of the United States, in cases
arisine under the Constitution and laws of the
United States, is now for the first time asserted
and acted upon in the Supreme Court of a
State.

The supremacy is not, indeed , set forth dis-
tinctly and broadlv, in so many words, in the
printed opinions of the judges. It is intermixed
with elaborate discussions of different provis-
ions in the Fugitive Slave Law, and of the
privileges and power of the writ of habeas cor-
pus. But the paramount power of the State
court lies at the foundation of these decisions;
for their commentaries upon the provisions of
that law, and upon the privileges and power
of the writ of habeas corpus, were out of place,
and their judicial action upon them without
authority of law, unless they had the power to
revise and control the proceedings in the crim-
inal case of which they were speaking; and
their jud^ents. releasing the prisoner, and
disregardmg the writ of error from this court,
can rest upon no other foundation.

If the judicial power exercised in this in-
stance has been reserved to the States, no of-
fense a^nst the laws of the United States can
be punished by their own courts, without the
permission and according to the judgment
of the courts of the State in which the party
happens to be imprisoned; for, if the Supreme
Court of W isconsfn posessed the power it has ex-
ercised in relation to offenses against the Act of
Congress in question, it necessarily follows that
they must have the same judicial authority in re-
lation to anv other law of the United States ; and,
consequently, their Supervising and controlling
power would embrace the whole Criminal Code
of the United States, and extend to offenses
against our revenue laws, or anv other law in-
tended to guard the different departments of
the General Qovemment from fraud or violence.
And it would embrace all crimes, from the high-
est to the lowest; including felonies, which are
punished with death, as well as misdeamenors,
which are punished by imprisonment. And,
moreover, if the power is p possessed by the Su-
preme Court of the State of Wisconsin, it must
belong equally to every other State in the
Union, when the prisoner is within its territo-
rial limits: and it is very certain that the State
courts would not always agree in opinion; and
it would often happen, that an act which was
admitted to be an offense, and justly punished,
in one State, would be regarded as innocent,
and indeed as praiseworthy, in another.

It would seem to be hardly necessary to do
more than to state the result to which these de-
cisions of the state courts must inevitably lead.
It is, of itself, a sufficient and conclusive an-
swer: for no one will suppose that a govern-
ment which has now lasted nearly seventy
years, enforcing its laws by its own tribunals,
and preserving the union of the States, could
have lasted a single year, or fulfilled the hi^h
trusts committed to it, if offenses against its
laws could not have been punished without the
^consent of the State in which the culprit was
found.

The judges of the Supreme Court of Wiscon-
sin do not distinctly state from what source
they suppose they have derived this judicial
power. There can be no such thing as judicial

Bee 81 How.

authority, unless it is conferred by a govern-
ment or sovereignty; and if the judges and
courts of Wisconsin possess the jurisdiction
they claim, they must derive it either from the
United States or the State. It certainly has not
been conferred on them by the United States;
and it is equally clear it was not in the
power of the State to confer it, even if it had
attempted to do so; for no State can authorize
one of its judges or courts to exercise judicial
power, by habeas corpus or otherwise, within
the jurisdiction of another and independent
Government. And although the State of Wis-
consin is sovereign within its territorial limits to
certain extent, yet that sovereignty \» limited
and restricted bv the Constitution of the United
States. And the powers of the General Gov-
ernment, and of the State, although both exist
and are exercised within the same territorial
limits, are yet separate and distinct sovereign-
ties, acting separately and independently of
each other, within their respective spheres.
And the sphere of action appropriated to the
United States is as far beyond the reach of the
judicial process issued by a state judge or a
state court, as if the line of division was traced
by landmarks and monuments visible to the eye.
And the State of Wisconsin had no more power
to authorize these proceedings of its judges and
courts, than it would have Bad if the prisoner
had been confined in Michigan, or in any other
State of the Union, for an offense against the
laws of the State in which he was imprisoned.

It is, however, due to the State to say, that
we do not find this claim of paramount juris-
diction in the state courts over the courts of
the United States asserted or countenanced by
the Constitution or laws of the State. We find
it only in the decisions of the Judges of the
Supreme Court. Indeed, at the very time these
decisions were made, there was a statute of the
State which declares that a person brought up
on a habeas corpus shall be remanded, if it ap-
pears that he is confined :

Ist. By virtue of process, by any court or
judge of the United States, in a case where
such court or judge has exclusive jurisdiction ;
or,

2d. By virtue of the final judgment or de-
cree of any competent court of civil or crimi-
nal jurisdiction." Revised Statutes of the State
of Wisconsin, 1849, ch. 124, page 629.

Even, therefore, if these cases depended
upon the laws of Wisconsin, it would be diffi-
cult to find in these provisions such a grant of
iudicial power as the Supreme Court claims to
have derived from the State.

But, as we have already said, questions of
this kind must alwajrs depend upon the Consti-
tution and laws of the United States, and not of
a State. The Constitution was not formed
merely to guard the States against danger from
foreign nations, but mainly to secure union
and harmony at home; for if this object could
be attained, there would be but little danger
from abroad ; and to accomplish this purpose,
it was felt by the statesmen who framed the
Constitution, and by the people who adopted
it, that it was necessary that many of the rights
of sovereignty which the States then possessed
should be ceded to the General Government;
and that, in the sphere of action assigned to it,
it should be supreme and strong enough to ex-

17t

506-526

BtlPBSMB OotJBT OF THB UHTTBD STATBS.

Dbc. Tbbm,.

ecute its own laws by its own tribunals, with-
dit interruption from a State or from state au-
thorities. And it was evident that anything
short of this would be inadequate to the main
objects for which the Government was estab-
lished ; and that local interests, local passions or
prejudices, incited and fostered by individuals
for sinister purposes, would lead to acts of ag-
gression •and injustice by one State upon the
rights of another, which would ultimately
terminate in violence and force, unless there
was a common arbiter between them, armed
with power enough to protect and guard the
rights of all, by appropriate laws, to be carried
into execution peacefully by its judicial tribu-
nals.

The language of the Constitution, by which
this power is granted, is too plain to admit of
doubt or to need comment. It declares tl^it
"this Constitution, and the laws of the United
States which shall be passed in pursuance
thereof, and all treaties made, or which shall
be made, under the authority of the United
States, shall be the supreme law of the land,
and the judges in eveiy State shall be bound
thereby, anything in the Constitution or laws
of any State to the contrary notwithstanding."

But the supremacy thus conferred on this
Government could not peacefully be main-
tained, unless it was clothed with judicial
power, equally paramount in authority to carry
it into execution; for if left to the courts of
justice in the several States, conflicting decis-
ions would unavoidably take place, and the
local tribunals could hardly be expected to be
always free from the local influences of which
we have spoken. And the Constitution and
laws and treaties of the United States, and the
powers granted to the Federal (Jovernment,
would soon receive different interpretations in
different States, and the Government of the
United States would soon become one thing
in one State and another thing in another.
It was essential. ' therefore, to its very exist-
ence as a Government, tliat it should have
the power of establishing courts of justice, al-
together independent of state power, to carry
into effect its own laws; and that a tribunal
should be established in which all cases which
might arise under the Constitution and laws
and treaties of the United States, whether in a
state court or a court of the United States,
should be Anally and conclusively decided.
Without such a tribunal, it is obvious that there
would be no uniformity of judicial decision ;
and that the supremacy (which is but another
name for independence), so carefully provided
in the clause of the Constitution above referred
to, could not possibly be maintained peacefully,
unless it was associated with this paramount
judicial authority.

Accordingly, it was conferred on the Gen-
eral Government, in clear, precise and com-
prehensive terms. It is declared that its judi-
cial power shall (among other subjects enumer-
ated) extend to all cases in law and equity
arising under the Constitution and laws of the
United States, and that in such cases, as well
as the others there enumerated, this court shall
have appellate jurisdiction both as to law and
fact, with such exceptions and under such reg-
ulations as Congress shall make. The appel-
late power, it will be observed, is conferred on

174

this court in all cases or suits in which such a
question shall arise. It is not confined to suits
in the inferior courts of the United States, but
extends to all cases where such a question
arises, whether it be in a judicial tribunal of a
State or of the United States. And it is mani-
fest that this ultimate appellate power in a tri-
bunal created by the Constitution itself waa
deemed essential to secure the independence
and supremacy of the General Government in
the sphere of action assigned to it; to make the
Constitution and laws of the United States uni-
form, and the same in every State ; and to guard
against evils which would inevitably arise
from conflicting opinions between the courts of
a State and of the United States, if there was
no common arbiter authorized to decide be-
tween them.

The importance which the framers of the
Constitution attached to such a tribunal, for
the purpose of preserving internal tranquillity,
is strikingly manifested by the clause which
gives this court jurisdiction over the sovereign
States which compose this Union, when a con-
troversy arises between them. Instead of re-
serving the right to seek redress for injustice
from another State by their sovereign powers,
they have bound themselves to submit to the
decision of this court, and to abide by its judg-
ment. And it is not out of place to say, here,
that experience has demonstrated that thia

gower was not unwisely surrendered by the
tates; for in the time that has already elapsed
since this Government came into existence,
several irritating and angry controversies have
taken place between adjoining States, in rela-
tion to their respective boundaries, and which
have sometimes threatened to end in force and
violence, but for the power vested in thi&
court to hear them and decide between them.

The same purposes are clearly indicated by
the different language employed when confer
ring supremacy upon the laws of the United
States, and jurisdiction upon its courts. In
the first case, it provides that " this Constitu-
tion, and the laws of the United States which
shall be made in pursuance thereof, shall be
the supreme law of the land, and obligatory
upon the judges in every State." The words
in italics show the precision and foresight
which marks every clause in the instrument.
The sovereignty to be created was to be limited
in its powers of legislation, and if it passed a
law not authorized by its enumerated powers,
it was not to be regarded as the supreme law of
the land, nor were the state judges bound to
carry it into execution. And as the courts of
a State, and the courts of the United States,
might, and indeed certainly would, often differ
as to the extent of the powers conferred by the
'General Government, it was manifest that se-
rious controversies would arise between the au-
thorities of the United States and of the States,
which must be settled by force of arms, unless
some tribunal was created to decide between
them finally and without appeal.

The Constitution has accordingly provided,
as far as human foresight could provide, against
this danger. And in conferring judicial power*
upon the Federal Government, it declares that
the jurisdiction of its courts shall extend to all
cases arising under "this Constitution" and
the laws of the United States — cleaving out ^e

68 U.S.

1858.

Ableman v. Booth. U. S. v. Samb.

50(M526

words of restriction contained in the grant of
legislative power which we have above noticed.
The judicial power covers every legislative Act
of Congress, whether it be made within the
limits of its delegated powers, or be an assump-
tion of power beyond the grants in the Consti-
tution.

This Judicial power was justljr regarded as
indispensable, not merely to mamtain the su-
premacy of the laws of the United States, but
also to guard the States from any encroach-
ment upon their reserved rights by the General
Government. And as the Constitution is the
fundamental and supreme law, if it appears
that an Act of Congress is not pursuant to and
within the limits of the power assigned to the
Federal Government, it is the duty of the courts
of the United States to declare it unconstitu
tlonal and void. The grant of judicial power is
not confined to the administration of laws
passed in pursuance to the provisions of the Con-
stitution, nor confined to the interpretation of
such laws ; but. by the very terms of the grant, the
Constitution is under their view when any Act
of Congress is brought before them, and it is
their duty to declare the law void, and refuse
to execute it, if it is not pursuant to the legisla-
tive powers conferred upon Congress. And as
the final appellate power in all such questions
is given to this court, controversies as to the
respective powers of the United States and the
States, instead of being determined by militarv
and physical force, are heard, investigated,
and finally settled, with the calmness and delib-
eration of judicial inquiry. And no one can
fail to see, that if such an arbiter had not been
provided, in our complicated system of gov-
ernment, internal tranquillity could not have
been preserved ; and if such controversies were
ieft to arbitrament of physical force, our Gov-
ernment, State and National, would soon cease
to be Governments ol laws, and revolutions by
force of arms would take the place of courts of
justice and judicial decisions.

In organizing such a tribunal, it is evident
that everv precaution was taken, which hu-
man wisdom could devise, to fit it for the high
duty with which it was intrusted. It was not
ieft to Congress to create it by law; for the
States could hardly be expected to confide in
the impartiality of a tribunal created exclusively
by the General €k)vemment, without any partic-
ipation on their part. And as the performance
of its duty would sometimes come in confiict
with individual ambition or interests, and pow-
erful political combinations, an Act of Con-
gress establishing; such a tribunal might be re-
pealedin order to establish another more sub
servient to the predominant political influences
or excited passions of the day. This tribun-
nal, therefore, was erected, and the powers of
which we have spoken conferred upon it, not
by the Federal Government, but by the peo-
ple of the States, who formed and adopted
that Government, and conferred upon it all
the powers, legislative, executive, and judicial,
which it now possesses. And in order to se^
cure its independence, and enable it faithfully
and firmly to perform its duty, it engrafted it
upon the Constitution itself, and declared that
this court should have appellate power in all
cases arising under the Constitution and laws
of the United States. So long, therefore, as

See 21 How.

this Constitution shall endure, this tribunal
must exist with it, deciding in the peaceful
fonns of judicial proceeding the angry and ir-
ritating controversies between sovereignties,
which in other countries have been determined
by the arbitrament of force.

These principles of constitutional law are
Confirmed and illustrated by the clause whicli
confers legislative power upon Congress. That
power is specifically given in article 1, section
8, paragraph 18, in the following words:

*' To make all laws which shall be necessary
and proper to carry into execution the forego
ing powers, and all other powers vested by this
Constitution in the Government of the United
States, or in any department or officer thereof."

Under this clause of the Constitution, it be-
came the duty of Congress to pass such laws
as were necessary and proper to carry into ex-
ecution the powers vested in the Judicial De-
partment. And in the performance of this
duty, the First Congress, at ite first session,
passed the Act of 1789, ch. 20, entitled *'An
Act to establish the judicial courts of the Unit-
ed states." It will be remembered that many
of the membera of the Convention were also
members of this Congress, and it cannot be
supposed that they did not understand the
meaning and intention of the great instrument
which th^ had so anxiously and deliberately
considered, clause by clause, and assisted to
frame. And the law they passed to carry into
execution the powers vested in the Judicial
Department of the Gk)vemment proves, past
doubt, that their interpretation of the appellate
powers conferred on this court was the same
with that which we have now given ; for by
the 25th section of the Act of 1789. Congress
authorized writs of error to be issued from
this court to a state court, whenever a right
had been claimed under the Constitution or
laws of the United Sutes, and the decision of
the state court was against it. And to make
this appellate power effectual, and altogether
independent of the action of state tribunals,
this Act further provides, that upon writs of
error to a state court, instead of remanding
the cause for a final decision in the state court,
this court may at their discretion, if the cause
shall have been once remanded before, proceed
to a final decision of the same, and award ex-
ecution.

These provisions in the Act of 1789 tell us,
in language not to be mistaken, the great im-
portance which the patriots and statesmen of
the First Congress attached to this appellate
power, and the foresight and care with which
they guarded its free and independent exer-
cise against interference or obstruction by
States or state tribunals.

In the case before the Supreme Court of Wis-
consin, a right was claimed under the Constitu-
tion and laws of the United States, and the de-
cision was against the right claimed; and it re-
fuses obedience to the writ of error, and re-
gards its own judgment as final. It has not
only reversed and annulled the judgment of
the District Court of the United States, but it
has reversed and annulled the provisions of the
Constitution itself, and the Act of Congress of
1789, and made the superior and appellate
tribunal the inferior and subordinate one.

We do not question the authority of state

175

506-526

BUFBSMS C!OUBT OF THB UmTBD StATBS.

Dbc. Tbrm,

court, or judge, who is authorized by the laws
of the State to issue the writ of habeas corpus,
to issue it in any case where the party is im-
prisoned within its territorial limits, provided
It does not appear, when the application is
made, that the person imprisoned is in custody
under the authority of the United States. The
court or judge has a right to inquire, in this
mode of proceeding, for what cause and by
what authority the prisoner is confined within
the territorial limits of the state sovereignty.
And it is the duty of the Marshal, or other
person having the custody of the prisoner, to
make known to the judge or court, bv a proper
return, the authority by which he holds him
in custody. This ri^ht to inquire by process
of haheM eorpiis, and the duty of the officer
to make a return, grows, necessarily, out of
the complex character of our Government,
and the existence of two distinct and separate
sovereignties within the same territorial space,
each of them restricted in its powers, and each
within its sphere of action, prescribed by the
Constitution of the United States, independent
of the other. But, after the return is made,
and the state judge or court judicially ap-
prised that the party is in custody under the
authority of the United States, they can pro-
ceed no further. They then know that the
prisoner is within the dominion and jurisdic-
tion of another Government, and that neither
the writ of habeas corpus, nor any other proc-
cess Issued under state authority, can pass over
the line of division between the two sovereign-
ties. He is then within the dominion and ex-
clusive jurisdiction of the United States. If
he has committed an offense against their laws,
their tribunals alone can punish him. If he is
wrongfully imprisoned, their judicial tribunals
can release him and afford him redress. And
although, as we have said, it is the duty of the
Marshal, or other person holding him, to make
known, by a proper return, the authority under
which he detains him, it is at the same time im-
peratively his duty to obey the process of the
United States, to hold the prisoner in custody
under it, and to refuse obedience to the mandate
or process of any other Government. And con-
sequently it is his duty not to take the prisoner,
nor suffer him to be taken, before a state judge
or court upon a h4jJbeas corpus issued under
state authority. No state judge or court, after
they are judicially informed that the party is
imprisoned under the authority of the United
States, has any right to interfere with him, or
to require him to be brought before th^m. And
if the authority of a State, in the form of ju-
dicial process or otherwise, should attempt to
control the Marshal or other authorized officer
or agent of the United States, in any respect,
in the custody of his prisoner, it would be his
duty to resist it, and to call to his aid any force
that might be necessary to maintain the au-
thority of law against illegal interference. No
judicial process, whatever form it may assume,
can have any lawful authority outside of the
limits of the jurisdiction of the court or judge
by whom it is issued; and an attempt to enforce
it beyond these boundaries is nothing less than
lawless violence.

Nor is there anything in this supremacy of
the General Government, or the jurisdiction of
its judicial tribunals, to awaken the jealousy or

176

offend the natural and just pride of State sover-
eignty. Neither this Government, nor the pow-
ers of which we are speaking, were forced upon
the States. The Constitution of the United
States, with all the powers conferred by it on the
General Gk>vernment, and surrendered by the
States, was the voluntary act of the people of
the several States, deliberately done, for their
own protection .and safety against injustice
from one another. And their anxiety to pre-
serve it in full force, in all its powers, and to
guard against resistance to or evasion of its
authority, on the paFt of a State, is proved by
the clause which requires that the members of
the State Legislatures, and all executive and
judicial officers of the several States (as well
as those of the General Gk>vernment), shall be
bound, by oath or affirmation, to support this
Constitution. This is the last and closing
clause of the Constitution, and inserted when
the whole frame of Government, with the
powers hereinbefore specified, had been adopted
by the Convention; and it was in that form,
and with these powers, that Uie Constitution
was submitted to the people of the several
States, for their consideration and decision.

Now. it certainly can be no humiliation to
the citizen of a Republic to yield a ready
obedience to the laws as administered by the
constituted authorities. On the contrary, it is
among his first and highest duties as a citizen,
because free ^vernment cannot exist without
it. Nor can it be inconsistent with the dignity
of a sovereign State, to observe faithfully, and
in the spirit of sincerity and truth, the com-
pact into which it voluntarily entered when it
became a State of this Union. On the con-
trary, the highest honor of sovereignty is un-
tarnished faith. And certainly no faith could
be more deliberately and solemnly pledged than
that which every State has plighted to the
other States to support the Constitution as it is,
in all its provisions, until they shall be altered
in the manner which the Constitution itself
prescribes. In the emphatic language of the
pledge required, it is to support Siis Constitu-
tion. And no power is more clearly conferred
by the Constitution and laws of the United
States, than the power of this court to decide,
ultimately and finally, all cases arising under
such Constitution and laws; and for that pur-
pose to bring here for revision, by writ of error,
the judgment of a state court, where sudi
questions have arisen, and the right claimed
under them denied by the highest judicial
tribunal in the State.

We are sensible that we have extended the
examination of these decisions beyond the lim-
its required by any intrinsic difficulty in the
questions. But the decisions in question were
made by the supreme judicial tribunal of the
State; and when a court so elevated in its posi-
tion has pronounced a judsinent which, if it
could be maintained, woula subvert the very
foundations of this Gk>vemment, it seemed to
be the duty of this court, when exercising its
appellate power, to show plainly the grave
errors into which the state court has fallen,
and the consequences to which they would in-
evitably lead.

But it can hardly be necessary to point out
the errors which followed their mistaken view
of the jurisdiction they might lawfully exer-

68 U. 8.

1858.

BrITTAN ▼. fiARNABT.

527-588

ciae; because, if there was anjr defect of power
in the Commissioner, or in his mode of pro-
ceeding, it was for the tribunals of the United
States to revise and correct it, and not for a
state court. And as regards the decision of
the District Court, it had exclusive and final
Jurisdiction by the laws of the United States;
and neither the regularity of its proceedings
nor the validity of its sentence could be called
in question in any other court, either of a State
or the United States, by habeas corpus or any
other process.

But although we think it unnecessary to dis-
cuss these questions, yet. as they have been
decided by the state court, and are before us
on the record, and we are not willing to be
misunderstood, it is proper to say that, in the
judgment of this court, the Act of Con^ss
commonly called the Fugitive Slave Law is. in
all of its provisions, fully authorized by the
Constitution of the United States; that the Com-
missioner had lawful authority to issue the
warrant and commit the party, and that his
proceedings were regular and conformable to
law. We have already stated the opinion and
jud^ent of the court as to the exclusive ju-
risdiction of the District Court, and the ap-
pellate powers which this court is authorized
and required to exercise. And if a^y argu-
ment was needed to show the wisdom and ne-
cessity of this appellate power, the cases be-
fore us sufficiently prove it, and at the same
time emphatically call for its exercise.

The judgment of the Supreme Court of Wis-
consin must, therefore, be reversed in each of the
eases now btfore the court.

Bev'sr-n wis., 496.

Cited— 24 How., 4eOj3 WaU., 764 ; 6 Wall.. 196, 2S8,
360: 10 Wall., 4S6; 18 Wall., 408, 410 ; 91 U. 3., 372 : 98
U.S., 24, 137; 100 U.S., 376; 1 Abb. U. 8., 145, 147,
154; SBlatchf., 106; 1 Bond., 562; 1 Low.. 106; 1
Spniflrue, 610.

JOHN W. BRITTAN, Appt,

WM. A. BARNABY, Claimant of the Ship
Alboki, her Tackle, &c.

(See 8. C.,21 How.. 527-588.)

Freight, when demandable — what is — delivery of
part — re€Uon(Me time — Hen for, when part de-
Utered— opportunity to ecsamine goods— ^hen
may be stored, to preserve Hen — memorandum
on biU oflading^eustom, cts varying.

The oonsigiiee of a ship has no riffht to demand
the freight upon the whole shipment, when he was
only ready to deliver a part of it.

where a ship master has a larirer shipment under
one bill of ladinif than he can land in the business
hours of a day, as he has the control of unloading
the canro, he must take care to do it in such quan-
tities that he mav be able to have the pro rata
freight ascertained: and until it shall be done, he is
not In readiness to deliver such part, or to demand
the freight which may be due upon it. Goods so
landed will be under his care and responsibility,
without additional expense to the consignee of
them until they shall be ready for delivery.

** Freight " is the hire agreed upon between the
owner and master, for the carriage of goods from
one port or place to another.

Note.— I«ien for freight. Who has, and how
waived. See note to Blaine v. the Charles Garter,
8 n. B. (4 Cranch 820), and note to Raymond v.
Tyson, 58U. 8.

See 21 How. U. S., eoojt 16.

That hire, without a different stipulation by the
parties. Is only pavable when the merchandise is in
readiness to be delivered to the person having the
right to receive it. Then the freight must be paid
before an actual delivery can be (iUled for.

The master is bound to deliver the goods In a rea-
sonable time.

When the shipment cannot be landed in a dav, if
he lands a part of it, his lien upon the whole gives
him the power to ask from the consignee or the
merchfinalse a satisfactory security for the pay-
ment of the entire freight as called for by the biU
of lading. But a security or arrrangement Is all
that he can ask.

He may not demand that the whole freight of
the shipment should be paid before the conSgnee
has the opportunity to examine his goods, to see If
the obligations of the bill of lading nave been ful-
filled by the ship owner.

When landings of the same shipment are made on
different days, if the shipper shall not be present to
receive the goods, and has not made an arrange-
ment to secure the payment of the freight, they
may be stored for safe keeping at the consignee's
expense and risk. In the ship owner's name, to pre-
serve his lien for the freight.

A stamp or memorandum upon a bill of lading
(that freight Is. payable prior to delivery) cannot ,
of Itself change the well-known commercial rule
in respect to toe delivery of goods and the payment
of freight.

The conveyance and delivery Is a condition pre-
cedent, to pasrment of freight, and must be ful-
filled.

A memorandum or stamp upon the back of a bill
of lading, is insufBcient to explain or change it
though the ship owner may have made it as an in-
timation of his mode of doing business, or that a
practice prevailed in conformity with it at the port
to which the goods were carried and delivered to
the consignee.

Any practice at San Francisco, however general
it may have become, has not the force of custom
to release its merchants from the obligation of an
ordinary bill of lading.

Argued Jan. 27, 1859, Decided Mar, 7, 1869,

APPEAL from the Circuit Court of the
United States for the districU of Califor-
nia.

The libel in this case was fiJed in the District
Court of the United States for the Northern
District of California, by the appellant, for the
recovery of the value of certain goods and mer-
chandise shipped on board of said vessel in
New York, to be transported and delivered to
the libelant at San Francisco.

The said court entered a decree dismissing
the libel, with costs. This decree having been
affirmed, on appeal, by the Circuit Court, the
libelant took an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Messrs. John Sherwood and D. Lord,

for appellant.

The principle of mercantile law, that the
consignee of the goods has a right to insist
that they shall be discharged from the vessel
and that he may examine them before he makes
himself liable for the freight, is elementary.

The carrier is not at lil^rty to insist that the
goods shall not be landed before he can call
upon the merchant for freight. Abb. Ship.,
5th Am. ed., pp., 875, 6, 7; 8d Kent's Com.,
p. 214 and the notes and authorities there
cited; Fland. Ship., p. 281. art. 281; Certain
Logsof Mahogany, 2a Sumn., 600; The Salman
Falls Manufg. Co, v. The Bark Tangier, Op.
Justice Curtis; Monthly Law Rep. for May,
1858, p. 6.

This principle is also fully established by the
Civil Law.

1 Valin, Liber 6, tit. 8, p. 665.

12 177

6:i7-5j8

BuPiiAic& Court of thb Ukitbd Btatxb.

Dkc. Tkbm,

The maBter has no right to retain the mer-
chandise on board his vessel for default of pay-
ment of the freight ; but he may, at the time of
the discharge, refuse to deliver it, or cause it to
beheld for the freight.

Opinion of Story, /., in 2 Sumn., 600; Bishop
V. Warty 3 Camp., 860; Ostrander y. Brawn,
15 Johns., 89; Uouse v. The LexingUm, 2 Leg.
Obs., 4.

Delivery cannot be perfect, until the car-
rier has discharged the goods from the vessel.
Until the carrier is thus discharged from the cus-
tody of the goods the freight is not earned.

The distinction between "discharged" and
" delivery " is clearly settled.

Ostrand&r v. Brown, 15 Johns., 39; 1 Pars.,
Cont., 673; Price v. Pow<Ul, 8 N. Y., 822.

When the consignee is ready to receive the
goods and tenders the freight, but delivery is
refused for the reason that a claim exists con-
trary to the terms of the bill of lading, the car-
rier certainly cannot be discharged from his
liability.

Stecenwn v. Hart, 4 Bing., ^1^: Powell v.
Myers, 26 Wend., 591; 1 Pars., Cont.. 666.

2. In this action, all the goods set forth in
the bill of lading were not discharged in one
day. The reason does not appear. A part
having been discharged on the 24th day of Oc-
tober, the libelant offered to pay the freight on
that part, and thus placed it in the power of
the carrier to have relieved himself from the re-
sponsibility of sending the goods to the ware-
house.

It was competent for the parties to have
agreed to this, and no greater expense or incon-
venience would have accrued or resulted. The
claimant having refused this reasonable offer,
must take the consequences resulting from his
refusal.

8. The claimant has offered testimony on the
subject of the usages or customs of San Fran-
cisco. Xo foundation for this, however, was
laid in his answer or otherwise.

Customs and usages must be pleaded. The
decree must be upon the matters alleged and
proved.

1 Chit. PI., 217; 9 East, 185; Grant corp.,
846; 7 Cranch, 889; The Rhode Island, Olcott,
511.

Such usages must l)e reasonable, certain, and
sufficiently ancient to authorize a presump-
tion that they are generally known.

U, 8. V. Buchanan, 8 How., 88; Chxe v.
Heislej/, 19 Pa., 245; 1 Smith L. C. Har. Wall.,
notes 687, 689.

The custom claimed in tlis case was opposed
to the general law of the land, and will not be
permitted to defeat rights hitherto settled and
establ ished

2. Sumn.. 569; Wadsioorth v. AUcott, 6N. Y.,
64; Turner v. Burrows, 5 Wend., 641; Caxx v.
Heisley, 19 Pa.. 245; 8 Wend., 144. 2 Sumn.,
366; 2 Wash, C. C, 10; 2 Greenl. Ev., 250.

4. According to the bill of landing, the freight
was payable on delivery, and the acts are con-
current.

2 Sumn., 603; Yates v. Bailston. 2 Moo., J.
B.,294.

The words stamped, " goods to be de-
livered at the vessel's tackles when ready for
delivery: not accountable for breakage, leak-
age or for loss or damage by fire or cnllis-

178

ion; freight payable prior to delivery, if re-

?uired; contents," do not vary the contract.
*art of them are inconsistent with the words
used in the bodv of the instrument, and other-
wise are too indefinite.

No other effect can be given to these

stamped words, than to those notices which

are intended to limit the carrier's liability, but

which generally are rejected as having no value.

1 Smith's Lead. Cos., 820; Pars., Cont., 703.

Mr. Jacob Broom, for appellee:

1. By the general mercantile law, the obli-
gation of the carrier does not extend beyond
carrving from port to port; for this he receives
his freight money. All necessary and proper
charges that accrue on the goods after arrival,
as wharfage, carta^, &c., must be paid by the
shipper. If he insist upon a delivery of all the
goods at once, before payment, such charges as
this renders necessary must be borne by him.
According to the course of the California trade,
storage is proper and necessary where all the
the goods embraced in the bill of lading are
not got out in one day; for the master is not at
liberty to leave goods exposed on a wharf, but
it is his duty to see that they are safely kept.

Abb. Ship., 7th Am. ed., 494, 495; Abb.
Ship., 491-2; Fland. Ship., 278-276; Story
Bailm.. 566; 3 Camp.. 860 ; 4 T. R,, 260.

2. There is no obligation on tlie master to
deliver part of the goods in a single bill of
lading, upon payment of part of the freight.
Abb. Ship., 493; marginal paging. 377.

8. The contract of the parties here is express,
that the consignee shall receive the goods at
" the ship's tackles," and that freight must be
paid •• prior to delivery if required." The stamp
is a part of the contract.

1 Duer Ins.. 75, 141; 4 Mass., 245; 14 Mass.,
822; 10 Pick., 223; 10 Pick., 293; 4 Met., 280;
8 Met., 226; 16 Vt., 26; these cases are cited:
Chit. Bills, 11th Am. ed., 141. note.

4. A good and valid usage was proved; and
that usage controls the general rule of mercan-
tile law, if that rule be different from what it
is contended for.

1 Duer Ins.. 255. 269. 271, 264. sec. 58; 14
Wend., 26; 17 Wend.. 207; 9 Wheat., 681, 280,
231, 1 Duer, 186; 1 Duer, 267.

5. Even if the usuage were not perfect and
universal, but partial, yet, as it was the usage
of D. L. Ross & Co., and the libelants had
notice of it by previous dealings with that
house, and tooK a bill of lading with notice
stamped on its face, it is binding on them.

1 Duer Ins.. 254, 263. Sec. 57. 286; noU, and
cases cited ; 4 Cow. & Hill's ed. of Phil. £v. ,
511.

Mr. Justice Wayne delivered the opinion
of the court:

-^ This cause involves an important commercial
principle, of daily recurrence in practice,
which does not appear to be well understood
and settled in San Francisco. Our decision
will correct the misapprehension there, in re-
gard to the delivery of merchandise by ship
owners, and the payment of freight for its
transportation.

The libelant was the owner and consignee of
goods of a value exceeding $4,000. whi<m were
shipped in good order and condition at New
York, on board of the ship Alboni, to be car

62 U.S

1858.

Brittah y. Babnabt.

627-588

ried and delivered in San Francisco, in the
same order, at a rate of freight expressed in the
bill of lading. It amounted to $247.12, in-
cluding $11.77 for primage. The bill of lad-
ing, upon its face, is in the ordinary form; but
there was a stamp upon the back of it, in these
words: " That the goods were to be delivered
at the ship's tackles when ready for delivery —
not accountable for loss or damage bj fire or
collision; freight payable prior to delivery, if
required; contents unknown." The proctors
io the cause agreed that those words were
stamped on the original bill of lading.

The ship arrived at San Francisco' Notice
of it was ^iven to the libelant by the consignee
of the ship; and he also required payment of
the freight of the goods as they should be
landed from the ship on the wharf, and that if
it was not paid, and the goods received bv four
o'clock of the day, such of them as had been
landed would be placed in a warehouse for
safe keeping, at the expense of the libelant.
The notice and the requirement are taken from
the second article of the respondent's answer to
the libel. He adds, that the libelant had refused
to pay the freight according to the terms of the
bill of lading;.

The testimony discloses what the respondent
considered to be its terms, and the refusal of
the libelant to acquiesce in his interpretation.

The goods were landed from the ship in
parcels, on different days, from the 24lh to the
27ih of October, inclusive. The clerk of the
libelant attended on each day to receive them,
aad in conformity to the notice which had been
given, he offered to pay the freight of such
of the merchandise as had been landed. The
consignee of the ship refused to receive it, or
to deliver such goods, claiming that he had a
right to demand the freight upon the whole
shipment, when he was only ready to deliver
a part of it. In the assertion of this right (cer-
tainly not in conformity with the notice he
had given to the libelant) the respondent from
day to day warehoused the goods.

'rhe libelant did all he was bound to do un-
der the notice which had been given to him.
He could not have done more. The respond-
ent's refusal to deliver the parcels as they were
landed cannot be justified, under the notice he
had given, by any delay there may have been
in* the delivery, either from the necessity of
weighing or measuring them, or from the claim
made by him to have the freight paid upon
the whole shipment before he would deliver a
(Mirt of it. He had taken his course, and the
libelant acquiesced in it, by offering to pay the
freight on each parcel as it was put on the
wharf, though not bound to do so by the com-
mercial law. The respondent's refusal has no
justification, either In law, nor can it be vindi-
cated by any evidence in the cause.

We do not mean to say that the libelant l^ad
a right to take the parcels on the days they
were landed, without the payment of a pro
rata freight; but where a shipmaster has a
larger shipment under one bill of lading than
be can land in the business hours of a day, as
he has the control of unloading the cargo, he
must take care not to do it in such quantities
that he may not be able to have the pro rata
freight ascertained in the only way in which it
can be done. UotU it shall be done, he is not

See 21 How,

in readiness to deliver such part, or to demand
the freight which may be due upon it. Goods
so landed will be under his care and responsi-
bility, without additional expense to the con-
signee of them, until they shall be ready for
delivery.

Odinarily. no difficulty arises between the
ship's owner and the consignee of the goods;
their interest, convenience, and responsibilities,
usually suggest to them some arrangement for
the freight beforehand, by which ^oods landed
from day to day may be taken without delay
by the consignee of them. In this instance,
however, no opportunity was given to the libel-
ant to make such an arrangement, the consignee
of the ship having absolutely demanded the
whole freight of the shipment as the condition
for the delivery of any part of it.

On the fourth day, when all of the libelant's
shipment had been landed, and before they
were sent to. a warehouse, he demanded from
the consignee of the ship a delivery order for
all the merchandise specified in the bill of lad-
ing, tendering at the sametime.in gold.the whole
freight due. The delivery order was refused,
the answer lieing that the goods were subject,
in addition to the freight, to a charge for stor-
age and cartage. The last was also warehoused
by the respondent, as those of the three pre-
vious landings had been.

The foregoing is a sufficient statement of the
facts and evidence in this case for the decision
of it. It will not be necessary to notice again
the attendance of the clerk of the libelant on
days of landing, to receive the goods and pay
the freight,

The word freight, when not used in a sense
to imply the burden or loading of the ship, or
the cargo which she has on board, Is the hire
agreed upon between the owner and master for
the carriage of goods from one port or place to
another. That hire, without a different stipu-
lation by the parties, is only payable when the
merchandise is in readiness to be delivered to
the person having the right to receive it. Then
the freight must l)e paid before an actual deliv-
ery can be called for. In other words, the rule is,
in the absence of any agreement to the contrary
of it. that freight, under an ordinary bill of
lading, is only demandable by the owner, mas-
ter, or consignee of the ship, when they are
ready to deliver the goods in the like good order
as they were when they were received on board
of the ship. Such is the general rule. Neither
party can require from the other that the mer-
chandise shipped under one bill of lading shall
be put up into parcels for delivery, or for the
payment of freight. They may do so by stipu-
lation in the bill of lading, or by subsequent
agreement, for either of the purposes just men-
tioned. The master is bound to deliver the
goods in a reasonable time. What may be so,
depends upon the facilities there may be for
the discharge of the cargo at the port of deliv-
ery, and the impediments in the way of it.
When the shipment is large, or, from the mas-
ter's storage or it, it cannot be landed in a day,
if he leaves a part of it, his lien upon the
whole gives tiim the power to ask from the
consignee of the merchandise a satisfactory
security for the payment of the entire freight
as call^ for by the bill of lading. But a security
or arrangement is all that he can ask. He may

179

527-538

SXTFRBHB OOUBT OF THB UkITBD BtATBS.

Dbc. Tbrm,

not demand that the whole freight of the ship-
ment should be paid before the consignee has
had the opportunity to examine his goods, to
see if the obligations of the bill of lading
have been fulfilled by the ship-owner. Nor is
the ship bound to land an entire shipment in a
day, for the proper storage of the goods is the
master's care, and he may do it in such a way
as may be most advantageous to the ship,
taking care that it shall not be done to the
injury of the goods, or in such a manner as to
produce unreasonable delay in the delivery
of them. And when landings of the same
shipment are made on different days, if the
shipper disregards the notice given to him that
such will be the case, and he shall not be pres-
ent to receive the goods, and has not made an
arrangement to secure the payment of the
freight, they may be stored for safe keeping at
the consignee's expense and risk, in the i£ip-
owner's name, to preserve his. lien for the
freight. This course was not pursued in this
case by the consignee of the ship. He attempts
to justify what he did upon the allegation in his
answer to the libel, that the bill of lading con-
tained a stipulation, that the freight to be
earned on the whole shipment was payable when
a portion of it had been landed.

The bill of lading, upon the face of it, is the
ordinary one between parties for the transpor-
tation of merchandise. The merchandise men-
tioned in it was to be carried from New York
to San Francisco at fixed rates for freight, with
primage and average accustomed. There is no
other stipulation or condition in it than the un-
dertaking for carrying the goods, and that of
the shipper to pay the ireight. But the consignee
of the ship claimed that the stamp upon the
back of the bill of lading was equivalent to one.
So his counsel contended in argument. This
stamp was in red ink, and was put on the bill
of lading by the ship's owner. We Will sup-
pose it had been made by Captain Bamaby be-
fore he si^ed the bill of lading. But it was
not signed by the parties, nor is there any proof
that it was ever recognized by the shipper as a
part of his contnxt. Nothing seems to have
been said about it when the bill of lading was
signed, nor until it was claimed in San Fran-
cisco to be a part of it. It no doubt has a re-
lation to the subject matter of the bill of lading,
and was put there by Captain Barnaby for that
purpose ; but unless it received the assent of the
shipper, it cannot vary the obligations of the
contract so as to authorize a demand for freight
before the goods were ready for delivery. The
question we are now considering is not what
effect miffht be given to such a stamp upon a
bill of lading by proof that the parties, at the
time it was made, adopted it as a stipulation or
agreement that the shipper was to pay the
whole freight upon his shipment when a por-
tion of it had been landed from the ship; but
the question is, whether such a stamp, of it-
self, upon a bill of lading, can change the well-
known commercial rule In respect to the deliv-
ery of goods and the payment of freight. It is
that which is asked in this case by the respond-
ent. There is not a word of proof that the
shippers in New York, or the consignee in San
Francisco, ever regarded it in such a light;
none that Captain Barnaby considered the
stamp to be a part of the bill of hiding assented

180

to by the shipper, until it was asserted by him
to be so, in his answer, after the consignee of
the ship had attempted to enforce it, as a part
of the contract, upon the libelant. It was prop-
erly resisted. The personal obligation to pay
freight rests upon a bill of lading, when one
has Deen given, and the payment of it is made
a condition of delivery. The general rule is,
that the delivery of the goods at the place of
destination, according to the bill of lading, is
necessary to entitle the ship to freight. The
conveyance apd delivery is a condition preced-
ent, and must be fulfilled. 8 Kent. 218.

Such a stamp cannot be considered a stipula-
tion, according to the legal meaning of that
word. All writers upon commercial law use
the word stipulation to denote a particular en-
^gement. which may be insisted upon, before
It can control the general operation of law, or
vary a contract. Such stipulations are hot un-
common between ship owners and shippers of
merchandise, in charter-parties and in bills of
lading. But when done in either, they must be
made In words sufficiently intelligible to indi-
cate an agreement that the operation of the law
merchant, in respect to those instruments, is
not to prevail ; and the stipulation must be in
writing, and be signed by the parties, before it
can be received as an auxiliary to explain how
the contract is to be performed. A memoran-
dum or stamp upon the back of a bill of lading
is insufficient for such a purpose, though the
ship owner may have made it as an intimation
of his mode of doing business, or that a practice
prevailed in conformity with it at the port to
which the goods were to be carried and deliv-
ered to a consignee. An attempt was made te
assimilate the stamp in this case to a memo-
randum on a policy of insurance. In the first
place, as loose, indefinite, and dangerous, as
some of the decisions in the English and Ameri-
can reports are, concerning memorandums of
that kind, no case can be found in either, in
which effect has been given to any memoran-
dum which was not on the face or in the margin
of the policy. But if such a case can be found,
we should not feel ourselves at liberty to extend
it to a bill of lading for the transportation of
merchandise.

Those instruments of commerce are construed
by very different principles and usages. The
cases cited by counsel to show that the memo-
randums upon the face of the one were analo-
gous to a stamp put upon a bill of lading, do
not apply. Neither do the texts from Duer,
75, 141, do so. The rule in respect to policies
of insurance is, that it is not material whether
the written words of a policy are inserted in the
body of the instrument, or written on its face
or on the margin of it; but they must be there
in fact; must have been written before the exe-
cution of it, or by mutual consent after the
execution, and before the commencement of the
risk. Thus they then form parts of the con-
tract, it having been determined, from the
usages of insurances, that the parties contracted
in reference to them, and that the signature and
acceptance of the policy was proof that they
had done so. All of the other cases cited are
agreements, varying, in some particulars, the
payment of notes of hand, entered into contem-
poraneously with the execution of the notes,
and which, by proofs, were shown to have

62 U. S.

1868.

Eastoit t. Salibbubt.

426^33

been meant by the parties to be a part of them.
Ad Attempt was also made to show ^at a prac-
tice prevailed in San Francisco whicn eave an
effect to the stamp upon the bill of lading, so
as to control the general rules of commercial
law in respect to the payment of freight, and
the delivery of merchandise from ships. What-
ever may ble the practice there, or however gen-
eial it may be, it is too recent in its use to make
an exception, on the ground that it was a cus-
tom. The trade of San Francisco is already
large; every day develops its resources and the
advantages of its position for commerce. No
doubt it has not as yet those facilities for the
landing of merchandise and loading of ships
which our older ports have; but that will not
give to anv practice there, however general it
may have become, the force of custom to re-
lease its merchants from the obligation of an
ordinary bill of lading. If inconveniences ex-
ist in the particular just mentioned, it will be
best for the merchants of San Francisco, and
those with whom they deal in other parts of
the world, that the contract of a bill of lading
should have its fixed meaning and obligation,
and that it is only alterable by express stipula-
tions made in the way which has been already
stated in the decision.

The testimony, however, in this case shows
a very uncertain opinion and a fluctuating prac-
tice in San Francisco upon the subject of the
delivery of shipments of goods and the pay-
ment 01 freight; that such a demand as was
made upon the libelant to pay his freight upon
all the merchandise mentioned in his bill of
lading when only a portion of it had been
landed upon the wharf, had only been ac-
quiesced in by many of the merchants there to
avoid trouble, to .get early possession of their
importations, and from an unwillingness to be
troubled with lawsuits. There are also differ-
ences of opinion as to the efficacy of such a
stamp as there was upon the bill of lading in
this case, many of them, from their experience
and knowledge of trade elsewhere, having a
more correct apprehension of the commercial
law than the reverse of it, which was attempted
to be imposed upon the libelant. Nor can any
previous assent to the usage of a particular
firm engaged in the shipping business, though
acquiesced in by one who had had other dc^-
ings with it, be Interpreted into an agreement
so as to deprive him of a right under an ordi-
najnr bill of ladmg subsequently made.

The view which we have ifiven of this case
determines the whole controversy. It compre-
hends every point raised by the record, or made
in the argument of it. The respondent having
in the first instance demanded the entire freight
called for by the bill of lading, without any
right to do so, and having refused to deliver
the merchandise belonging to the libelant when
the last parcel of it was landed on the wharf,
and when the freight due upon the whole of it
was tendered, on the ground that there were
due charges for cartage and storage, did so
^iihout color of law for such refusal. Our
judgment is, that those charges must be paid
b^ the respondent, and we shall reverse the de-
cision of the court below, and direct a mandate
to be sent to the Circuit Court to order a de-
cree for the libelant for the sum of |4,S67.45,

Bee 21 How.

with interest from the 2d day of November,
1855. 9th Vol. Stat, at L., 181.

The sum mentioned is proved to have been
the value of the libelant's merchandise after
freight and primage had been deducted, when
it was wron^ully detained by the respondent.
The respondent will also be charged with the
costs which have been incurred in the prose-
cution of this libel.

Mr. Justice Daniel dissents to the decision
in this case, upon the grounds that the Court
of Admiralty in this country, as in England,
can take no cognizance of charter-parties or
bills of lading, and because this case was
within the plain jurisdiction of the courts of
the State of California, either at common law
or in equity.

ated-5 Wall.. 496 ; 1 Cliff., 404.

ALTON R. E ASTON, Plff. in Er.,

THOMAS L. SALISBURY.

(See 8. C. 21 How., 426-432.)

New Madrid certificate — located toithin one year
— estoppel by deed.

A holder of a New Madrid certlfloate bad a right
to locate it on any of the public lands which had
been authorized to be sold.

All New Madrid warrants not located within one
year from the 28th of April, 1822, are null and void.

Where a conveyance was made by one not having
the leeral title, but afterwards under the Act of 183S,
the report of the commissioners was confirmed to
Bell and his lenil representatives, the \egA\ title
vested In him ; it inured, by way of estoppel to his
arrantee, and those who claim by deed under him.

Argued Feb. 18, 1859. Decided Ma/r. 7, 1869.

IN ERROR to the Supreme Court of the State
of Missouri.

This case arose upon a petition filed in the St.
Louis Court of Common Fleas, by the plaintiff
in error, to settle the title to certain lots.

The case was finally submitted to the court on
an agreed statement, which is set out in full in
the opinion of this court. The court having
entered a judgment in favor of the defendant,
the plaintiff took an appeal to the Supreme
Court of the State of Missouri, which court af-
firmed the judgment of the court below ; where-
upon the plaintiff sued out this writ of error.

Mr. H. R. Gamble and C. Gibson, for

plaintiff in error:

1. The title under which the plaintiff claims,
was good against the United States.

Les Bote v. BrameU, 4 How., 449; Stoddard
V. Chambere, 2 How., 284; Mills v. Stoddard, 8
How., 864; Menard v. Massej/y 8 How., 810;
Delauriere v. Emison, 16 How., 525; Hoffnagle
V. Anderson, 7 Wheat., 212.

The survey made by the Surveyor- General,
its return by him to the Recorder of land titles,
the issuing of a patent certificate by that oflicer,
and of a patent by the President of the United
States, were all acts done by the proper offi-
cers of the United States; and the question is
now for the first time raised in this court, as to

181

426-4S3

SuFBSKB Court ov tbr Uriubd Statbs.

Dec. TrUic,

the effect of these acts as against the United
States.

This question was not only not decided in Mills
v. Stoddard, or Stoddard ▼. Chambers, but the
point was not involved in those cases, nor raised
by the counsel. On the contrary, in Stoddard
V. CJiambers, 2 How., 295, the inquirv was, as
stated by this court, ''wliether theaefendant
(Chambers) had any title as against the plaint-
iffs."

2. The land was subject to be disposed of by
the government during the existence of the bar,
from 1829 to 1882, to any person or m any
manner, and was then open to entry or location.

And the plaintiff had the right during this
time to perfect his title. But had the plaintiff
applied for a patent during the bar, he would
have been properly answered by the officers of
the government, Uiat two patents could never
issue by the government for the same land,
under the same title, and to the same person;
and that, as his patent passed any title the gov-
ernment might have, a second patent could add
no strength to his claim.

This case is distingulBhable from the one of
MiUs V. Stoddard in this, that there Mills' title
was not complete until after the revival of the
reservation ; he had a mere equity. Here the
title was complete before the passage of the
Act of 1832.

The patent was not void as against the gov-
ernment. It continued to claim the land in
New Madrid, in lieu of which this patent issued.
In all the cases decided in this court on this
subject, it is held Uiat if the patent had issued
dunng the bar, it would have passed the title.
Yet, where does the President derive his au-
thority to issue a patent upon proceedings utterly
void, even as against the government; and if he
had any such authority from 1829 to 1882, he
surely possessed it in 1827, and we invoke it in
this case.

Menard v. Massey, 8 How. , 810.

A patent merges all former proceedings.

BagneU v. Brodtrick, 13 Pet., 486.

A bona fide transfer of the title in fee to the
property by the President, for a valuable con^
sideration, was a sale within the saving clause
of the Act of 1836. What is more reasonable
or just than to suppose that Congress did not
intend that when a title had been completed for
a valuable consideration moving to the govern-
ment, it should not be defeated in favor of
claimants, who had very doubtful if any claim
at all against the government. This does not
conflict with Stodaard v. Chambers, or MUls v.
Stoddard; for there the confirmation related
back to the passage of the Act of 1832, and
Peltier's patent was not then issued. The fee
was still m the government.

Mr, T. Ewiiiff, for the defendant in error:

The New Madrid certificate was a gift. The
Spanish succession was a right which the United
States was bound to respect, both by the treaty
stipulation and the law of nations.

Delasms v. 271 A, 9 Pet., 133.

The plaintiff has, therefore, no equity as
against the defendant, or as against the United
States. In order to recover, ne must show a
title according to law. He must receive the
gift subject to all the restrictions imposed by the
donor.

188

The case is well presented in the opinion of
the Suprenie Court of Missouri (from which the
counsel quoted).

The location of their warrant, being against
law, was void. In equivalent words, the war-
rant was unlocated, and in that condition it
was an unlocated warrant on the 26th of April,
1828, and on that day all unlocated warrants
were, by the Act of Congress of April 26, 1822,
ch. 40, declared **null and void." There could
be no location of them thereafter. The atten-
tion of the court was not called to this pro-
vision of the Act of 1822, in the case of Stod-
dard v. Chambers.

2. The location made on Nov. 16, 1816,
being on forbidden ground, was void.

The location being void, was as if it had
never been. Having been issued while the sav-
ing in favor of the Spanish title, which is an
implied prohibition, was in force, the patent as
well as the location, was void, because " Issued
against law. "

2 How., 818; 8 How., 882.

The patent then, which was void ab orfgine,
had not become valid on the 28th of May, 1830,
when the first series of statutes saving the Span-
ish claims expired; for a void patent has no
more the faculty of creating itself, making itself
out of nothing, than a void location. The
United States alone can pass the title to its lands.
It requires the concurrent ^ctof the Le^lative
and £)xecutive Departments. The Legislature
forbade the transfer of this title upon this war-
rant of location. The Executive issued a patent
— the act was unauthorized and void. It was
not the patent of the United States, for it was
issued without authority of law,

9 Cranch, 99; 2 How., 318; 8 How.. 332.

Mr. Justice McLeaA delivered the opinion
of the court:

This is a writ of error to the Supreme Court
of the State of Missouri.

The parties agreed as to the facts in this case,
in order that the points of law might be ruled
by the court.

On the 9th of July, 1811, there were con-
firmed to James Smith, by the commissioners
for the adjustment of titles to land in the Ter-
ritory of Missouri, lots nine and ten (9 and 10),
containing two arpents of land, in the Village
of Little Prairie, in the County of New Mad-
rid, State of Missouri. Afterwards these lots,
while still owned by said Smith, were material-
ly injured by earthquakes, and proof thereof
was made before the Recorder of Land Titles at
St. Louis, on the 16lh of November, 1815;
whereupon, there was issued by said recorder,
to said James Smith, a certificate of new loca-
tion (commonly called a New Madrid certifi-
cate), numbered 159. On the 22d of October,
1816, said Smith and wife conveyed to Rufus
Easton the said two arpents in Little Prairie,
and assigned to him the ri^ht to locate other
lands under said certificate m lieu of the land
so injured, and also conveyed to said Easton
the land that might be located by means of said
certificate. On the 16th of November, 1816,
Easton gave notice to the Surveyor-Gteneral of
said Territory of Missouri of the location of
said certificate on a tract of land about two
miles west of the City of St. Louis, and de-

68 U. 8.

1858.

Eastok V, Salisbuky.

426-48-2

manded a survey thcireof. In March. 1818, a
survey was made, by direction of the Surveyor-
General, in pursuance of said selection, and was
duly returned and approved bv said Surveyor-
Cteneral; said survey is numbered 2,491. and
Uie land thereby designated embraces the land
in controversy, and is within St. Lpuis Town-
ship, in St. Louis County, Missouri. By virtue
of the premises, Easton held said land, claiming
the same until 1826, when he conveyed the
same to William Kussell. On the 28th day of
May, 1827, the United States issued a patent on
saia location for said land to James Smith or
his legal representatives. On the 19th of Jan-
uary, 1839, William assigned and conveyed all
his interest in said land to J. G. Easton, who,
on the 18th of March, 1845, conveyed and as-
signed the same to plaintiff. Defendant is in
possession of the land described in the petitiout
and the same is within the boundaries indicated
by said survey and patent.

On the 20th of tJanuair, 1800. a concession
was made by the Spanish Lieutenant-Governor,
to one Mordecai ^11, of three hundred and fif-
ty arpents of land, including the premises in
controversy. The representatives of Mordecai
Bell, on the 29th of June, 1808, presented the
claim for said land, together with a descriptive
plat of survey thereof, to the board of commis
sioners for the adjustment of land titles in the
Territorv of Missouri. The documents show-
ing said claim, and the derivative title from
Mordecai Bell, were duly recorded in 1808 by
the Recorder of Land Titles for the Territory of
Missouri. And on the 4th day of July. 1836,
the United States confirmed said claim, accord-
ing to said plat of survey, to the legal repre-
sentative of M. Bell; a survey of said confirma-
tion was made by authority of the United

States in , and is numbered 3,026. Said

survey embraces the land in dispute: and all
the title of the confirmee, by the Act or 1836, is
in the defendant. The survey numbered 2,491 ,
and also the patent dated 28th of May, 1827.
are in due form of law ; but defendant docs not
admit the authority of the ofilcers of the UnitcKl
States to make the one or issue the other, nor
that the same were made or issued under any
law. It is admitted that the land in controver-
sy is worth more than $2,000; that if the court
should be of opinion that the plaintiff is entitle
to recover, it is agreed that the damages shall
be fixed at one cent, and the monthly value of
the premises at $1. Either party is at liberty
to turn this case into a bill of exceptions, and
thereon prosecute a writ of error, or take an
appeal to the >Supreme Court of the State of
Missouri, or of the United States. It is admit-
ted that survey No. 3,026 was made under the
authority of the United States, but the plaintiff
may dispute the power of the United States as
regards both the confirmation of ltj36 and the
survey No. 8,026.

It is admitted that the plaintiff had, at the
commencement of this suit, all the title that
was invested in said James Smith, or his repre-
sentatives, by the New Madrid location and
patent above mentioned.

It will be observed that this controversy aris
es between a New Madrid title and a Spanish
concession. A holder of a New Madrid certi-
ficate had a rieht to locate it on any of the pub-
lic lands which had been authorizeid to he sold.

Bee 81 H«w.

This claim came into the hands of Alton H.
Easton, the plaintiff in error. It was surveyed
in March. 1818, and the 28th of May, 1827, the
United States Issued a patent to James Smith,
or his legal representatives.

Prom 1808 to the 26th of May, 1829, reserva-
tions were made from time to time to satisfy
certain claims, but from that time they ceased,
until renewed by the Act of the 9th of July,
1832. During this period, it is understood by
the plaintiff in error, the " land in question was
subject to be disposed of to any person, or in
any manner, ana was then open to entry or lo-
cation. And it is urged that the plaintiff had
the right during this time to perfect his title."

The President of the United States has no
right to issue patents for land, the sale of which
is not authorized by law. In the case of Stod-
dard V. Chambern, 2 How., 818, it is said, *'The
location of Chambers was made on lands not
liable to be thus appropriated, but expressly
reserved ; and this was the case when his patent
was issued." Had the entry been made or the
patent issued after the 26th of May, 1829, when
the reservation ceased, and before it was revived
by the Act of 1832, the title of the defendant
could not be contested.

Nothing was done to give Easton's title valid-
ity, from the cessation of the reservation, in
1829, until its revival, in 1832. His entry was
made in 1818, and on the 28th of May, 1827, his
patent was issued. The land located and pat-
ented, having been reserved, was not liable to
be appropriated by his patent. Whether the
withdrawal of the patent might have been pro-
cured, or a new one instituted, it is not neces-
sary to inquire. No such attempt was made.

But it seems by the Act of the 26th of April,
1822, it was provided that all warrants under
the New Madrid Act of the 15th of February,
1815,which shall not be located within one year,
shall be held null and void. This law is deci-
sive upon this point; all New Madrid warrants
not located within one year from the 26th of
April, 1822, are null and void. Smith's or
Easton's certificate for the New Madrid claim
was void, and also his patent when issued, un-
der the paramount claim of Bell, whose title
was confirmed by the Act of the 4th of July,
1836. Bell made the conveyance to Mackey,
not having the legal title; but when, under the
Act of 1836, the report of the commissioners
was confirmed to Bell and his legal representa-
tives, the legal title vested in him and inured,
by way of estoppel, to the ^antee and those
who claim by deed under him. Stoddard v.
Ohambers, 2 How., 317.

There was no period from the entry and pat-
ent of the New Madrid claim in which that
claim was valid. The location was not only
voidable, but it was absolutely void, as it was
made on land subject to a prior right. And
under the Act of ]»22, all New Madrid warrants
not located within a year from that date, were
declared to be void.

Whether we look at the confirmatory Act of
1836, which vested the title in the confirmee,
or to the New Madrid title asserted against it,
it is clear that t?te New Madrid title is witlunit
validUt/, and UuU the fee is wsted in the grantee
of BeU.

An'g-23 Mo., 100. .

Clted-19 WaU., 68S, 688; 88 U. S., 216 ; 2 DiU., 42-44.

188

441-445

SUPKBMB COTTBT OF THE UNITED StATBS.

Dec. Term,

SAMUEL PEARCE, Plff. in Er.,

fl.

THE MADISON AND INDIANAPOLIS
RAILROAD COMPANY AND THE PERU
AND INDLA.NAP0LI8 RAILROAD COM-
PANT.

(Bees, C, 28 How., 441-4i6J

Pmoer of eoTisolidated railroad eorporatian — not
to buy steamlHxit— -persons dealing itith, must
take notice of powers — indorsee must.

Where separate Indiana railroad oorporationB,
created to oonstruot distinct lines of railroad, were
consolidated by a^^reement, and the president of
the consolidateia company gave notes in its name in
payment for a steamboat, to run in connection
with the railroads ; the right^ duties and obliga-
tions of the separate corporations beingr defined in
the laws of Indiana, under which they were organ-
ized. Held, that there was no authority of law to
consolidate these corporations, and to place .both
under the same management or to subject the
capital of the one to answer for the liabilities of the
otner.

Also held,'that the managers of these corpora-
tions had no power to establish a steamboat line to
run in connection with the railroads.

Persons dealing with the managers of a corpora^
tion must take notice of the limitations Imposed
upon their authority by the Act of Incorporation.

In suit on notes by an indorsee ; held, that the
corporation had not the capacity to make the con-
tract, in the fulfillment of which they were exe-
cuted.

Submitted Ma/r, U 1869, ^

1869.

Decided Ma/r, 11,

IN ERROR to the Circuit Court of the United
States for the District of Indiana.

This was an action of assumpsit brought in
the court below, bj the appellant, as assignee
of William McClain, on five promissory notes,
for $1,000 each.

The defendants demurred to each of the
special counts contained in the declaration.
The court below sustained the demurrers, and
entered a final judgment for the defendants;
whereupon the plaintiff took an appeal to ^this
court.

A further statement of the case appears in
the opinion of the court^

Mestrs. Charles Fox and O. H. Smith,
for the plaintiff in error:

The contract for the purchase of the boat,
after it was executed by the delivery of the
boat to the appellees, was binding upon them,
and it does not lie with them to take advantage
of their own wrons, by rescinding their con-
tract and keeping me boat.

16 Eng. Law £ Eq., 596.

But even if the contract was void, the boat
remained in the hands of the appellees, the
property of the payee of these notes, and he
could have maintained replevin or detinue for
the property before it was sold by the appellees,
and converted to their own use.

1 Chit. PI, title Replevin, p. 162, ed. 1855.

If the possession of the boat was obtained
by the appellees under a void contract, and
thev sold the boat and converted the proceeds
to their own use, the pavee of the notes could
have maintained an action of trover and con-
version against the appellees for his damages.

1 Chit, PL, title Trover, p. 146, ed. iSK5;
16 East. 6; 1 A. & E., 526; 2 Wend., 452; 7
Conn., 487; 2 McLean, 145; 9 Mass., 297; 2
Aik., 256.

184

After the boat was sold, it was competent to
waive the tort and bring an action of inddntatus
assumpsit,

6 lick.. 285; 5 Blackf., 14; 1 Taunt., 112;
Bam. & C„ 94; 4 Phil. Ev., 110; 8 N. H., 889;
1 Chit., pi, title of the Election of Actions, ed.
1855. p. 207.

The objection urged in the Circuit Court
was, that as the notes were executed by the
consolidated Company, they cannot be sued
jointly upon them, since the consolidation was
dissolved. The answer to this is:

1. That they cannot be send separate! v, with-
out hazarding a plea in abatement for the non-
joinder of the other joint contractor.

Chit, pi., ed. 1855, p. 452, notes and author-
ities.

2. The consolidation was formed by the ap-
pellees; the notes were given by them jointly;
the dissolution was of the consofidatian and not
of the incorporation of the appellees, and could
not discharge their joint liability.

17 Jurist, 1108; 6 Eng. R. R. Cas.. 177; 7
Eng. L. & Eq.. 124; 1 Eng. R. R. Cas.. 68.

These Companies stood after the dissolution
of the consolidation, upon the same principle,
as to their debts, that the individuals composing
a mercantile firm do after the dissolution of the
partnership, as to the firm debts.

Ang. & A. Corp., 648, 644, 648; 1 Eng. R.
R. Cas., 58, 68; UEnff. L. <& Eq., 9; 19 Eng.
L. &Eq., 87; 1 Am. Rw. Cas., 96.

Mr, T. A. Hendricks for defendants in
error.

Mr, Justice Campbell delivered the opinion
of the court:

The defendants are separate Corporations, ex-
isting under the laws of Indiana, and were
created to construct distinct lines of railroad
that connect at Indianapolis, in that State. The
plaintiff is the assignee of five promissory notes,
that were executea under conditions set forth
in the declaration, and of which he had notice.
The two Corporations (defendants), some time
before the date of the notes, were consolidated
bv aj^reement, and assumed the name of the
Madison, Indianapolis and Peru Railroad Com-
any, and under that name, and under a com-
mon board of management, conducted the
business of.both lines of road.

While the business of the two Corporations
was thus directed and managed, the president
of the consolidated Company gave these notes
In its name in payment for a steamboat, which
was to be employed on the Ohio River, to run
in connection with the railroads. After the
execution of the notes, and the ^acquisition of
the boat, this relation between the Corporations
was dissolved by due course of law, and, at the
commencement of the suit, each Corporation
was managing its own affairs. The plaintiff
claims that the two Corporations are jointly
bound for the payment of the notes, but the
circuit court sustained a demurrer to the dec-
laration.

The rights, duties and obligations of the de-
fendants are defined in the Acts of the Legisla-
ture of Indiana, under which they were organ-
ized, and reference must be had to these, to as-
certain the validity of their contracts. They
empower the defendants respectively to do all
that was necessary to construct and put in

68 U. S.

1858.

UNinn) States v. Fossatt.

446, i46

operation a railroad between the cities which
are named in the acts of incorporation. There
was no authority of law to consolidate these
Corporations, and to place both under the same
management, or to sublect the capital of the
one to answer for the liabilities oi the other;
and so the courts of Indiana have determined.
But in addition to that act of illegality, the
managers of these Corporations established a
steamooat line to run in connection with the
railroads, and thereby diverted their capital
from the objects contemplated by their charters,
and exposed it to perils,for which they afforded
no sanction. Now, persons dealing with the
managers of a corporation must take notice of
the limitations imposed upon their authority by
the act of incorporation. Their powers are
conceded in consideration of the advantage the
public is to receive from their discreet and in-
telligent employment, and the public have an in-
terest that neither the managers nor stockhold-
ers of the corporation shall transcend their
authority. In McGregor v. The OffleicU Man-
ager of the DecU and Dover Railway Ci?.,16 Eng.
L. & Eq., 180, it was considered that a railway
company incorporated by Act of Parliament was
bound to apply all the funds of the company
for the purposes directed and provided for by
the Act, and for no other purpose whatever, and
that a contract to do something beyond these
was a contract to do an illegal act, the illegal-
ity of which, appearing by the provisions of a
public Act of Parliament, must be taken to be
known to the whole world. In (Heman v.
Tfu Eastern Counties Railway Co,, 10 Beav., 1,
Lord Langdale, at the suit of a shar^older, re-
strained the Corporation from using its funds
to establish a steam communication between
the terminus of the road (Harwich) and the
northern ports of Europe. The directors of
the Company vindicated the appropriation as
beneficial to the Company, and similar arrange-
ments were not unusual among railway com-
panies. Lord Langdale said: "Ample powers
are given for the purpose of constructing and
maintaining the railway, and for doing all
those things required for its proper use when
made. But I apprehend that it has nowhere
been stated that a railway company, as such,
has power to enter into all sorts of otlier trans-
actions. Indeed, it has been very properly
admitted that railway companies have no right
to enter into new trades or businesses not
pointed out by the Acts. But it has been con-
tended that they have a right to pledge, with-
out limit, the funds of the company for the en-
couragement of other transactions, however,
various and extensive, provided that the object
of that liability is to increase the trafflc upon
the railway, and thereby to increase the profit
to the shareholders.

There is, however, no authority for any-
thing of that kind. It has been stated that
these things, to a small extent, have been fre-
quently done since the establishment of rail-
ways; but unless the acts so done can be proved
to be in conformity with the powers given by
the special Acts of Parliament, under which
th'^se acts are done, they furnish no authority
whatever. In The East Arw. Railway Com-
pany y. The Eastern Counties Railway Company,
11 C. B. (78 Eng.), 808, the court say the
statute incorporating the defendants' Company

See 81 How.

gives no authority respecting the bills in Parlia-
ment promoted by tne plaintiffs, and we are
therefore bound to say that any contract relat-
ing to such bills is not justified by the Act of
Parliament, is not within the scope of the au-
thority of the Company as a Corporation, and is
therefore void."

We have selected these cases to illustrate the
principle upon which the dedsion of this case
has b^n made. It is not a new principle in the
jurisprudence of this court. It was declared in
the early case of Head v. Providence Insurance
Company, 2 Cranch, 127, and has been reaffirmed
in a number of others that followed it. Bank
of Augusta v. Sarle, 18 Pet., 519; Perriney,
Ches. db Dei. Can. Co., 9 How., 172.

It is contended, that because the steamboat
was delivered to the defendants, and has been
converted to their use, they are responsible. It
is enough to say, in reply to this, that the

E lain tiff was not the owner of the boat, nor does
e claim under an assignment of the owner's
interest. His suit is instituted on the note, as
an indorsee; and the only question is, had the
Corporation the capacity to make the contract,
in the fulfillment of which they were executed?
The opinion of the court is, that it was a de-
parture from the business of the Corporation,
and that their officers exceeded their authority.

Judgment affirmed.

THE UNITED STATES, Appts.,

CHARLES POSSATT .

(See S. C, 21 How., 446, 446.)

Practice— order of eases — ftfter mandate to court
below, no appeal tUl final decision.

No oase oan be taken up out of its order on the
docket, where private interests only are con-
cerned.

The only cases where this rule does not apply,
are those in which the question in dispute will em-
barrass the Gk)vernment while it remains unset-
tled.

When a case is sent to the court below by a man-
date from this court, no appeal will lie ftom any
order or decision of the court, until it has passed
its final decree in the case.

Argued Feb. U, 1869. Decided Feb. 28, 1869.

APPEAL from the District Court of the Unit-
ed Stotes for the Northern District of CaU-
fomia.

The case appears in the opinions of the
court.

See, also, 61 U. S. (30 How.), 418, for a
report of this case, when before this court at
the last term.

Messrs. J. S. Blaek« Atty-Gten., and R,
Johnaon^ for appellants.

Messrs. J. A. Bayard* Geo. M. Badmr,
J. M* CarUale and Nelson* for appellee.

On a motion to order this case for argument
on a day certain.

Mr. Chitf Justice Taney delivered the opin-
ion of the court:
According to the rules and practice of the

NOTB.— If?iat to a **fifud decree** or judament of
staifi or other court from which appeal lies. See
noie to Gibbons t. Ogden, 19 U. S. (6 wheat.), 448.

186

44ft-451

SupRBMB Court of the Uwited States.

Dec. Term.

court, no case can be taken up out of its order
on the docket, where private interests only are
concerned. The only cases in which they will
depart from this rule,' are those where the ques-
tion in dispute will embarrass the operations of
the Oovernmept while it remains unsettled.
But when a case is sent to the court below by a
mandate from this court, no appeal will lie
from any order or decision of the court until it
has passed its final decree in the case. And if
the court does not proceed to execute the man
date, or disobeys and mistakes its meaning, the
party aggrieved may, by motion for a manda-
mvs, at any time, bring the errors or omissions
of the inferior court before this court for cor-
rection. Upon looking into the record in the
case of United States v. Fasmtt, the court doubt
whether there has been a final decision under
the mandate, and whether the present appeal
ought not to be dismissed on that ground. If
there is no final decree, the proceedings of the
court below cannot be interrupted by an appeal
from interlocutory proceedings.

The court, therefore, desire to hear the coun-
sel upon the question, whether the decree in
question is final, upon motion to dismiss, and
will hear the argument on Monday, March 7th.

S. C— 20 How., 418.

Cited-28 How., 442, GOO: 1 Wall., 106; 2 Wall., 6«9,
448, 704, 706, 713, 7:i4: 8 WaU., 842 ; 08 U. 8., 2 ; 1 aawy.,
662,684.689.

See following case.

THE UNITED STATES, Appts.,

CHARLES FOSSATT.

(See 8. C. 21 How., 44^-461.)

Second appeal cannot be had, tiU first decree com-
plied with.

After the authentlcit3r of a grant of land In Cali-
fornia is ascertained in this court, and a reference
has been made to the District Court, to determine
the external bounds of the grant, in order that the
final confirmation may be made, another appeal
cannot be claimed until the whole of the directions
of this court are complied with, and that decree
made.

Argued Mar, 8, 1859. Bedded Ma/r. 11, 1869.

ON MOTION to dismiss on the ground that
the decree of the District Court is not
final.

Mr. Justice Campbell delivered the opinion
of the court:

This cause came before this court by appeal
from the District Court of the United States for
the Northern District of California, and was
decided at the last term, and is reported in U.
8. V. Fossatt, 29 How.. 418.

The court determined :

" That a ^i^rant under which the plaintiff
claimed land in California was valid for one
league, to be taken within the southern, west-
ern and eastern boundaries designated therein,
at the election of the grantee and his assigns,
under the restrictions established for the loca
tion and survey of private land claims in Cal-
ifornia by the Executive Department of the
Government. The external boundaries of the
grant may be declared by the District Court
from the evidence on file, and such other evi-

186

dence as may be produced before it: and the
claim of an interest equal to three fourths of
the land granted is confirmed to the appel-
lee."

The District Court, in conformity with the
directions of the decree, declared the external
lines on three sides of the tract claimed, leav-
ing the other line to be completed by a sui-vey
to be made. From the decree, in this form,
the United States have appealed.

A motion has been submitted to the court
for the dismi&sal of the appeal, because the de-
cree of the District Court is interlocutory, not
final.

This motion is resisted, because the inquiries
and decrees of the Board of Commissioners for
the settlement of private land claims in Cali-
fornia, by the Act of 3d March. 1851 (9 Stat, at
L., 632). in the first instance, and of the courts
of the United States on appeal, relate only to
the question of the validity of the claim — and
by validity is meant its authenticity, legality,
and in some cases interpretation, but does not
include any question of location, extent, or
boundary — and that the District Court has
gone to the full limit of its jurisdiction in the
decree under consideration, if it has not already
exceeded it.

The matter submitted by Congress to the in-
quiry' and determination of the Board of Com-
missioners, by the Act of 3d March, 1851 (9
Stat, at L., 632, sec. 8), and to the courts of the
United States on appeal, by that Act and the
Act of 31st August, 1852 (10 Stat, at L., 99,
sec. 12), are the claims **of each and every per-
son in California, by virtue of any right or title
derived from the Spanish or Mexican Govern-
ment." And it will be at once understood that
these comprehend all private claims to land in
California.

The effect of the inquiry and decision of these
tribunals upon the matter submitted is final and
conclusive. If unfavorable to the claimant,
the land '* shall be deemed, held, and consid-
ered, as a part of the public domain of the
United States;" but if favorable, the decrees
rendered by the Commissioners or the courts
*' shall be conclusive between the United States
and the claimants."

These Acts of Congress do not create a vol-
untary jurisdiction, that the claimant may seek
or decline. All claims to land that are with-
held from the Board of Commissioner during
the legal term for presentation, are treated as
non-existent, and the land as belonging to the
public domain.

Thus it appears that the right and title of the
inhabitants of California, at the date of the
Treaty of Ouadaloupe Hidalgo, to land within
its limits, with the exception of some within
the limits of a pueblo or corporation described in
the 14th section of the Act of 3d March, 1851,
must undergo the scrutiny of this Board, and
that its decisions are subject to review in the
District and Supreme Courts. This jurisdic-
tion comprehends every species of title or right,
whether inchoate or complete ; whether resting
in contract or evinced by authentic act OiPd ju-
dicial possession.

The object of this inquiry was not to discov-
er forfeitures or to enforce rigorous conditions.
The declared purpose was to authenticate titles,
and to afford the solid guarantee to rights which

62 U- 8.

1858.

Ukited States v. Fossatt.

440^51

ensues from their full acknowledgment by the
supreme authority. The tribunals were mere-
fore enjoined to proceed promptly, and to ren-
der judgment upon the pleadings and evidence;
and in deciding, they were to be ^verned by
the laws of nations, the stipulations of the
Treaty of Guadaloupe Hidalgo, the laws, usages
and customs of the Gk)vernment from which
the claim is derived, the principles of equity,
and the decisions of the Supreme Court of the
United States in similar cases.

What are the questions involved in the in-
quiry into the validity of a claim to land ?

It is obvious that the answer to this question
must depend, in a great measure, upon Uie state
and condition of the evidence. It may present
questions of the genuineness and authenticity
of the title, and whether the evidence is forged
or fraudulent; or, it may involve an inquiry
into the authority of the officer to make a grant,
or whether he was in the exercise of the facul-
ties of his office when it was made ; or, it may
disclose questions of the capacity of the grantee
to take, or whether the claim has been aban-
doned or is a subsisting title, or has been for-
feited for a breach of conditions. Questions
of each kind here mentioned have been consid-
ered by the court in cases arising under this
law.

But, in addition to these questions upon the
vitality of the title, there may arise questions
of extent, quantity, location, boundarv, and
legal operation, that are equallv essential in de-
termining the validity of the claim.

In affirming a claim to land under a Spanish
or Mexican grant, to be valid within the law of
nations, the stipulations of the Treaty of Oua
daloupe Hidal^, and the usages of those gov-
ernments, we imply something more than that
certain papers are genuine, legal, and transla-
tive of property. We affirm that ownership
and possession of land of definite boundaries
rightfully attach to the grantee.

In the case of The UnUed States v. Arredondo,
6 Pet., 691, the inquiries of this court, beside
those affirming the legality of the grant, ex-
tended to questions oi forfeiture for the non-
fulfillment of conditions, the inalienability of
lands in possession of an Indian tribe, and
fraud. The Superior Court of Florida in that
suit directed that the land should be surveyed,
in the form of a square, with a designated
monument as the center. This court annulled
that decree, and ascertained another as the cen-
tral point. The appeal in Mitchell v. United
States, 15 Pet., 52, was taken in a case that had
been decided here, and in which an issue upon
the decree that succeeded the mandate of this
court, and made in execution of it, subsequent-
ly arose. Certain property about Fort St.
Mark's was excepted in the original decree of
confirmation, ana reserved to the United States,
and the Superior Court in that decree was di-
rected to ascertain the extent and boundaries of
the land reserved. This was done, and the land
speciflally described, and on appeal this decree
was affirmed.

These questions arose upon an Act of Con-
gress that required the courts. *' by a final de-
cree, to settle and determine the question of the
validity of the title according to the law of na-
tions, the stipulations of any treaty and pro-
ceedings under the same, the several Acts of

See ii How.

Congress in relation thereto, and the laws and
ordinances of the Government from which it is
alleged to have been derived." This Act enu-
merates as proper to be heard and decided, pre-
liminary to such a decree, questions of extent,
location, and boundary. 4 Stat, at L., 52,
sec. 2.

It is asserted on the part of the appellants
that the District Court has no means to ascer-
tain the specific boundaries of a confirmed
claim, and no power to enforce the execution
of its decree, and consequently cannot proceed
further in the cause than it has done.

The 13th section of the Act of 8d March,
1851, makes it the duty of the Surveyor Gen-
eral to cause all private claims which shall be
finally confirmed to be accurate surveyed, and
to furnish plats of the same. It was the prac-
tice under the Acts of 1824 and 1828, 4 Stat, at
L., 52, 284, for the court to direct their man-
dates specifically to the Surveyor designated in
those Acts. And in the case Bx parte aU>bald v.
United States, 12 Pet., 488, the dutv of the
Surveyor to fulfill the decree of the court
and the power of the court to enforce the dis-
charge of that duty, are declared and main-
tained. The duties of the Surveyor begin un-
der the same conditions, and are declared in
similar language, in the Acts of 1824, 1828, and
of 1851.

The opinion of the court is, that the power
of the District Court over the cause, under the
Acts of Congress, does not terminate until the
issue of a patent, conformably to the decree.

In the exercise of the jurisdiction conferred
by this Act, and Acts of a similar character,
this court has habitually revised decrees of the
District Court, which were not final decrees
under the Judiciary Act of 1789. The court
has uniformly accepted, in the first instance, as
a final decree, one that ascertained the authen-
ticity of the claimant's title, and declared, in
general terms, its operation, leaving the ques-
tions of boundary and location to be settled
subsequently. This practice was approved in
the case last cited. The peculiar nature of
these cases rendered such a relaxation, of the
rules of proceeding of the court, appropriate.
The United States did not appear in the courts
as a contentious litigant: but as a great nation,
acknowledging their obligation to recognize as
valid every authentic title, and soliciting exact
information to direct their executive Govern-
ment to comply with that obligation.

They had instrumentalities adequate to the
fulfillment of their engagements without delay,
whenever their existence was duly ascertainea.
There was no occasion for the strict rules of
proceeding that experience has suggested, to
secure a speedy "and exact administration be-
tween suitors of a different character. And it
has rarely Occurred that the same case has reap-
peared in the court after the first decree. If
the litigation had been other than it was, the
rule of proceeding would have varied with it.

But, after the authenticity of the grant is as-
certained in this court, and a reference has been
made to the District Court, to determine the
external bounds of the grant, in order that the
final confirmation may be made, we cannot un-
derstand upon what principle an appeal can be
claimed until the whole of the directions of this
court are complied with^ and that decree made.

187

461-466

SUFBBICB Ck>UBT OV THB UmnED STATBS.

Deo. Tskm,

It would lead to vezatiouB and uniust delays to
sanctioD such a practice. Iti» the opinion of
the court that tm appeal vhu improvidently
taken and allowed, and muit be diemiseed; arid
that ths District Court proceed to aecertain the
external linea of the land confirmed to tlte ap-
peUee, and enter a final decree of eonfirmatum
of the land.

RUSSELL STURGIS, Libt, Appt,,

«.

JOHN CLOUGH, ROBERT L. MABEY and
HENRY M. WEED, Claimanto of the
Steamboat R L. Mabbt, her Tackle, Ac.
(See S. Cm 21 How.. 451-466.)
OoUUdon-^eteam tugs — ruJs,

Two Bteam-tugB two or three milee apart, lookin^r
out for employment each started for a brv> In dif-
ferent directions* to tender their services.

According to the established rules for navi^ratinff
boats under such circumstances, the steam-tug;,
which was following in the wake of the brii[, sbould
come up on her starboard quarter, and .slack her
engine, so as not to pass the briff.

Thesteam-tuff which was coming down in the op-
posite direction, ougrht to round to, either to wind-
ward or leeward, so as to head the same way as the
briir.

The evidence clearly shows that this collision was
occasioned wholly through the fault of the master
and pilot, of the latter.

Argued F^. ff , 1859. Decided Mar, 11, 1869,

APPEAL from the Circuit Court of the
United States for the Southern District of
l^ew ^Tork

The libel in the case was filed in the District
Court of the United States for the Southern
District of New York, by the appellant, to re-
cover damages resulting from a collision.

The court entered a decree dismissing the li-
bel, without costs. The Circuit Court, on ap-
peal, affirmed this decree; whereupon the libel-
ant took an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Mr, E. C Benediot» for appellant.

Mr, D. McMahon* for appellees.
The arguments of counsel, being almost en-
tirely confined to the facts, are not here given.

Mr, Justice Orier delivered the opinion of
the court:

The libelant in this case is owner of a steam-
tug called The Zacbary Taylor, or Hector.

The claimants are owners of the steam-tug
Mabey. •

At the time of this collision, on the 11th of
August, 1864. they were both engaged in the
buuness of towing vessels into the port of New
York, from the neighborhood of dandy Hook.

The Hector was an old, heavy boat, some one
hundred and eighty or one hundred and ninety
feet long: The ]M!abejr a new, light boat, of
about one hundred feet in length, and much
the swifter of the two, in the ratio of about
fourteen to eight

Nora.— OoSMon. Kulea/oroooidivii; steamer meet-
ifioiitsainer. See note to Williamson v. Barrett,

M u. s. (18 How.), vn.

1S8

They were each looking out for employment
about noon of that day, when the brig Wan-
derer was passing in, by Sandy Hook, sailing
slowly in a northwest course. The two steam-
tugs must have been some two or three miles
apart, when they each started for the brig in
different directions, in order to tender their serv-
ices. Each boat put all its steam, as the first
who could hail the brig would be entitled to
the job.

The Hector, being in the rear, came up in
the wake of the brig and nearly on her course.
The Mabey came in S. S. E. course, meeting
the brig in an acute angle to its course. As
they came together near the starboard quarter
of Uie brig, their respective distances from her
at the time of starting must have been in the
ratio of their velocities. The Mabey, being
much the fastest boat, no doubt expected to
make up for this difference in distance by her
superior fleetness.

According to the established rules for navi-
gating boats under such circumstances. The
Hector, which was following in the wake of
the brig, should come up on her starboard
quarter, and slack her en^ne, so as not to pass
the brig. The Mabey, which was coming down
in the opposite direction, ought to round to,
either to windward or leeward, so as to head the
same way as the brig. Had these well-known
rules been observed, no collision would have
occurred in consequence of the race for preced-
ence.

Cases may occur in which two steamboats
engaged in unlawful racing may recklessly or
willfully dash against each other ; and the courts,
treating them both as criminals, may refuse to
sustain an action or decide which was most^to
blame, leaving each to suffer the consequences
of his own folly and recklessness.

We do not think that the testimony shows
this to be such a case. Each of these boats
had a right to move as fast as it could in order
to obtain precedence, and each had a right to
expect that the oUier would pursue the custom-
ary and proper course in navigating their ves-
sels, in such circumstances, by the observance
of which there would be no dan^r of collision.

Have both these boats, in their anxiety for
precedence, disregarded the proper precautions
to avoid a collision, or is the fault wholly to be
attributed to the mismanagement of The
Mabey?

The defense set up in the answer, that The
Mabey "got to the brig first, slacked her speed,
slowed and stopped, and that The Hector at-
tempted to pass under the bows of The Mabey,
and in executing that maneuver, with the cov-
etous desire of getting the right to tow the bri^,
she ran against The Mabey, obliquely," &c., is
clearly and satisfactorily proven to be not true.
The fact that the stem of The Mabey, the lighter
and swifter boat, was driven into the starboard
bow of The Hector, stripping her guards down
to the wheel, shows conclusively that The Ma-
bey was not stopped, but was under nearly full
headway.

If the collision had occurred as stated in the
answer, the great momentum of the larger
boat would most probably haye sunk the
smaller.

The witnesses on The Hector all concur that,
though the engineer was directed to proceed

68 U.S.

1858.

Westbrn Taleqrafh Ck>. v. Magnetic Telbgrafh Ck>.

46(^460

with his utmost dispatch, The Hector followed
in the wake of the brig, and when near to her
had slacl&ed her speed and stopped her wheel,
so as to lap on the stem of the brig as she came
alongside of her starboard quarter, and within
twenty feet of her; and that she was nearly at
rest when The Mabey ran, with all her force,
into the starboard bow of The Hector. As these
witnesses are all confirmed by the pilot of the
brig, who was an impartial observer of the
whole transaction, his statement may be fairly
taken as a correct representation of it.

He states that he first saw The Hector about
a mile distant, heading towards the brie, about
northwest; that she came up to the brig in
about ten minutes, stopped her engine when
she came within one hundred to two hundred
yards of the brie, and then came alongside with
the way she haa on ; and the captain spoke to
the witness. That the brig was going at the
rate of about a mile an hour, and The Hector
was dropping astern, if anything, when The
Mabey ran into her.

That, when he first observed The Mabey,
she was about half a mile off, coming south-
west or west-southwest; that shis was about an
eighth of a mile from the brig when The Hec-
tor let her steam off; that 3ie continued her
course till she struck the starboard bow of The
Hector, and ran into her forward of the wheel-
house; that, when the pilot of The Mabey dis-
covered that he had run his boat so as to ren-
der a collision inevitable, he ran out of thepi-
lot house and went aft; that the wheels of The
Mabey were in motion till the time of the col-
lision; that The Hector could do nothing to
avoid the collision, because she had stopped her
engine and was falling behind the brig.

The master of The Hector acted on the sup-
position that The Mabey, according to custom,
would round to, and could not anticipate that,
contrary to all rule, she would run into The
Hector, as she lay nearly at rest, lapping on the
stern of the brig, when a single turn of her
wheel, with her great headway, would have
run her entirelyclearof any danger of collision.
Hence, when his pilot told him The Mabey was
coming in a direction to run into him, he said,
"No, she will so under our stem." He pre-
sumed, and haa a right to presume, that the
pilot of The Mabey knew his duty, and in-
tended to lound to, behind the stern of the brig
and tug, and not make the reckless attempt to
run between them.

The testimony of the pilot of The Mabey, in
fact, confirms this view of the case, and shows
the collision to have been occasioned entirely
by his own fault, or that of the master who di-
rected him. He says, "My instruction was to
run close to the brig's stem." The master
says, *'he expected The Hector would get out
of his way;" and the pilot says, "I supposed
she would go on the other quarter, or else steer
outside of me." In other words, he proceeded
in a direction which he knew must produce a
collision unless The Hector would get out of
his way. It is clear that his intention was to
drive The Hector away from the brig, or com-
pel her to take the consequences. The pilot
admits, also, that he knew the proper way to
approach the brig was by rounding to; which
would not have brought him within three hun-
dred feet of the point of collision. He admits,

bee 21 How.

also, that he could have gone on either side of
the brig, and "knew it was nautical and cus-
tomary to come up on the weather quarter, and
to round to for a tow, but he had instructions
from the captain to go for the brig, and to get
there before The Hector if he could."

We are of opinion, therefore, that the evi-
dence clearly shows that this collision was oc-
casioned wholly throiuph the fault of the mas-
ter and pilot of The Mabey.

The decree of the Circuit uourt is, iherrf(0re, re-^
verted, mth eosU, and the record remitted with
instructions to enter a decree infator of libelant,
and hate such further proceedmgs as to justice
and right may appertain.

THE WESTERN TELEGRAPH COM-
PANY, Appt,

THE MAGNETIC TELEGRAPH COM-
PANY, AND ARUMAH 8. ABEL Airo
ZENU8 BARNUM.

(See S. Cm SI How., 45<M0O.)

Telegraph eoniraet — drcuOous Une.

Where the Western Tele^rraph Company had the
exclusive right to use the Morse patent on lines
from Baltimore to Wheeling, with branches to
Washington and Pittsburg, respectively.

The oomplaiDt that at the points where the opera-
tions of the Western Telegraph cease, whether it be
east, north, or west, the messages are not forwarded
by the Western Telemtph Co.a>ut they are diverted
from those lines, ana sent by circuitous routes, or
at least by lines of increased length : as no con-
tract, express or implied, is shown, entitles the
complainant to no relief.

A choice of lines may weU be exercised, if there
be no violation of the patent, although the circuit-
ous line passes over a greater distance, as this can
be no ground of complaint.

Argued Mar, S, 1859. Decided Mar, 11, 1869.

APPEAL from the Circuit Court of the Unit-
ed States for the District of Maryland.

The bill in this case was filed in the court
below, by the appellant, for an injunction and
accounting, etc., for an alleged breach of cer
tain patent privileges.

The court having entered a decree dismiss
in^ the bill, the complainant took an appeal to
this court.

A further statement of the case appears in
the opinion of the court.

Mr. Cornelius McLeaAt for appellant :

1. The complainant claims that under its
assignment it is entitled to all the business be-
tween Wheeling snd Pittsburg, and Washing-
ton and Baltimore.

The defendants could not have set up a paral-
lel line of telegraph between those points, and
the question is, simply, whether they could do
indirectl V and by combination, what they could
not do directly.

Lee V. Lee, 8 Pet., 44; IT. 8. v. Quincy, 6 Pet. ,
466; The William King, 2 Wheat., 148; see,
also, Feigtey v. Feigley, 7,Md., 561.

189

456-460

SUFBEME COXTBT OF THB UkITBD StATB8.

Dec. Tbbm,

2. The complainant, being entitled to carry
telegraphic messages between those points, has
also the right to carry all messages reaching
those points and destined for other points on its
line, or other points to which Its line is the
shortest and most direct route; and the defend-
ants cannot lawfully combine with others to
divert them from the complainant's line.

Mr. R. J. Brent» for appellees.

Mr, Justice McLean delivered the opinion
of the court:

This is an appeal from the Circuit Oouit of
the United States for the District of Maryland.

On the SOlh of April, 1849, a contract was
entered into between Amos Kendall, as attor-
ney in fact for Samuel F. 6. Morse, and Alfred
Vail, of the first part, and the Western Tele-
graph Company of the second part.

In the agreement, it was stated that the
United States had heretofore granted to Samuel
F. B. Morse letters patent for the magnetic tel-
egraph, known as Morse's Telegraph; and that
the said Morse subsequently assigned a portion
of his interest in the said letters patent to Alfred
and Leonard V. Gale; and the said Morse, Gale,
and Vail, subsequently, by letters of attorney,
recorded among the transfers of patent rights,
constituted Amos Kendall their true and lawful
attorney, for them and in their behalf, &c. And
whereas, the said Western Telegraph (Jompany
are desirious to obtain, in due form, the privi-
leges of said letters patent for lines of telegraph
belonging to them between Baltimore and
Whedin^, with a branch therefrom to Wash-
ington City, and a branch from Brownsville to
theCity of Pittsburg:

Now, the said Amos Kendall, in considera-
tion of $86,000 paid to him in the stock certifi-
cates of the Western Telegraph Company, hath,
as far as he possesses legal authority, by virtue
of the power of attorney aforesaid, or other-
wise, granted, assigned, and conveyed, to the
Western Telegraph Company, the full and ex-
clusive right to use the invention of the said
Morse, secured by letters patent on the said
lines from Baltimore to Wheeling, with branches
to Washington and Pittsburg, respectively, for
the remainder of the time yet to come m the
said letters patent, with the benefit of any ex-
tensions and renewals thereof, it being under-
stood that the right granted is to be for one
wire only,unless with the consent of the patent-
ee.

And Francis O. J. Smith conveyed his right
to the Western Telegraph Company's existing
lines from Baltimore, in the State of Maryland,
to Wheeling, in the State of Virginia, and in
branches to Washin^^ton and Pittsburg cities,
in full right, on the 27th of March. 1857.

These conveyances vested in the Western
Telegraph Company all the right which the
patentee had, on the conditions stated, to use
and enjoy the lines designated for the trans-
mission of telegraphic messages, in as full and
ample a manner as the patentee could himself
have enjoyed, had no assignment of his right
been made.

But it is alleged that another assignment of
Morse's patent was made to a company from
Pittsburg to Philadelphia, and to another com-

190

pany from Harrisburg to Baltimore, and that,
by conspiring with those companies, the Mag-
netic Company has taken messages at Phila-
delphia, sent from Pittsburg and Wheeling,
directed to Baltimore and Washington, and
other similar messages from the Harrisburg
line directed to Washington ; and also messages
from Washington and Baltimore, by Philadel-
phia and Harriaburg, to Wheeling and Pitts-
burg, and through tho^e points to points further
west; and that this was done by uniting the
lines or working them together, under a con-
tract, in order that they might get, in conjunc-
tion with the other Companies, &e whole of the
business between those points.

The complainants do not seem to be well ad-
vised as to what means of combination, con-
spiracy, or contract, the injury complained of
has been done; but they charge that, by the
means alleged, their lines have, in a degree, been
destroyed. They are only able to say that the
business on their lines has been diverted by the
magnetic lines. And the equitable powers of
the court are invoked against the injuries com-
plained of.

The bill does not allege any direct infringe-
ment of the patent, owned by the Western Tele-
fraph Company, by the Magnetic Company,
'hose lines are free to transmit any messages
that may be forwarded on them. But the com-
plaint seems to be, that at the points where the
operations of the Western Telegraph cease,
whether it be east, north, or west, the messages
are not forwarded by the Western Telegraph,
but they are, by the means used, diverted from
those lines, ana sent by circuitous routes, or at
least by lines of increased length.

It must be expected that great competition will
exist in the transmission of intelligence, where
telegraphic lines have been established through-
out the country. But it would be difficult to
find a remedy for these evils, whether real or
supposed, which are not founded on contract.
It was in the power of the Western Telegraph
Company to form connections with other lines, .
so as to secure uninterrupted communications.
But if these precautions have not been observed,
and a supposed convenience or dispatch has
been deemed a sufficient security for the co-
operation of the lines connected with the West-
ern Tele^aph Company, and no contract, ex-
press or implied, is shown, the complainant is
without remedy.

Men. unless legally bound to certain duties,
may, from whim or caprice, indulge their sup-
posed interests or resentments without responsi-
bility. Unless certain rates of transmitting in-
telligence have been established, a reduction of
such rates, whether done secretly or publicly,
will affect the profits on other lines.

Nothing set up in the bill, in the form of a
contract, entitles the complainant to relief. A
choice of lines may well be exercised, if there
be no violation of the patent, although the cir-
cuitous line passes over a greater distance, as
this can be no ground of complaint. It violates
no contract, and almost necessarily grows out
of the competition in this branch of business.

From the facts stated in the bill, there seems
to be ground for relief.

JvdgmerU affirmed.

62 U. S.

1858.

Wbbtbbn Taleobafh Co. v. PicNKiHAir.

460-463

THE WESTERN TELEGRAPH COM-
PANY. Appt,

GEORGE C. PENNIMA& and JOHN

KING.

(See S. Cm 21 How., i(XM68.)

Telegraph message — obligation to send by partic-

ula/r line.

The Western Telegraph Gompanv filed their bill
astheaole proprietors of the riffht to construct
and use Morse'^ eleotro-maffnetic telein^ph be-
tween Baltiroore and New York and Uarrisbursr,
and pray for an injunction.

\ The principal Rround of complaint in the bill is,
that the business of the Western Telegraph Com-
pany has been diverted from it, upon other lines,
srreatly to its injury, and it would seem that cir-
cuitous routes have been selected, rather than the
more direct one. This affords no ground for relief.

There is no obligation on a person sending a tel-
egraphic message to select tbeshortest or the long-
est line, unless he has entered into a contract to
forward all such messages on a particular line.

Argued Mar, 4* 1859, Bedded Mar, 11, 1859.

APPEAL from the Circuit Court of the Unit-
ed States for the District of Maryland.
The history and facts of this case are sub-
stantially the same as of the preceding case.
The argument of counsel there given also ap-
plies to this case.
The case is further stated by the court.

Mr. ComeUuB McLean« for appellant.

Mr. R. J. Brent» for appellees.

Mr. Justice McLean delivered the opinion
of the court:

This case is before us by an appeal from the
Circuit Court of the United States for the Dis-
trict of Maryland.

The Western Telegraph Company, a corpo-
ration incorporated by the States of Maryland,
Virginia and Pennsylvania, have filed their
*bill against Greorge C. Penniman and John
King, citizens of Maryland, and charges them
with the violation of the patented rights of the
Western Teleeraph Company, under a con-
tract made with Morse, Vail and Smith, dated
the 8th of March, 1840. The above named
persons are alleged to be the sole proprietors of
the right to construct and use Morse's electro-
magnetic telegraph, by him invented and pat-
ented, on the route between Baltimore, in the
Stale of Maryland, and New York,and Harris-
burg, in the State of Pennsylvania, for and in
consideration of $30 per miles, by the route on
which the telegraph has been or may be con-
structed, between the points or places afore-
said. And said right, through their agent,
Amos Kendall, was conveyed unto John C.
Penniman and his assigns, to construct be-
tween the points or places aforesaid the said
telegraph, with one or more wires, with the
apparatus for working the same and the im-
provements therein. And the said Morse &
Co. covenant not to grant to any other person
or persons the right to construct any other line
of telegraph under the patent aforesaid, within
the aforesaid limits, either in a direct or indi-
rect line.

The contract between Kendall, as attorney of
Morse and Vail, with the Western Telegraph

See 21 How.

Company, ^ranted to it in due form the privi-
leges of saia letters patent for lines of telegraph
belonging to it, between Baltimore and Wheel-
ing, with a branch therefrom to Washington
City, and a branch from Brownsville to the
City of Pittsburg, &c. ; and the right of Fran-
cis O. J. Smith, which was also conveyed, was
limited to the Western Telegraph Company's
existing lines from Baltimore, in the State of
Maryland, to Wheeling, in the State of Vir-
ginia, and in branches to Washington and
rittsburg cities; the right herein conveyed and
so limited by said territorial termini being one
fourth part of said invention and letters patent,
&c.

The complainants pray for an injunction, and
that an account may be taken, for a breach of
its patent privileges.

The defendants procured an assignment of
Morse's patented electro telegraph between the
Cities of Baltimore and HarriBburg. and after-
wards a like assignment from him between
Baltimore and Wheeling, with the right of a
branch to Pittsburg and Washington ; and it is
alleged that complainants claim the right to
telegraphic business on the Morse plan between
those points; not only all that commence and
end at these several points, but all that, starting
at remote points, has to reach either of those
points by coming through either of the others.

There can be no doubt that the right of
transmitting on the lines conveyed to the
Western Telegraph Company are as full and
ample as would have been the rights of the
patentee, had he never assigned them.

The assignment of Morse's to a Company
from Pittsburg to Philadelphia, and from
Washington to Baltimore, Philadelphia and
New York, it is alleged, has enabled the de-
fendants to take messages at Harrisburg from
Wheeling, directed to Baltimore and Washing-
ton, and other southern points; and has also,
in like manner, taken messages from the Mag-
netic Company between Washington and New
York at Baltimore, and transmit them to Pitts-
burg, and to points west, through Pittsburg.
Ana this was oone, it is said, in conjunction
with the said companies, in order to get the
business which, but for said combination,
would and ought to have come by the com-
plainants' line.

The charges against Penniman and King
are, substantially, the same combinations as
charged against the agents of the Magnetic
Company ; and we can only say, as was said
in the other case, the assignees may claim a
protection in all Uie rights assigned to them ;
and if, in any respect, their patent has been
infringed, a remedy is open to them. But it
does not appear that the defendants were lim-
ited as to the use of the lines owned by the
Western Telegraph Company, although the
points on their lines were shortest. Each per-
son, in using a telegraph line, is free to select
his own conveyance. There are several things
which recommend telegraphic lines. The ma-
chinery should be kept in proper order; strict
attention should be given to the transmission
of messages, and competent persons engaged
in the office. Where there is much competi-
tion, great energy is required. And if this be
wanting, success may not be expected.

The principal ground of complaint in the

191

463-481

BUFBBXB Ck>UBT OF THB UnITBD BtATBA.

Dec. Tebm

bill is, that the business of the Western Tele-
graph Company has been diverted from it, and
thrown upon other lines, greatly to its injury,
and it would seem that circuitous routes have
been selected, rather than the more direct pnes.
If this be 80, does it afford a ground for relief'?
There is no obligation on a person sending a
telegraphic message to select the shortest or the
longest line. He may consult his own interest
or (!hoice in such a matter, and he incurs no
responsibility to anyone, unless he has entered
into a contract to forward all such messages on
a particular line. No such allegation is con-
tained in the bill, and there is no charge that
the Western Telegraph Company has been mo-
lested in the exercise of its patented rights,
except by the transfer of its business to other
lines; and it is not alleged that these lines are
prohibited from carrying messages by reason
of their contiguity to the plaintiffs' lines.

Judgment affirmed.

JAMES C. CONVERSE, Administrator of
Philip Greelt, Jr., Deceased, Plff, in

THE UNITED STATES.

(See 8. C, 21 How., 463-481.)

Agent to make pureh(ue8 far Ughtrhouee eervioe —
rer)enue offiier may be — eompeneatii&n — la^e
forbidding, not appUedble,

Notwithstanding the Act of Hay 7. 18SSSB, sec 16
which provides that ** no collector shall ever re-
ceive more than $4100 annually, exclusive of his
compensation as collector, for any service he may
render in any other office or capacity, and the Act
of 1830, embracinar all persons holdinar office with a
fixed salary, precisely similar in its principles and
subsequent legislation on this subject, the secre-
tary bad a right to employ an agent, instead of the
collector or, collectors of the several districts to
make purchases for the light house service : and if
he did employ one, the law fixed the compensation
and appropriated the money to pay it.

He was not forbidden to employ a revenue officer
for this purpose: and, so far as^ls services were per-
formed for other districts, he stood in the same re-
lation to the government as any other agent.

The law forbidding compensation or reducing It
to a small amount, did not apply to this service.

The agency was entirely foreign to his official
duties, and far beyond the limits of the district to
which the law confined his official duties and
power.

And as the department appointed him to perform
a duty required by law, for which the oompensa-
tion was nxed by law, and the money appropriated
to pay It, be Is entitled to the compensation if he
has performed the duty.

Gourt erred in ref umng to admit the testimony
in regard to such services and commissions of the
collector.

Argued Mar. 4, 1869. Decided Mar. 11, 1869.

IN ERROR to the Circuit Court of the United
States for the District of Massachusetts.
The history of the case, and a statement of
the facts involved, appear in the opinion of the
court.

Messrs. C. T. Russell and C. Cashing*

for the plaintiff in error.

Messrs. J. S. Black* Atty-Gen., and Ed-
win M. StSAton* for defendant in error:

Note.— JBjfra pay or Oompetisotion to oMcen.
See note to U. S. v. Macdaniei,82 U. S. (7 Pet.},!.

This case arose from a set-off pleaded to a
suit of the United States against Greely. late
Collector of the port of Boston, and his secu-
rities.

The set-off was for $17,684.02, as commis-
sions upon disbursements made by him in the
purchase of oil, &c., for the light-house service
of the United States. It is admitted that the
disbursements were made b7 order of the
Treasury Department, and that the amount
claimed is correct, if defendant is entitled
to commissions at all. It is also admitted that
the defendant was superintendent of lights and
disbursing agent for the district of Boston, and
that as Collector he received a salary of $6,000
per annum, and also the sum of $^ allowed
by law.

The queiStion turns wholly on the Statutes
of the United States.

By Act of May 7, 1822 (sec. 18, 8 Stat, at
L., 696), it is enacted: *'That no Collector,
surveyor or naval officer shall ever receive
more than four hundred dollars annually, ex-
clusive of his conipensation as Collector, sur-
veyor, or navid officer, and the fines and for-
feitures allowed by law, for any services he may
perform for the United States in any other
office or capacity."

This Act concludes the question, as it has
never been repealed, except to forbid the pay-
ment even of the $400.

After citing other statutes, mentioned in the
opinion of the court, counsel concluded that
Mr. Greely has already received more than the
law allows, as the salary of $400 was stopped
by the Act of Sept. 30, 1850, if not before.

Mr. Chief Justice Taney delivered the opin-
ion of the court:

This is a writ of error to the Circuit Court
of the United States for the District of Massa-
chusetts.

The pleadings and facts in the case, and the
points in controversy, are briefly jeX clearly
stated in the exception and opinion of thfe
court, as set forth in the transcript, in the fol-
lowing words:

" £ it remembered, that at a term of the
Circuit Court of the United States, holden at
Boston, within and for the District of Massachu-
setts, on the 16th day of May, 1857, by the Hon-
orable Benjamin R. Curtis, Circuit Judge, and
the Honorable Peleg Spraffue, District Judge,
came the United States of America, and by an
action of assumpsit declared against James C.
Converse, of Boston, in said district, as he is
administrator of the goods and estate of Philip
Greely, Jr., late of said Boston, deceased, andt
late Collector of Customs at said Boston, in said
district, as by the writ and declaration of record
will appear; to which the defendant pleaded
the general issue, and filed certain claims in set-
off, as by said set-off of record will appear; and
the plaintiffs joined in said issue, and thereupon
said cause came for trial before the said Circuit
Court, at said May Term, before a iury impan-
eled for that purpose, and the said defendant
then and there claimed to be allowed, among
other things, in set-off against the plaintiff's
claim, the sum of seventeen thousand six hun-
dred and eighty-four dollars and ninety-two
cents ($17,684.92), as commission due him from
the plaintiffB upon certain contracts, purchases

«2 V. S.

1858.

CoNVKBfiB V. United States.

463-181

and disbursements made by bim for oil and
other articles for the li^ht house service of the
United States, under direction of the Secretary
of the Treasury.

'*At the trial it appeared by the transcript from
the Treasury Department of the plaintiffs in-
troduced by them in evidence, that said claims
had been duly and properly presented by the
defendant's intestate, Mr. Qreely, at the Treas-
ury Department, for credit and allowance, and
had there been disallowed, and no objection
was made by the plaintiff to the defendant's
right to recover of the plaintiff upon this
ground.

It also apeared that the defendant's intestate,
as collector, had, during each year he was col-
lector, received the compensation of $6, 000, and
and also the sum of $4QP allowed by law.

No question was made as to the amount of
commissions claimed. The plaintiffs, in their
transcripts, admit that the sum of $17,684.92 is
two ana a half per cent, commission upon the
defendant's disbursements for light-house pur-
poses during his term of office, and no objec-
tion was m^e that that is not the proper com-
mission, if the defendant is entitled to any.

It was further admitted that the defendant
was, from May 1st. 1849, to April 1st, 1858,
superintendent of lights and disbursing agent
for the district of Boston.

The duties of this office, it was offered to
prove, were the charge and superintendence of
all light houses between Eastham and Plum
Island. Newburyport, including the making of
all necessary disbursements for the payment of
the keeper's salaries, wages of men, repairs, and
the necessary supplies, in the same manner as
other superintendents and disbursing agents in
their respective districts.

The defendant then offered to prove the fol-
lowing facts in regard to these disbursements
upon which the aforesaid commission was
claimed :

The Secretary of the Treasury, or the proper
officer under him, during the whole term of
the defendant's office, was accustomed, from
time to time, to send specific orders to him
to advertise for proposals, make contracts for
and purchase all the oil, lamps, wicks, and sup-
plies of every kind, required for the whole light-
house service of the United States, as well that
of the sea coasts as the lakes and rivers.

Agreeablv to such orders or requests, the de-
fendant did, from time to time, make all these
contracts and purchases, draw the necessary
contracts, and all payments and disbursements
thereunder and therefor, take charge of the
property when purchased, and distributed the
same in such quantities and to such points, all
over the United States, as were required or di-
rected by the Treasury Department. These
services involved much time, labor and re-
sponsibility on the part of the defendant, and
were performed at the request and upon the or-
der of the Treasury Department. The defend-
ant paid out no moneys which have not been
allowed.

And it was upon all disbursements thus made
that he claimea the aforesaid two and a half per
cent, commissions, amounting to $17,684.92.

The plaintiffs objected to this evidence, be-
cause they said, admitting all that was thus pro-
See 2i How. U. S., Book IQ,

posed to be proved, it gave the defendant no
claim whatever to the commissions claimed.

The court thereupon, after consideration,
ruled and«decided that, admitting all that the
defendant thus offered to prove to be true and
as alleged, yet the defendant had no rightful
claim against the plaintiffs to the said com-
missions, or any part thereof, and could not
recover the same in set-off, but that the defend-
ant, being the Collector of Customs, and, as
such, having received the aforesaid compensa-
tion of $6,000 and of $400 each year, could
not recover any sum whatever for the commis-
sions claimed as aforesaid; and the court there-
upon refused to admit the evidence offered, and
instructed the jury, in accordance with said
ruling, and for the reasons therein stated, that
the defendant could not recover for said com-
mission.

To which ruling, decision and instruction,
the defendant then and there excepted."

The question to be decided on this exception
is undoubtedly one of some difficulty. But
the difficulty arises not so much from ambigu-
ity of language in any one of the Acts of Con-
gress as from the great number of Acts passed
from time to time on this subject, which have
been referred to in the argument. They, for
the most part, differ in language in some de-
gree from one another, and are generally intro-
duced in some clause or proviso of the usual
annual appropriation law, or an appropriation
to provide for previous expenditures, and yet
all bear, with more or less force, on the ques-
tion before us.

The Acts referred to are: 1822. 8 Stat.,
696: 1839, 3 Stat., 489; 1841, 5 Stat., 432;
1842, 5 Stat., 510; 1845, 5 Stat., 736; 1848, 9
Stat., 297; 1849. 9 Stat., 865. 867; 1850, 9
Stat., 504. 542, 543; 1»51, 9 Stat., 629; 1852,
10 Stat., 97, 100; 1852, 10 Stat., 119. 120.

It is obvious, therefore, that in order to carry
into execution the intention of the Legislative
Department of the Government, these various
laws on the same subject-matter must be taken
together and construed in connection with each
other. And we should defeat instead of car-
rying into execution the will of the law-making
power, if we selected one or two of these Acts,
and founded our judgment upon the language
they contained, without comparing ana con-
sidering them in association with other laws
passed upon the same subject.

It would extend this opinion to an unreason-
able length to quote at large the language of
the various Acts and provisos above mentioned;
nor, indeed, do we deem it necessary, because
the object and policy of this whole legislation,
when taken together, will be made evident by
looking to the state of the law before and at the
time the different laws were passed, and the de-
fects which then existed, and which they were
intended to remedy. A particular reference to
a few of them, in chronological order, will be
sufficient for this purpose, and we shall refer
to those which have been mainly relied on by
the circuit court, or by the counsel for the
United States, in order to support the judg-
ment of the court below.

The first law upon this subject is the Act of
May 7, 1822, section 18, which provides that
**no Collector, surveyor or naval officer shall

19 189

463-481

SUFBEHB COUBT OF THB UNITED BTATBfl.

Dsc. Tbbh,

ever receive more than $400 annually, exclu-
sive of his compensation as Collector, surveyor
or naval officer, and the tines and forfeitures
allowed by law for any service he may render
in any other office or capacity."

At the time this law was passed, the collect-
ors, surveyors and naval officers were, in certain
contingencies mentioned in the Act of March
2, 1799. required to do the duties of the offices
of each other; and, without any special law
upon the subject, it was the settled practice
and usage of the Oovernment to require col-
lectors to superintend lights and lighthouses
in their respective districts, and to disburse
money for marine hospitals and the revenue-
cutter service, for which, by the practice and
regulations of the Treasury Department, they
were allowed certain commissions. But there
was no Act of Congress imposing these duties
on the cpllector, or fixing his commissions for
these services and disbursements. They were
charged as extra services — that is. as not be-
longing to the office of collector, and the amount
of his compensation depended altogether upon
the discretion of the Secretary of the Treasury
for the time being. These extra allowances in
some instances amounted to very large sums;
and it appears that the attention of Congress
was at length attracted to this subject, and it
was deemed right, and more consistent with
the nature and character of our institutions, to
tix by law the compensation for these services,
and not leave It in every case to depend upon
the discretion of the Secretary; and the Act of
1822 was accordingly passed for that purpose,
and for that purpose only. The language is
clear, precise and appropriate, and no multi-
plication of words could more plainly indicate
its object. The words ''any other office" were
evidently used with reference to the contin-
gencies m which one of these officers might be
required to perform the duties imposed by law
on one of the others. And the words ' 'or other
capacity" were equally essential, in order to em-
brace the extra allowances made for the agen-
cy of which we have spoken, as they were not
the duties of an office created by law. but a
mere agency of one of the departments of the
Government. The law does not forbid com-
pensation for extra services which have no af-
finity or connection with the duties of the office
he holds. On the contrary, it recognizes his
right, and gives the collector or other of these
revenue officers an additional sum, over and
al)ove their salaries as officers, for extra serv-
ices rendered as agents, which had no legal
connection with their respective offices.

The duties for which this certain compen-
sation was fixed were well known in the usages
and practice of the Government, and Congress
could, theiefore, act advisedly and with knowl-
edge, and judge what amount of money would
be a fuir compensation. But it will hardly be
supposed that Congress, by this law, intended
to fix this amount for every unforeseen and
possible service, or the duties of every possible
office which one of these revenue officers should
be directed or requested by the Secretary in
some emergency to fill: for, as Congress could
not foresee what might be the character and
importance of such a duty, there was no basis
'^n which* n judgment of its value could be
formed. Ivor can it be supposed that they in-

tended to resulate in advance its compensation
or value without some data to act upon.

Besides, no other salaried officer is men-
tioned in this law but Collectors, surveyors and
naval officers; and it would hardly be just to
the legislative body to impute to it the design
of dealing more harshly with these revenue offi-
cers than any other officers of the Government
who hav^ certain salaries, or to suppose they
would deny to them compensation in cases
where every other salaried officer was allowed
to claim and receive it.

We have dwelt more particularly on this Act
of Congress, because the principles and policv
on which it was parsed form the basis of all
the subsequent legislation on this subject, and
will be found, with some modification, in every
law. The great object? has been to establish,
by law, the compensation for public services,
whether in offices or agencies, where the nat-
ure and character of the duties to be per-
formed were sufficiently known and definite to
enable Congress to form an estimate of its
value, and not leave it to the discretion of the
head of an executive department.

After this Act of 1822, there is no Act of
Congress bearing upon this question until 1889.
In the meantime, about theyear 1833, and sub-
sequently to that time, several cases came be-
fore the Supreme Court, in which officers who
were not named in the Act of 1822, but who re-
ceived a fixed salary as a clerk in a department,
or a fixed compensation as an officer in the army,
or in some other office, claimed the right to set
off against the United States compensation for
extra services undertaken by the direction of
the Secretary, and for which there was no fixed
compensation by law. And in these cases
this court held that such compensation might
be claimed and set off under the Act of Con-
gress allowing set offs against the United States;
and that, where the extra service had been re-
quired by the head of the proper department,
the officer was entitled to a reasonable compen-
sation, to be allowed by the jury upon the evi-
dence, even if there was no law expressly re-
quiring the service or fixing compensation for
it; ana that it might be ascertained and allowed
ed by the jury in proper cases, under the direc-
tion of the court, even if the head of the de-
partment had fixed no compensation, and re-
fused to allow the claim.

Under these decisions, claims of this descrip-
tion were freauently made, and the United
States involved in inconvenient controversies
in court. These controversies again attracted
the attention of Congress to the subject of com-
pensation for extra services; and in 1839 they
passed an Act, embracing all persons holding
office with a fixed salary, precisely similar in
its principles with|the Act in relation to custom-
house officers — that is to say, they took away
from the heads of departments, and from
courts and juries, the right to fix the compen-
sation in any case where it was not fixed by
law ; and if there was no law ascertaining the
compensation or allowance for the particular
service, the party was entitled to none. It car-
ries out the principle and policy of the Act of
1822. and provides that there shall be no com-
pensation m addition to the salaiy, "unless
said extra allowance or compensation be au-
thorized by law,"

62 U. S.

1858.

CpNYEBSB Y. UmrsD Statba.

463-481

Nor does the Act of August 38. 1842 (6 Stat.,
610) ^ further than the Act of 1889, except
only in declaring that, in order to entitle the
party to demand compensation, it must not
only be fizeil by law, but that the law appro-
priating it shall explicitly set forth that it is for
such additional pay, extra allowance, or com-
pensation. Now, these words, added to the
provisions in tbe Act of 1839, onlj show that
the Legislature contemplated duties imposed
by superior authority upon the officer as a part
of his duty, and which the superior authority
had in the emergency a right to impose, and the
officer was bound to obey, although they were
extra and additional to what had previously
been required. But they can by no fair inter-
pretation be held to embrace an employment
which has no affinity or connection, either in
its character or by law or usage, with the line
of his official duty, and where the service to be
performed is of a different character, and for a
different place, and the amount of compensa-
tion regulated by law.

This provision is introduced in the annual
Appropriation Law for the support of the Army
and Military Academy. And although the
words are general, and undoubtedly include
officers in every branch of the public service,
yet. from the general character and objects of
this law, it is manifest that the attention of
Congress must have been mainly directed to
officers in the military service, who, from the
position in which unforeseen events often place
them, are called upon and required to perform
duties not specified by law or regulation, but
which grow out of, and are associated with,
military sefvice.

We pass on to the Acts of 1848 and 1849,
which are the more important because they
were passed about the time this collector came
into office, and apply particularly to the reve-
nue officers of which we are speaking. The
clauses which bear upon this question in
each of these laws is inserted in the annual
civil and diplomatic appropriation law, by way
of proviso to the clause making appropriations
to the maintenance of the light house service.
The Act of 1848 appropriates $11,640.85, being
a commission of two and a half per cent, on the
whole amount appropriated for that service,
wiih a proviso that no part of the sum thereby
appropriated should be paid to any person who
received a salary as an officer of the customs;
and that from and after the Ist day of Julv,
1849, the disbursements should be made by the
collector of the customs, without compensation.
And if this law still remained in force, it is
very clear that the agency of which we are
speaking would not have been authorized by
law, and the set-off claimed by the plaintiff in
error could not be allowed.

But this proviso in the Act of 1848 is recited
at laree in the appropriation of 1849. and re-
pealed without any saving or qualification;
and this repealing clause is immediately pre-
ceded by an appropriation for superintendents'
commissions of $11,078.25, being two and a
half per cent, on the whole amount appropri-
ated for light house purposes. There is no re-
striction in these commissions in relation to rev-
enue officer!). The commissions are to be paid
on the whole amount, without any reference
to the person or officer who performs the serv-

8ee 21 How.

ice; consequently, under this law the revenue
officer who performed this duty within his own
district was entitled to two and a half per cent,
commission on the amount disbursed ; and pre-
vious Acts of Congress restricting this allow-
ance were repugnant to this law, and thereby
repealed. The repeal of the Act of 1848 could
not, upon any sound principle of law, revive
any previous Act which was repugnant to the
provisions contained in the repealing Act of
1849. And this Act allowed the commission
of two and a half per cent, in all cases, and ap-
propriated the money to pay it, leaving it to
the Secretary of the Treasury to select as agent
each collector for his collection district, or any
other agent that he might deem more suitable
for the trust.

The Act of September 28th. 1860, however,
restored the provisions contained in the first
Act referred to — that is, the Act of 1822 — and
provides that no collector shall receive for his
services as superintendant of light-houses over
the sum of $^^0 per annum. But this Act was
followed by the civil and diplomatic appropri-
ation law, passed at the same session, Septem-
ber 80th, 1850, only two days after the law
above mentioned, in which the compensation
is again modified in amount, and collectors
whose salary exceeds $2,500 can receive no
compensation as superintendent of lights or dis-
bursing agent. Yet this law, like the preced-
ing appropriation laws, appropriates a sum
equal to two and a half per cent, commis-
sion upon the whole amount appropriated for
light-house service, and the Secretary might
therefore employ any agent he pleased ; and if
he was not the collector, he would be entitled
to full commissions. The same provisions are
contained in the appropriation Acts of 1851 (9
Stat., 608), 1852(10 Stat., 86), and 1858 (10
Stat.. 200).

It will be seen, from this history of the com-
plicated legislation on this subject, that, how-
ever varying the provisions may be in some
particulars, they are yet all founded on the
principles and policy of the Acts of 1822 and
1889, and that all the provisos respecting the
commissions to a revenue officer are confined
to his collection district, and its extra custom-
ary duties therein as agent.

The just and fair inference from these Acts
of Congress, taken together, is, that no discre-
tion is left to the head of a department to allow
an officer who has a fixed compensation any
credit beyond his salary, unless the service he
has performed is required by existing laws,
and the remuneration for them fixed by law.
It was undoubtedly within the power of the
department to order this collector, and every
other collector in the Union, to purchase the
articles required for light house purposes in
their respective districts, and to make the nec-
essary disbursements therefor. And for such
services he would be entitled to no compensa-
tion beyond his salary as collector, if that salary
exceeded $2,500.

But the Secretary was not bound to intrust
this service to the several collectors. He had a
right, if he supposed the public interest re-
quired it, to have the whole service performed
oy a single agent; for while the law authorizes
him to exact this service from the several col-
lectors, it at the same time evidently authorizes

185

463-4S1

SnPBBKB COCBT OF THS UlTITBD StATBS.

Dec. Tsbm,

him to commit the whole to an agent or agents
other than the collectors, by regulating the
commission which an agent stiaXl receive, and
appropriating money for payment of commis-
sions of two and a half per cent, upon the
whole amount authorized to be expended In this
service. And as' the collectors would by law
be entitled in some cases to nothing, and in
others to the small sum above mentioned, if the
service was performed by them in their respect-
ive districts, it is very clear, from the commis-
sions allowed, and the appropriation to pay
them, that he was at liberty to employ a differ-
ent agency, and pay the commissions given by
the law whenever he supposed the public
would be better served by this arrangement.

And the case as assumed in the record is pre-
cisely that case. The Secretary had no right,
under the laws upon this subject, to order this
or any other collector to perform this duty for
all the light-house ana collection districts.
The law has divided it among them, and the
Executive Department had no right to impose
it upon one. But he had a right, as we have
said, to employ an agent, instead of the col-
lector or collectors of the several districts; and
if he did employ one, the law fixed the com-
pensation,^ and appropriated the money to pay
it. He was not forbidden to employ a revenue
officer for this purpose; and, so far as his serv-
ices were performed for other districts, he
stood in the same relation to the (Government
as any other agent. The law forbidding com-
pensation, or reducing it to a small amount,
did not applj^ to this service. The agency was
entirely foreign to his official duties, and far
beyona the limits of the district to which the
law confined his official duties and power. And
as the department appointed him to perform a
duty required by law, for which the compen-
sation was fixed by law, and the money ap-
propriated to pay it, he is entitled to the com-
pensation given by law, if he has performed
the duty; for the Secretary has no more dis-
cretionary power to withhold what the law
gives, than he has to give what the law does
not authorize. The agency and services per-
formed in this instance nad no more connection
with his official duties and position than the

Surchase of a supply of shoes for the troops in
[exico, in the late war would have been, in
the absence of any other person authorized to
make such a purchase. And if such a duty
was requested or required of him by the head
of the proper department, and performed, no-
body would deny his risht to compensation, if
the law authorized and required the service
to be done, and fixed the compensation for it.
Upon the case, therefore, as the plaintiff in
error offered to prove it, we think the court
erred in refusing to admit the testimony.

Undoubtedly, Congress have the power to
prohibit the Secretary from demanding or re-
ceiving of a public officer any service in any
other office or capacity, and to prohibit the
same person from accepting or executing the
duties of any agency for the Government, of
any description, while he is in office, and to
deny compensation altogether, if the officer
chooses to perform the services; or they may
require an officer holding an office with a cer-
tain salary, however small, to perform any
duty directed by the head of the department.

however onerous or hazardous, without addi-
tional compensation. But the Legislative De-
partment of the Government have never acted
upon such principles, nor is there any law
which looks to such a policy, or -to such un-
limited power in the head of an Executive De-
partment over its subordinate officers.

No explanation is given of the principle
upon which the $400 additional compensation
was allowed. If the services were regarded as
extra and additional, and within the prohibition
of the law, then he was not entitled to this ad-
ditional allowance, because his salary exceeded
42,500, and nothing more than the salary fixed
ought to have been allowed him. But if they
were not within the prohibition, but for serv-
ices in a different agency, then he was entitled,
not merely $400, but to the commissions fixed
by law. This sum could not have been al-
lowed for supplies in his own district, exclud-
ing those for other districts, because, as re-
gards his own district, there is an express pro-
hibition as above stated. We, however, ex-
press no opinion upon that particular item; and
whether it is a proper allowance or not, must
be determined by the Circuit Court, when it
hears the evidence at the trial.

Far the reaaom aibow Btated, the judgment cf
the Oireuit Court must be retereed.

Dissenting, Mr. Justice Campbell* Mr, Jus-
tice 6rier» and Mr. Justice Catron.

Mr. Justice Campbell* dissenting:

I dissent from the opinion and judgment of
the court in this case. The opinion of the
presiding Judge of the Circuit Court, in my
judgment, contains an exact exposition of the
law of the case. Justices Catron and Grier au-
thorize me to say they concur in this dissent,
and we adopt that opinion as our opinion,
which is in the following words:

This is an action for money had and received
to the use of the United States, by Philip
Greely, Jr., the defendant's intestate, while
Collector of the Customs for the port of Boston
and Charlestown.

A» number of items were in question when
the case was opened, but in the process of the
trial all were aisposed of to the satisfaction of
both parties, save a charge made by the intes-
tate, of $17,968.92, as commissions on disburse-
ments made by him under the orders of the
Secretary of the Treasury, in the purchase of
oil and other materials for light houses. The
question is, whether the collector was entitled,
by law, to make this charge against the United
States for that service. Mr. Greely held the
office of collector from May 1, 1849, to May 1,
1853

By the Act of March 3. 1841. sec. 5 (5 Stat,
at L., 432), it was enacted that " no Collector
shall, on any pretense whatever,, hereafter re-
ceive, hold, or retain for himself* in the aggre-
gate, more than $6,000 per year, including all
commissions for duties, and all fees for storage,
or fees or emoluments, or any other commis-
sions, or salaries, which are now allowed by
law."

The Act of August 28, 1842, sec. 2 (5 Stat,
at L., 510), is as follows: " That no officer in
any branch of the public service, or any other
person, whose salary, pay, or emoluments, is

62 U. S.

18S8.

CoKYERSB V. United States.

468-481

or are fixed by law or regulations, shall receive
any additional pay, extra allowance, or com-
pensation, in any form whatever, for the dis-
Dursement of public money, or for any other
senrioe or duty whatsoever, unless the same
shall be authorized by law, and the appropria-
tion therefor explicitly set forth, that it is for
such additional pay, extra allowance, or com-
pensation."

It being admitted that Mr. Oreely was an
officer whose salary, pay. or emoluments, was
or were fixed by the law, and that he had re-
ceived its full amount of $6,000, independent
of the charge in question, it is incumbent on
the defendant to show, not only that the serv-
ice was authorized by law. but also that the
appropriation for that service explicitly sets
forth that it is for such additional pay, extra
allowance, or compensation. It is not enough
to find an Act of Congress authorizing a serv-
ice, and making an appropriation to pay for
it. This would be sufficient, provided the p«r-
son rendering the service were not an officer,
or other person, entitled to a fixed compensa-
tion. If he be, and he claims an extra com-
pensation for an extra service, he must produce
an appropriation which explicitly sets forth
that it is made for such additional compensa-
tion; that is, he must show not only that Con-
gress contemplated and provided for a service,
and payment therefor, but that they contem-
plated and explicitly provided that if it should
De rendered by one already entitled to a fixed
compensation, he should, nevertheless, receive,
in addition thereto, the compensation provided
for such service. And the addition of such
compensation to a fixed compensation is not to
be inferred from any equitable considerations,
but must be found explicitly declared in the
law itself.

Such, in my judgment, is the fair interpre-
tation of the language of this Act; and the his-
tory of the legislation of Congress upon this
subject of the extra compensation of officers
makes the interpretration, if possible, still more
plain and necessary.

The defendant relies on the following clause
in the Appropriation Act of March 8, 1849 (9
Stat, at L., 867): '*For superintendents' com-
missions, at two and one half per cent, on the
$466,930.08 appropriated above for light-house
purposes, $11,678.25. And the proviso con-
tained in the Act' making appropriation for
the civil and diplomatic expenses of the Gov-
ernment, for the year ending the 80th day of
June, Hi49, and for other purposes, approved.
Ac, which proviso is in the following words:
'Provided, that no part of the sum hereby ap-
propriated shall be paid to any person who re-
ceives a salary as an officer of the customs;
and from and after the 1st day of July, 1849,
1849, the said disbursement shall be made by
the Collectors of the Customs without compen-
sation, is hereby repealed.' "

The argument of the defendant's counsel is,
that the express repeal of this proviso is equiv-
alent to an explicit declaration that parts of
the sum appropriated by this Act might be
paid to persons who received salaries as officers
of the customs, and that it was not to be dis-
bursed by collectors without compensation.

But, certainly, this appropriation does not
"explicitly set forth that it la for additional

See 21 How.

pay, extra allowance, or compensation." If
this appears at all, it is only Inferentially; and
the inquiry is. whether it be a necessary infer-
ence that some pare of this sum was appropri-
ated as additional pay or extra compensation to
collectors who should perform the service of
superintendents of lights.

Now, the proviso which was repealed con-
sisteli of two parts. The first related exclu-
sively to commissions in the disbursement of the
appropriation for light house expenses made
for the fiscal year ending on the 80th day of
June, 1849; and it prohibited the payment of
any commissions out of the sum thus appropri-
ated, to any officer of the customs who received
a salary.

The second part of the proviso positively re-
quired the service of making disbursements as
superintendents of lights to be performed by
collectors of customs, after July 1, 1849, with-
out compensation. It left no discretion with
the Secretary of the Treasury to appoint any
other person to discharge this duty.

The repeal of the proviso left the ri^ht of
officers of the customs to participate m the
commissions for disbursing the appropriation
made for the year ending June 81, 1849, to
stand upon the law as elsewhere found ; and re-
stored to the Secretary of the Treasury the
power to appoint persons other than collectors
to make the disbursements; and if collectors
should be appointed, it left their right to com-
missions to depend on the law as elsewhere
found.

It must be admitted that this repeal might,
under some circumstances, indicate an inten-
tion to have collectors participate in these com-
missions. If they have been for the first time
deprived of them by the proviso, its repeal
would quite clearly show that their former title
was restored. But the contrary is true. Inde-
pendent of the proviso, they had no title to
this or any other extra compensation, and, by
force of the Act of August 2, lt542. could have
none, unless explicitly granted by the Act mak-
ing the appropriation; so that, unless lean say
that the repeal of the proviso either repeals the
2d section of the Act of 1842, or satisfies its
requirements by an explicit appropriation to
pay an extra compensation for an extra service,
the defendant has no title to the commission.
That the 2d section of the Act of 1842 is not
repealed by implication, by the repeal of the
proviso, is clear. There is no repugnance be-
tween this repeal and the Act of lB42. The
reasons for repealing the entire proviso may
have been that the Act of 1842 was broad
enough to cover the cases of extra compensa-
tion contemplated by the proviso, and so it was
not necessary, in so far as its object was to pro-
vide for those cases; and in so far as it required
the service to be performed by collectors only,
that it was inexpedient. But to amount to a
compliance with the 2d section of the Act
of 1842, it should have superadded to the re-
peal of the proviso, an explicit declaration that
the appropriation was intended as extra com-
pensation to those officers, having fixed salaries,
who might be selected to render the service.

There are two other views of this subject,
either of which would, in my judgment, be
sufficient to show that there is no lawful claim
to these commissions.

197

481-488

BuPBSIIB Cotr&T OV TRB UHiTlBD StaTBS.

Dbo. Tkbic,

The first is, that although Mr. Oreely was
superintendent of lights within a certain dis-
trict, extending round the Massachusetts Bay,
yet these commissions are charged on disburse-
ments made by him in the purcnase, under the
orders of the Secretary of the Treasury, of oil
and some other materials for the whole light-
house service of the United States. Now, the
appropriation made is for *' superintendents'
commissions. " If he did not render this service
as superintendent, but, aside from that employ-
ment, acted under the orders of the Secretary
of the Treasury in making lar^ purchases for
this service, no appropriation is n^e for pay-
ing him. It was, no doubt, an onerous and re-
sponsible duty, imposed upon him because he
happened to be at a place favorable for making
these purchases ; and this may constitute a claim
on the equitable consideration of Congress, es-
pecially if the imposition of this onerous duty
on him, instead of distributing it among all or
most of the superintendents of lights, was ad-
vantageous to the Government. But this is for
the consideration of Congress. It does not en
able me to say an appropriation to pay com-
missions by way of extra compensation was
actually made.

Besiaes, if the repeal of the proviso in the
Act of 1848 were held to amount to an explicit
declaration that collectors might participate in
the commissions of superintendents; by wav of
extra compensation, the inquiry would still re-
main, to what extent may they receive such
extra compensation? And this seems to me to
be answered by the Act of May 7, 1822, sec. 18
(8 Stat. L., 696), *'That no collector, surveyor,
or naval officer, shall ever receive more than
four hundred dollars annually, exclusive of his
compensation as collector, surveyor, or naval
officer, and the fines and forfeitures allowed by
law, for any services he may perform for the
United States in any other office or capacity."
In the case of Hoyt v. United States, 10 How.,
141, the Supreme Court considered this section
in force, and applied it to the case of a collect-
or who held office from March, 1888, to March,
1841, and I am not aware of its having been
since repealed. It was admitted that, aside
from the charge now in question, Mr. Greely
had received extra compensation to the extent
of $400 annually, for services performed for the
United States in a capacity other than that of
collector. It follows, that for services per-
formed in making these contracts and disburse-
ments, which were not within his duties as col-
lector, he can made no further charge.

What has thus been said relates exclusively
to the defendant's claims under the Act of 1849.
The subsequent Acts are so much more unfavor-
able to these claims, that I do not deem it nee
essary to enter into a particular discussion of
them. They are the Acts of Sept. 30, 1850 (9
Stat, at L., 588). March 8, 1851 (9 Stat, at L.
608). and Aug. 81, 1852 (10 Stat, at L., 86). I
have examined these Acts, and am satisfied each
of them deprives every collector, whose com-
pensation exceeds $2,500, of all participation
in these commissions, though they are required
to render the service of superintendents of lights
or disbursing agents in procuring supplies for
them.

Cited-7 WaU., 348; 91 U/8., 665; 97 U, 8^
BJatohf . PTm 840 ; 9 Cliffy 834, 88&, 880.

WILLIAM PENN. Plff. in Br„

PETER H. HOLME.

(See 8. C. 21 How.. 481-488.)

In ^eetment, plaintiff must shoto legal title —
equiUUde title not sufficient — document(MTy evi-
dence or possession — distinction between legal
and equitable remedies — untU patent issues^
fee is in government — Missouri practice.

The plaintiff in ejectment must In all oases prove
a leval title to the premises, in himself, at the time
of the demise laid in the declaratioo ; and evidence
of an equitable estate will not be sufficient for a
recovery.

This lefiral title the plaintiff must establish, either
upon a connected documentary cbalo of evidence,
or upon proofs of possession of suiBcient duration
to warant the legtd conclusion of the existence of
such written title.

The Constitution of the United States, in ere-
atinfiT and deflningr the Judicial power of the Gen-
eral Oovernment, establishes the distinction be-
tween law and equity: and a party who claims a
lefral title must proceed at law, and may proceed
aocordinff to the forms of practice in the state
court. •

But if the claim be an equitable one, he must
proceed according: to the rules which this court has
prescribed, retrulatinff proceedings in equity in the
courts of the United States.

The authorities are decisive a^nst the right of
the plaintiff in the court l)elow to a recovery upon
the facts disclosed in this record, which show tnat
the action in that court was instituted upon an
equitable and not upon a legal title.

The legal title to the land In question remains in
the original owner, the government., until it is in-
vested by the government in its grantee.

The patent is the superior and conclusive evi-
dence of the legal title.

Until it issues, the fee is in the government,
which by the patent passes to the grantee, and he
is then entitled to enforce the possession in eject-
ment.

A practice which has prevailed in some of the
States, and amongst them the State of Missouri, of
permitting the action of ejectment to be maintained
upon warrants for land, and upon other titles
not complete or legal in their character, can in no-
wise affect the Jurisdiction of the courts of the
United States, which, both by the Constitution and
bv Acts of Congress, are reqired to observe the
distinction between legal and equitable rights, and
to enforce the rules and principles of decision ap-
propriate to each.

Argued Feb, 18, 1869, Decided Mar, 11, 1859,

IN ERROR to the Circuit Court of the United
States for the District of Missouri.
The history of the case, and a statement of
the facts involved, appear in the opinion of the
court.

Messrs, H. R. Gamble and C. Gibson* for

plaintiff in error.

Messrs, A. Leonard and S. T. Glover,

for defendant in error.

Mr, Justice Daniel deli^red the opinion of
the court :

The defendant in error, as a citizen of the
State of Illinois, instituted an action of eject-
ment against the plaintiff in the court above
mentioned, and obtained a verdict and judg-
ment against him for a tract of land, described
in the declaration as a tract of land situated in
St. Louis County, being the same tract of
land known as United States survey No.
2,489, and located by virtue of a New Madrid
certificate No. 105, and containing six hundred
and forty acres.

Both the plaintiff and defendant in the dr-

M U. B.

1858.

Fenh v. BoLMti.

4S1-48S

cuit court trace the oriein of their titles to the
setUement claim of one JamesT. O'Carroll, who,
it is stated, obtained permission as early as the
6th of September, 1808, from the Spanish
authorities, to settle on the vacant lands in
Upper Louisiana, and who, in virtue of that
permission, and on proof by one Ruddell of
actual inhabitancy and cultivation prior to the
20lh of December, 1808, claimed the quantity
of one thousand arpents of land near the Mis-
sissippi, in the District of New Madrid. Upon
this application, the Land Commissioners, on the
13th of March, 1806, made a decision by which
they granted to the claimants one thousand
arpents of land, situated as aforesaid, provided
so much be found vacant there.

On the 14th of December, 1810, the Com-
missioners, acting again on the claim of O'-
Carroll for one thousand arpents, declare that
the Board erant to James x . O'Carroll three
hundred and fifty acres of land, and order that
the same be surveyed aS nearly in a square as
may be, so as to include his improvements.
The claim thus allowed by the Commissioners
was, bv the operation of tne 4th section of the
Act ol!^ Congress approved March 8, 1818, en-
larged and extended to the quantity of six
hundred and forty acres. Vide Stat, at* L., p.
813, Vol. II.

In the year 1812, a portion of the lands in the
County of New Madrid having been injured
by earthquakes. Congress, bv an Act approved
on ^e 17th of February, 1815, provided that
any person or persons owning lands in the
County of New Madrid, in the Missouri Terri-
tory, with the extent the said county had on
the 10th dav pf November, 1812, and whose
lands have been materially injured by earth-
quakes, shall be, and there hereby are author-
ized to locate the like Quantity of land on any
of the public lands of the said Territory, the
sale of which is authorized by law." Stat, at
L., Vol. III., p. 211.

On the 30th of November, 1815, the Recorder
of Land Titles for Missouri, upon evidence pro-
duced to him that the six hundred and forty
acre grant to James Y. O'Carroll had been ma-
teriallv injured by earthquakes, in virtue of the
Act of Congress of 1815, granted to said O'-
Carroll New Madrid certificate No. 105, by
which the grantee was authorized to locate six
hundred and forty acres of land on any of the
public lands in the Territorv of Missouri, the
sale of which was authorized by law. Upon
the conflicting claims asserted under this New
Madrid certificate, and upon the ascertainment
of the locations attempted in virtue of its
authority, this controversy has arisen.

Each party to this controversy professes to
deduce title frofh the settlement right of O'-
Carroll, through meme conveyances proceed-
ing from him. With respect to the construc-
tion of these conveyances, several prayers have
been presented by both plaintiff and defendant,
and opinions as to their effect have been ex-
pressed bv the circuit coUrt; but as to the
rights really conferred, or intended to be con-
ferred, bv these transactions, it would, accord-
ing to the view of this cause taken by this
court, be not merely useless, but premature
and irregular to discuss, and much more so to
undertake to determine them.

ThiB is an attempt to assert at law, and by

Sm 21 How,

a legal remedy, a right to real property — an
action of ejectment to establish the right of
possession in land.

That the plaintiff in ejectment must in all
cases prove a legal title to the premises in him-
self, at the time of the demise laid in the decla-
ration, and that evidence of an equitable estate
will not be sufficient for a recovery, are prin-
ciples so elementary and so familiar to the pro-
fession as to render unnecessary the citation of
authority in support of them. Such authority
may, however, be seen in the cases of Good-
me V. J<mes, 7 T. R, 49; of Doe v. Wroot, 5
East., 132; and of Boe v. Reade, 8 T. R, 118.
This legal title the plaintiff must establish
either upon a connected documentary chain of
evidence, or upon proofs of possession of suffi-
cient duration to warrant the legal conclusion
of the existence'of such written title.

By the Constitution of the United States, and
by the Acts of Congress organizing the federal
courts, and defining and investing the jurisdic-
tion of these tribunals, the distinction between
common law and equity jurisdiction has been
explicitly declared and carefully defined and
established. Thus, in sec. 2, art. 8, of the Con-
stitution, it is declared that ''the judicial power
of the United States shall extend to all cases in
law and equity arising under this Constitution,
the laws of the United States/' <&;c.

In the Act of Confess "to establish the ju-
dicial courts of the United States, ** this distri-
bution of law and equity powers is frequently
referred to; and by tlie 16th section of that
Act, as if to place the distinction between those
powers beyond misapprehension, it is provided
"that suits in equity shall not be maintained in
either of the courts of the United States in any
case where plain, adequate, and complete rem-
edy may be had at law, " at the same time affirm-
ing and separating the two classes or sources of
judicial authority. In every instance in which
this court has expounded the phrases, proceed- .
ings at the common law and proceeding in
equity, with reference to the exercise of the
judicial powers of the courts of the United
States, they will be found to have interpreted
the former as signifying the application of
the definitions and principles and rules of the
common law to rights and obligations essen-
tially legal ; and the latter, as meaning the ad-
ministration with reference to equitable as con-
tradistinguished from legal rights, of the equity
law as defined and enforced by the Court of
Chancery in England.

In the case of BobinMn v. CampbeU, 3
Wheat., on page 221, this court have said:
" By the laws of the United States, the Cir-
cuit Courts have cognizance of all suits of a
civil nature at common law and in equity, in
cases which fall within the limits prescribed
by those laws. By the 24th section of the Ju-
diciary Act of 1789 it is provided, that the
laws of the several States, except where the
Constitution, treaties or statutes of the United
States shall otherwise provide, shall be re-
garded as rules of decision in trials at common
law in the courts of the United States, in cases
where they apply. The Act of May, 1792,
confirms the modes of proceeding then used at
common law in the courts of the United States,
and declares that the modes of proceeding in
suits in equity shall be according to the prin-

199

481--188

SUFRBMB 6>URT OF THB tlKITBD ^TATlEA.

Dec. TkrIT,

ciples, rules and usages, which belong to
courts of equity, as contradistinguished from
courts of common law, except so far as may
have been provided for b^ tne Act to estab-
lish the judicial courts of the United States.
It is material to consider whether it was the
intention of Congress by these provisions to
confine the courts of the United States in their
mode of administerinff relief, to the same
remedies, and those only, with all their inci-
dents, which existed in tiie courts of the re-
spective States; in other words, whether it was
their intention to give the party relief at law.
where the practice of the state courts would
give it, and relief in equity onl^ when, ac-
cording to such practice, a plam, adequate
and complete remedy could not be had at law?
In some States in the Union no court of chan-
cery exists to administer equitable relief. In
some of those States, courts of law recognize
and enforce in suits at law all equitable rights
and claims which a court of equity would
recognize and enforce; in others, all relief is
denied, and such equitable claims and rights
are to be considered as mere nullities at law. A
construction, therefore, that would adopt the
state practice in all its extent, would at once
extinguish in such States the exercise of equi-
table jurisdiction. The Acts of Congress have
distinguished between remedies at common
law and equity, yet this construction would
confound them. The court therefore think
that to effectuate the purposes of the Legisla-
ture, the remedies in the courts of the United
States are to be at common law or in equity —
not according to the practice in the state
courts, but according to the principles of com-
mon law and equity, as distinguished and de-
fined in that country from which we derive
our knowledge of those principles."

In the case of Parsons v. Be^ord et cU., 8
Pet., on pp. 446, 447, this court, in speaking of
the seventh amendment of the Constitution,
and of the state of public sentiment which
demanded and produced that amendment, say :

" The Constitution had declared, in the id
article, that the judicial power should extend
to all cases in law and equity arising under
this Constitution, the laws of the United
States, and treaties made, or which shall be
made under their authority, &c. It is well
known that in civil suits, in courts of equity
and admiralty, juries do not intervene, and
that courts of equity use the trial by jury only
in extraordinary cases. When, therefore, we
find that the amendment requires that the
ri^ht of trial by jury shall be preserved in
suits at common mw, the natural conclusion
is, that the distinction was present in the
minds of the framers of the amendment. By
common law, they meant what the Constitu-
tion denominated in the 3d article law, not
merely suits which the common law recognized
amon^ its old and settled proceedings, but
suits in which legal rights were to be ascer-
tained and determined, in contradistinction
to those where equitable rights alone were rec-
ognized and equitable remedies administered."

The same doctrine is recognized in the case
of Strother v. Lticas, in 6 Pet., pp. 768. 769 of
the volume, and in the case of Parish v. JSCUs,
16 Pet., pp., 453, 454. So, too, as late as the
year 1850, in the case of Bhmett v. Butter-

200

worth, reported in the 11th of Howard, 669, the
C?iief Justice thus states the law as applicable
to the question before us:

*'The common law has been adopted in
Texas, but the forms and rules of pleading in
common law cases have been abolished, and
the parties are at liberty to set out their re-
spective claims and defenses in any form that
will bring them before the court; and as
there is no distinction in its courts between
cases at law and in equity, it hasbeen insisted
in this case, on behalf of the defendant in
error, that this court may regard the plaint-
iff's petition either as a declaration at law or a
bill in equity. Whatever may be the laws of
Texas in tlus respect, they do not govern the
proceedings in the courts of the United States;
and, although the forms of proceedings and
practice in tne state courts have been iSopted
in the district court, yet the adoption of the
state practice must not be understood as con-
founding the principles of law and equity, nor
as authorizing legal and equitable claims to be
blended togetner in one suit. The Constitu-
tion of the United States, in creating and de-
fining the judicial power of the General Qov-
emment, establishes this distinction between
law and equity, and a party who claims a legal
title must proceed at law, and may, undoubt-
edly, proceed according to the forms of prac-
tice in such cases in the state court. But if
the claim be an equitable one, he must pro-
ceed according to the rules which this court
has prescribed, regulating proceedings in equity
in the courts of the United States."

The authorities above cited are deemed de-
cisive against the right of the plaintiff in the
court below, to a recovery upon the facts dis-
closed in this record, which show that the ac-
tion in that court was instituted upon an equi-
table and not upon a legal title. With the at-
tempt to locate O'CarroTrs New Madrid war-
rant No. 150, in addition to its interference
with what was called the St. Louis common,
there were opposed five conflicting surveys.
In consequence of this state of facts, the Com-
missioner of the General Land Office, on the
19th of March, 1847, addressed to the Survey-
or-General of Missouri the following instruc-
tions: "If, on examination, it should satisfac-
torily appear to you that the lands embraced
by said surveys were at the date of O'CarroU's
location reserved for said claims, the O'Carroll
location must yield to them, because such land
is interdicted under the New Madrid Act of the
17th of February, 1815; but if, at the time of
location, either of the tracts was not reserved,
but was such land as was authorized by the
New Madrid Act to be located, the New Mad-
rid claim No. 105 will of course hold valid
against either tract in this category. The fact
on this point can be best determined by the
Surveyor-General from the records of his office,
aided by those of the Recorder. If there be no
valid claim to any portion of the residue of the
O'Carroll claim, and such -residue was such
land as was allowed by the New Madrid Act
of 17th of February, 1815, to be located, on
the return here of a proper plat and patent cer-
tificate for said residue, a patent will issue."

At this point the entire action of the Land
Department of the Government terminated.
No act is shown by which the extent of the St.

1859.

ClBABWATBR T. MBRBDItH.

48(M08

Louis common, said to be paramount, was as-
ascertained ; no information supplied with re-
spect to the validity or extent of the conflict-
ing surveys, as called for by the Commissioner;
no plat or patent certificate, either for the
whole of the warrant or for any residue to be
claimed thereupon, ever returned to the Gen-
eral Land Office, and no patent issued. The
plaintiff in the Circuit Court founded his
claim exclusively and solely upon the New
Madrid warrant.

The inouiry then presents itself, as to who
hold the legal title to the land in question.
The answer to this question is, that the title
remidns in the original owner, the Govern-
ment, until it is invested by the Government
in its grantee. This results from the nature of
the case, and is the rule affirmed by this court
in the case of BagnsU v. BroderuM, in which
it is declared, that *' Congress has the sole
power to declare the dignity and effect of titles
emanating from the united States; and the
whole lesiglation of the (Government in refer-
ence to the public lands declares the patent to
be the superior and conclusive evidence of the
legal title. Until it issues, the fee is in the
Government, which by the patent passes to the
grantee, and he is entitled to enforce the pos-
session in ejectment." 18 Pet., p. 486.

A practice has prevailed in some of the States
(and amongst them the State of Missouri) of
permitting the action of eiectment to be main-
tained upon warrants for land, and upon other
titles not complete or legal in their character;
but this practice, as was so explicitly ruled in
the esse of Bennett v. Buttertoorth, 11 How.,
can in nowise affect the jurisdiction of the
courts of the United States, who, both by the
Constitution and by the Acts of Congress, are
required to observe the distinction between legal
and equitable rights, and to enforce the rules
and principles of decision appropriate to each.

The judgment of tJie Circuit Court i% to be re-
versed, wUh eo9te.

Cited-23 How.. 249; 24 How., 426,
aia, 860 ; 13 WaU., 104.

HIRAM CLEARWATER. Plff. i

SOLOMON MEREDITH, PLEASANT

JOHNSON AND THOMAS TYNER.

(See 8. C, 21 How., 481Mg3,)

Defendant in State may be sued, tftough others
in other States, 'interested — Uitter Twt prefu-
dieed — defendant citizen of same State with
plainHf— demurrer to counts on guaranty.

Where one or more defendants sued were citi-
zens of the State, and were Jointly bound with citi-
xens or other States who did not appear,the plaintiff
had a ritfht to prosecute his suit to judgment
•gainst those served.

But such judflrment not to prejudice parties not
ierved or who do not voluntarily appear.

The plaintiff may sue in the circuit court any of
the defendants, aJthoug'h others may be Jointly
bound by the contract, who are oitlasens of other
States.

Defendants who are citizens of otticr States are
not prejudiced by this procedure, but only those
on waom process has been served.

Bee 21 How.

If one of the defendants be a citizen of the same
State with the plaintiff, no Jurisdiction can be ex-
ercised as between them, and no prejudice to the
riflrhts of either can be done.

A demurrer, filed to counts on aflruaranty, does
not bring up the validity of that instrument for
decision. It must be specially pleaded, with suit-
able averments.

Argued Mar. S, 1869. Decided Mar. 11, 1859.

IN ERROR to the Circuit Court of the United
States for the District of Indiana.

This action was brought in the court below,
by the plaintiff in error, to enforce a certain
contract of guaranty in writing.

The defendants having demurred to the dec-
laration, the court below sustained the de-
murrer and entered a judgment in their favor;
whereupon the plaintiff sued out tliis writ of
error.

A further statement of the case appears in
the opinion of the court.

Mr. 6. E. Pasfht for plaintiff in error:

The first cause of demurrer is not well taken.
The declaration declares that the plaintiff is a
citizen of Ohio, and that the defendants are
citizens of Indiana. No question could arise
except in regard to the non-joinder of Cal^b B.
Smith, as defendant, but that is excused by the
1st section of the Act approved Feb. 28, 1889.

5 U. S. Stat, at L., 821, 822; Commercial
Bank v. Slocomb, 14 Pet., 60.

Besides, the non-loinder of a party defend-
ant must be pleaded in abatement.

1 Chit. PL, 46.

It cannot be objected by demurrer.

Again; if this non- joinder were fatal to the
iurlsdiction of the court, as the demurrer, al-
leges there should have been no judgment for
costs. That is palpably erroneous.

Mr. R. W. Thompson* for defendants in
error:

This action is brought upon a joint contract
executed by the defendants in error and Caleb
B. Smith. But three of theseparties are sued
— Smith not being joined. This omission is
fatal, ^ inasmuch as the declaration does not
show a case of which the circuit court had
jurisdiction.

The rule is this: When there are two or
more joint plaintiffs or deiendants. each of the
plaintiffs must be capable of suin^, and each
of the defendants of being sued, In order to
support the jurisdiction. Rtnk of Vieksburg v.
Slocomb, 14 ret., 64, where this interpretation
is given to Act of Feb. 28. 1889 (5 Stat, at L.,
821). The declaration here should show that
Smith is a citizen of a different State from the
plaintiff; for, in the federal courts,' jurisdiction
must be shown. If it is not shown, the objec-
tion is fatal at any stage of the case. It needs
no plea. And this is the ground, evidently,
upon which the demurrer was sustained below.

Mr. Justice McLean delivered the opinion
of the court:

This is a writ of error to the Circuit Court
of the United States for the District of In-
diana.

The plaintiff, who is averred to be a citizen
of the State of Ohio, brought his action against
Solomon Meredith and Thomas Tyner, citizens
of Indiana, on the 12th July, 1853, together
with Caleb B. Smith, who, at the time of the

801

489^08

BUFBBMB COUBT OV TBB UhXTBD STATBfi.

Dec. Tbbm,

commencement of this suit, was not a citizen
of the State of Indiana, and is therefore not
joined as a defendant herein, &c.

The declaration has three counts, one of
which contains the following guaranty:

** Whereas Hiram Clearwater, of the City of
Cincinnati, on the 6th of Ma^, 1858, contracted
with the Cincinnati, Cambndge and Chicago
Short Line Railway Company for the sale of a
tract of land situate in Wayne County, Indi-
ana, lying on the national road, about four
miles east of Cambridge City, and adjoining
the lands of John Jacobs and others, contain-
ing three hundred and twenty acres, for the
consideration of $10,000, to be paid in the
capital stock of said Company at par; and
whereas, in such contract of sale, it was agreed
that said Company should furnish to said Clear-
water a guaranty that the capital stock of said
Railway Company should be at par within one
year from the completion of the entire line of
said road : Now, in consideration that the said
H. Clearwater has, with the consent of the said
Company, and at our request, executed a deed
of conveyance to Solomon Meredith for said
land, to whom the same has been sold by the
said Company, we, the undersigned, hereby
guaranty that the said stock of said Company,
which has been issued to said Clearwater m
pursuance of said contract, shall be worth par
m the City of Cincinnati within one year from
the time the said railroad shall be completed
from Cincinnati to Newcastle, Indiana, and
that said road shall be completed within two
years from the Ist day of October, 1858, and
signed by Pleasant Johnson, S. Meredith, Caleb
B. Smith and Thomas Tyner."

The defendants, by counsel, come and say
the declaration of the said plaintiff, and the
counts therein contained, are seyerally insuffi-
cient in law to enable said plaintiff to have and
maintain his action against said defendants;
and for cause of demurrer shows to the court
the following: «

1. The jurisdiction of the court is not shown
by proper averment.

2 No consideration is shown for the under-
taking.

8. The several counts do not contain facts
sufficient to constitute a cause of action ; where-
fore the defendants pray judgment, &c.

If this be regarded as a plea to the jurisdic-
dictlon of the court, it is argued that the suit
is brought on a joint contract executed by the
defendants in error, when only two of them
were served with process, and the third one,
Caleb B. Smith, who, at the time of the com-
mencement of the suit, was not a citizen of the
State of Indiana, and is therefore not joined as
a defendant herein, &c.

The Ist section of the Act of February 28th,
1830, provides that " where, in any suit at law
or in equity commenced in any court of the
United States, there shall be several defend-
ants, any one or more of whom shall not be in-
habitants of or found within the district where
the suit is brought, or shall not voluntarily ap-
pear thereto, it shall be lawful for the court to
entertain jurisdiction, and proceed to the tria^
and adjudication of such suit between the par-
ties who may be properly before it; but the
judgment or decree rendered therein shall not
conclude or prejudice other parties not regu-

i09

larly served with process, or not voluntarily ap-
pearing to answer."

In the case of TAs Bank of Vtck^mrg v. Slo-
comb, 14 Pet., 05, it is said the 11th section of
the Judiciary Act declares that no civil suit
shall be brought, before either of said courts,
against an inhabitant of the United States, by
any original process, in any other district than
that whereof he is an inhabitant, or in which
he shall be found at the time of serving the
writ.

It has been held that this is a' personal privi-
lege of not being sued out of the district in
which the defendant may live, or in which he
shall be found on serving the writ, and that it
may be waived by the defendant. And it is
saia, in the above opinion, *' that it did not con-
template a change in the jurisdiction of the
courts, as it regards the character of the par-
ties, as prescribed by the Judiciary Act, and ex-
pounded by this court — that is, that each of the
plaintiffs must be capable of suing, and each
of the defendants capable of being sued ; which
is not the case in this suit, some of the defend-
ants being citizens of the same State with the
plaintiffs."

It is well known that the Act of 1889 was in-
tended so to modify the jurisdiction of the cir-
cuit court as to make it more practical and ef-
fective. Where one or more of the defendants
sued were citizens of the State, and were jointly
bound with those who were citizens of other
States, and who did not voluntarily appear, the
plaintiff had a right to prosecute his suit to
judgment against those who were served with
process; but such judgment or decree shall not
prejudice other parties not served with process,
or who do not voluntarily appear.

Now, It is too clear for controversy, that the
Act of 1839 did intend to chanee the character
of the parties to the suit. The plaintiff may sue
in the circuit court any part of the defend-
ants, although others may be jointly bound by
the contract, who are citizens of other States.
The defendants who are citizens of other States
are not prejudiced by this procedure, but those
on whom process has been served, and who are
made amenable to the jurisdiction of the court.

And in regard to those whose rights are in
no respect affected by the judgment or decree,
it can oe of no unportance of what States they
are citizens. If one of the defendants should
be a citizen of the same State with the
plaintiff, no jurisdiction could be exercised as
between them, and no prejudice to the rights
of either could be done.

The plea to the jurisdiction seems not to be
well taken, and it cannot be sustained.

In the case of Hill v. Smith et al. , decided at
the present term, this court held that the de-
murrer filed to the counts on the guaranty did
not bring up the validity of that instrument for
the action of the court, and that it must be spe-
cially pleaded, with suitable averments. And
the court reversed the judgment, and remanded
it to the circuit court, with leave, on the pay-
ment of costs, to move to amend the pleadings,
so as to raise the questions on the guaranty.
The same order is made in the present case.

Judgment reverted,

ated~l Blaok, 571 ; 08 U. 8m 804.

•2I7.S,

1858.

Lba t. Polk Couhtt Coffeb Ck).

49d>50d

WILLIAM P. LEA, Appt,,

THE POLK COUNTY COPPER COM-
PANY BT. AL.

(See S. C.T 21 How., 499-606.)

Impeffeet ctcknawledgment— alteration in instru-
ment, not sufficient to put purchaser on inquiry
— presumption of performance of official duty
— wTiere important rights have grown up un-
der legal title, it will not be interfered with —
innocent purduisers protected.

Where, in the certificate of proof of deed, the
subscribinir witness does not say that the grantor
acknowledged the same on the day it bears date ;
but the deed shows the date the probate is cov-
ered by the provisious ot Tennessee Act of 1846.

The letters **ark/' crowded after the letter P, in
William Park Lea's name, at the various places
where this alteration is found in the patent, are
no< sui&cient to put the purchasers on inquiry.

When the register put tbose letters there, the
presumption is that he did so in the course of his
official duty. He who impeaches the act as illegal,
must prove it to be'jso.

All the incipient steps, authorizing the register
to issue the grant, the Governor to sign it, and the
Secretary to attach the great seal, are presumed to
have been regular; nor la the purchaser required
to look behind the patent.

Where the legal title was vested by the grant,
and has thus stood for a number of years, and im-
portant rights have grown up under it, a court of
equity will not interferci on generfU principles of
Justice.
/^ If the equity conferred by the entry was in Will-
/ iam Pinkney Lea, the complainant, and the patent
I issued in the name of William Park Lea, and the
I Mining Company, or those under whom they claim,
I innocently and ignorantly purchased from the lat^
I ter and paid for the property, and took legal con-
I veyancee for it from him, with an honest belief
I that they were acquiring a legal title from the true
I owner, then the complainant cannot be heard to set
V up his equity behind the grant to overthrow the
^^fiurchase.

And the respondents, the Mining Company) might
buy in the legal title after the3' had notice, if they
were innocent purchasers, holding under others.

Although the deed was not registered, adverse
possession was in itself notice that the grantee heid
the laud under a title, the character of which the
complainant was bound to ascertain.

By the settled construction of the Tennessee Act
of Limitations, an unregistered deed is a sulficient
title on which the bar can be founded.

If two possessions were continuous for the whole
term required by the Act of Limitation, then the
bar was formed, and the defense complete.

The Tennessee Act of Limitation was intended
to protect and confirm void deeds purnorting to
convey an estate in fee simple, where seven years*
adverse possession had been held under them.

Argued Mar. S, 1859. Bedded, Mar. 11, 1859.

APPEAL from the Circuit Court of the Unit-
ed States for the Eastern District of Ten-
nessee.

The bUl in this case was filed in the court be-
low, by the appellant, to recover 80 acres of
land, which he claims as general enterer from
the State of Tennessee.

The court below having dismissed the bill,
with costs, the complainant took an appeal to
this court.

A further statement of the case appears in
the opinion of the court.

NoTK.— liequfoite^ of Adverse possession. See note
to Ricard v. Williams. ^0 U. S. (7 Wheat.), 69

Oceupaney necessary to constitute advene posses-
sion, dee note to Swing v. Burnett, a6 U. S. (U

See 81 How.

Messrs. J. M. Campbell* Chas. Ready*
S. S. Baxter and F. P. Stanton* for the

appellant:

1. As to the Satute of Limitations. The
only color of title that can be set up, is the
deed of Park Lea to John Davis of June 18,
1»46. But if William Pinkney Lea was in
fact the grantee of the land in dispute, and if
the grant was made to him and not to Park
Lea, it will be shown then by force of the
grant that Pinkney was in possession and
seised at the time the deed was executed, and
the deed is void in Tennessee as champertous.

U. 8. V. Arredondo, 6 Pet., 691, 743 ; Jack-
son y. SeUick, 8 Johns., 269.

It is void on the same ground, because of
Nelson Carter's possession at the time of the
date of the deed of the upper part or northern
40 acres claimed by the trustees of the Mary's
Company. The writing claimed to be color of
title, must be supposed by the party holding it
to communicate title.

Dyche V. Qass, 3 Yere., 399; Gregg v. Sayre,
8 Pet.. 253; Wright v. IdaUison, 18 How., 50.

The circumstances make it very doubtful if
Davis supposed this deed gave him title.

Counsel then examined the proof of seven
years' continuous adverse possession subsequent
to the d^d, and argued that the evidence did
not sustain the claim.

2. As to the defense that the appellees are
purchasers for a valuable consideration with-
out notice. The grant from the Slate of Ten-
nessee to William Park Lea, is admitted to
bear on its face conclusive evidence that it had
been tampered wit& in a vital part. Parties
taking a title upon the face of which such a
material alteration appears, cannot claim to be
innocent purchasers.

Markham v. Gonaston, Cro. Eliz., 626; Chew
V. Barnet, 11 Serg. & R., 889; Polk v. Wen-
dell 5 Wheat., 809.

Moreover, the defense of Park for considera-
tion without notice, is misconceived in its ap-
plication to this case. The party setting up
the defense, claimed under an alleged grant to
William Park Lea. The grant was to William
P. Lea, and was by alteration made to read to
William Park Lea. If. however, the William
P. Lea was William Pinkney Lea, then a con-
veyance by William Park Lea, not only does
not convey the legal title, but does not convey
the equitable title. The case, therefore, comes
within the scope of ViUtier v. Hinde, 7 Pet. , 252.

See, also, HallettY. Collins, 10 How., lU.

It is quite certain that the defendants were
not innocent purchasers. The interpolated
grant put them on inqui^.

Kenjiedy v. Green, 8 Myl. & K,, 719.

Counsel then reviewed the evidence in the
case, and endeavored to show that the William
P. Lea of the deed was William Pinkney
Lea, and concluded. The above conclusively
shows that the complainant entered the land in
dispute, and that the grant was made to him,
ana knowledge of this fact is to be imputed to
the defendants, for reasons ajready set forth.

Messrs. R. H. Smith, Thomas C. Lyon
and Horace Maynard, for the appellees:

1. The proof, it is respectfully submitted,
does not by any means support the main fact
relied on by the complainant, namely: that he
entered the land.

m^m

SuPfilBldB COITBT Olf tHB UmtKD StaTM.

Dbc. Tsbh.

2. The title aside, the defendants are fully
protected by the Statute of Limitations of 1819,
ch. 28, sections 1 and 2, C. & N.. 442.

The evidence shows adverse possession for
seven years and upwards. That the deed from
Park Lea to John Davis is genuine and bears
on its face the true date, admits of no doubt.

1. In addition to its probate by the subscrib-
ing witnesses, it is proved in common law form
to be genuine, by several unimpeachable wit-
n esses. It is exhibited and has no erasures or
alterations. The answers of the respondent are
responsive to the bill. They each and all say
it was genuine, and was executed, as they be-
lieve, at the time it bears date.

8. The deed being proved to be unquestionably
genuine, the small consideration is most preg-
nant proof that it was executed previous to the
discoveiT of copper ore in that vicinity. As to
the valimty of this defense, it is not iil the
least degree material that there should be sub-
scribing witnesses or probate and registration.
It may be forced, invalid or void, yet posses-
sion under it K>r seven years, vests the title in
the holder to the extent of the boundaries de-
scribed in it.

Wallace v. Ednnum, 1 Humph., 450; Jones
V. Perry, 10 Yerg., 81, 83; Whiteside y. Single-
tan, MeiRS, 224; WiUiams v. Wilson, M. &
Yerg., 248, 264,

The complainant is not within any saving
clause of the Statute of 1819, and is therefore
barred, if he had even proved his entry and
equitable rieht. This defense, then, every-
thing else aside, id, by an unbroken series of ad-
judications in Tennessee, absolute and com-
plete.

Love V. Love, 2 Yerg.. 288; Wallace v. Bdn-
num, 1 Humph., 448 ; Vance v. Johnson, 10
Humph., 214; BlanUnY, WhiUaker, 11 Humph.,
813; Marry. Chester, 1 Swan., 416; Keatony.
Thomasson, 2 Swan., 188; N<mis v. EVis, t
Humph., 463.

8. It is a well-established principle of equity
Jurisprudence, that when one has purchased
under an apparently legal title for a full, val-
uable consideration actually paid, without no-
tice, either actual or constructive, of any out-
standing equity, his title shall not by such
equity be defeated. The equities being equal,
the legal title shall prevail.

1 Story, Eq. Jur., 7th ed.. sec. 64, ch. 108,
165; WarrickY, TTamc*, 8 Atk., 290; ifoWiwi
V. MenniU, 2 Atk., 18; Weit v. Errissey, 2 P.
Wms., 849; PoweU v. Price, 2 P. Wms.. 533.

Admitting, for the sake of argument, that
the respondents were put on their inquiry by
the face of the oris^inal grant, to what would
that inquiry have Ted ? If they had gone to
the Register, he would have informed them
that he made the alteration at the instance and
request of the parties in interest. He would
have shown them alterations of other grants in
favor of the complainant, accepted by nim. If
they had gone to the entry taker's office, they
would have discovered that the location was
made in the name of William P. Lea, and
that this desiffnation was equally applicable to
William Park Lea as to complainant. They
would have found in books B and C, that
William Park Lea was the true enterer. If
they had inquired of complainant himself,
what answer could he have returned t

t04

Mr, Justice Catron delivered the opinion of
the court:

There stood on the record book an entry for
80 acres, in the name of William P. Lea, No.
5446, dated April 5. 1842.

A patent issued, founded on this entry, dated
21st August. 1842, Ko. 5744.

This patent is in the name of William Park
Lea. It was signed by the Governor, counter-
si^ed by the Secretary of State, and sealed
with the jpeat seal of the State.

As originally filled up, it was in the name of
William P. Lea, and was altered to William
Park Lea, by adding the letters " ark " to the
P. This was done by the Register of the Land
Office, whose duty it was to prepare tlis vtknt
for the signatures' of the Govern^
tary ; and the Act of affixing the
wmch eave it validity as against
vested her title, and vested it in th|
the patent thus executed being
him.

William Park Lea and Willi
Lea wrote their names alike. Wir
the latter always, and the f ormet
alUiough he often signed his name ^,
Lea. The Register added the lett
the middle name, to distinguish bf
as both had entered lands in th<
office, and confusion prevaih
was the proper owner. This isj^
the Register's evidence. In fillip
Kos. 6260, 6258, and 5764, they
in the name of William Park
ister scraped out the letters *' ar^
the patents in the name of Willitj
cause the lands had been cnterf]
Pinkney Lea.

No. 6764 of these patents w«^
the same day (2l8t August, 1841
(No. 5744) here in dispute was:
the letters "ark "added to tb
other two (Nos. 6260 and 625(
December 8th. 1842. Five
filled up properly in the nam
Lea. This was all done in the
of 1842, and the grants were f (|
made in April of that year, i
Office. The respective claim
to each other, and familiarly
ister. The entries had all bee
recorded in the name, " Willi

That this was honestly done'
is not open to dispute. He h
sition in great detail, and ac«
course of proceeding entirely
tion, so far as his integrity is co7 ,

This patent (No. 5744) the bill Ifi j
reformed so as to stand in the na^' '.
P. Lea. the complainant, and to If
action of ejectment pending in the l ^^
by the complainant, against the s^^ffiMts;
and second! if said grant shall be found to
have been issued to the person not entitled to
the land, that then the court will devest the
title to the respondents, and vest it in the com-
plainant, so that he may use the decree on the
trial of his action of ejectment.

8. The bill also prays, that the court may
remove impending clouds from the complaifl-
ant's Utle by declaring all the alleged titles of
the respondents, or either of» them void, and
direct the possession of said lands to be sar*

U.S*

1859.

Lba. v. Polk Codnty Coffsr Co.

498-506

rendered to the complaiiiant, together with a
prayer for further and general relief.

To the relief sought, among other defenses
(set up in their answers), the respondents rely
on the fact that they claim under one John
Davis, who purchased from William Park
Lea. and took title bv a deed in fee with a
general warranty of title for the land in dispute,
and that Davis, their vendor, purchased and
paid for the land to said William Park Lea,
without any notice or knowledge that the com-
plainant^ had any equity in the land, or set up
claim thereto.

This deed is produced, dated June 18th, 1848,
and appears to have been duly executed by
William Park Lea, and the consideration
II money was paid to him by John Davis. It is
not pretended that John Davis had anv notice
of the complainant's claim when the deed was
executed ; the complainant had then no knowl-
ed^ hlniself that he had any interest in the
land.

One objection to this deed is, that it was not
duly proved, and could not be lawfully regis-
tered according to the laws of Tennessee. In
the certificate of probate of Elias Davis, one of
the subscribing witnesses, the clerk does not
say the witness swore that the grantor acknowl-
edged the same on the day it bears date. The
other witness so proves. Now, as the deed
shows the date, and the certificate of probate
says the grantor acknowledged it for the pur-
poses therein contained, the probate is covered
by the provisions of the Act of 181G (ch. 78,
. Nicholson's statute Laws, 242).

Caldwell, Keith <& Mastin, purchased from
John Davis in the year 1852, paid the purchase
money ($6,000), and took a deedMn feesimi)le.
with a covenant of general warranty of title
for the land in dispute; and they also rely on
the plea that they were bona fide purchasers of
the legal title, or what purported to be so; and
this allegation is established by the proof, un-
less it be true that the letters *' ark," crowded
after the letter P, in William Park Lea's name,
at the various places that this alteration is
found in the patent, was sufficient to put the
purchasers on inq^uiry. Now, if they had in-
quired of the Register, he could only have told
them that he put the lettera there in the course
of his official duty; but when, he could not
say, this being what he proves here. Then the
presumption comes in. that, as a public officer,
the Register did his duty, and he who impeaches
the act as illegal must prove the allegation.
On this assumption, the Register filled up the
patent as it is now found, before the (Governor
signed it, and the seal of State was attached —
that is to say, when the patent bears date.

Then, again, all the incipient steps authoriz-
ing the Register to issue the grant, the Governor
to sign it, and the Secretary to attach the great
seal, are presumed as having been regular; nor
was the purchaser required to look behind the
patent.- BoffneUy. Broderick, 18 Pet., 448.

The bill, of necessity, admits that the legal
title was vested in WUliam Park Lea by the
grant as it now stands ; as, on any other assump-
tion, the complainant would have his remetly
at law, and must be turned out of court. The
title has thus stood since 1842; important
rights have grown up under it, with which a
court of equity cannot interfere, on general

See 21 How.

principles of justice. 1 Story's Com. on £q..
sec. 64, ch. o4 d. We mean to say, that if \
the equity conferred by the entry was in Will- \
iam rinkney Lea, and the patent issued in the
name of William Park Lea, and the Mining
Company, or those under whom they claim,
have innocently and ignorantly purchased and
paid for the property, and look legal convey-
ances for it, with an honest belief that they
were dealing for and acquiring a legal title
from the true owner, then the complainant can-
not be heard to set up his equity behind the
grant to overthrow the purchase. 1 Story's
Ik)., 454. And so the respondents, the Mining
Company, might buy in the legal title oi
William Park Lea, after they had notice, if
they were innocent purchasers, holding under
John Davis, and Mastin, Keith & Caldwell.
1 Stpry Eq., sec. 411.

But it is insisted that the deed from Lea to
Davis was not registered, and fraudulently
concealed from the complainant, so that he
could not proceed to assert his rights. Davis
had possession of the land when he took Will-
iam Park Lea's deed, claiming for himself, and
adversely to all others; and he so continued in
possession till he sold the lind in December,
1852. This adverse possession was in itself
notice that he held the land under a title, the
character of which the complainant was bound
to ascertain. Landia v. Brant, 10 How
875.

Furthermore, Caldwell. Keith & Mastin,
purchased from Davis in December, 1852; they
caused the deed from William Park Lea to
Davis, and the one from the latter to them, to
be duly registered, without having any knowl-
edge of the complainant's claim, and without
the existence of any circumstance to put them
on inquiry respecting it. They were clearly
bona fide purchasers of a legal title, that the
complainant cannot assail in equity.

2. The respondents rely on the Act of Lim-
itations of the State of Tennessee as a protec-
tion to their title and possession. The Act de-
clares *' that where any person shall have had
seven years' possession .of any lands which
have l>een granted by this State, holdicg or
claiming the same by virtue of a deed of con-
veyance or other assurance, purporting to con-
vey an estate in fee simple, and no claim by
suit in law or equity, effectually prosecuted,
shall have been set up or made to said lands
within the aforesaid time, then, and in that
case, the person or persons, their heirs or as-
signs, so holding possession, shall be entitled to
keep and hold possession of such ouantity of
land as shall be specified and described in the
deed, &c., in preference to, and against all, and
all manner of person or persons whatever."

By the settled construction of the foregoing
Act, an unrenstered deed ia a sufficient title
on which the oar can be founded; and when
John Davis' deed from William Park Lea was
recorded, it relate<l to its date, and was good
to draw the better title to it by force of the
Statute.

Thepossessions of John Davis, and Cald-
well, Keith & Mastin, made one possession;
and if the two were continuous for the whole
term of seven years, then the bar was formed,
and the defense complete. This brings us to
the fact of actual possession held by Davis,

204

49&-506

SUFBBKE COtTBT OF THB UHITED STATBS*

Dbc. Tkbm,

for after he sold to CaldWell, Keith & Mastln,
no one disputes their actual possession.

Davis purchased the improvemeDts on the
land from Wallace, 25th February, 1842, for
the sum of $40; and by the agreement, Wal-
lace was to hold under Davis and occupy the
premises for three years, which Wallace proves
he did. He then left the place, and Wilson
Abercrombie went into possession under Davis,
and occupied the cabin one year. It being in
the midst of a small field which was annually
cultivated in grain crops, Davis removed the
cabin beyond the field, and put it up again on
the forty-acre lot, and Abercrombie occupied
it another year. He was succeeded by Bailey
McCoy as tenant of the cabin under Davis;
McCoy occupied it for a year or more. Wal-
lace's field could not have included more than
some three acres, and had an orchard of peach
trees on it. After the cabin was removed,
Davis enlarged the field, and extended it across
the southern line of the forty-acre lot, and also
enlarged it, from time to time, by small clear-
ings at the other end (which were made for
turnip patches), until the field included about
twelve acres, and which was annually culti-
vated by Davis, whose residence was within a
few hundred yards of the field, on the adjoin-
ing section of land. This field was obviously
an important part of his plantation. That por-
tion of the twelve acre field lying on the forty-
acre lot embraced, when this suit was brought,
about five acres. Mann, the County Surveyor,
who run the lines of the forty-acre lot, in Sep-
tember, 1855, so states. He proves that the
debris and ground plan of the cabin Wallace
built and occupied were quite apparent; that
the peach trees were there, and that the old
and word land was plainly distinguishable
from that more recently cleared up, and which
was on its different sides.

To overcome the evidence of continued pos-
session on the part of Davis, two witnesses were
produced by the complainant, to wit: Craw-
ford Braswell and Jesse Shubird. The former
swears that he resided in Ducktown from June,
1845. to October, 1850; that he knew John
Davis, and the place Wallace improved. "I
at one lime (says he) purposed purchasing that
eighty acres where the Wallace improvement
was. Davis told me that he had only the oc-
cupant of Luther Wallace; that he did not
own the land, and that he had moved the im-
provements off to another place; and having
asked him who owned the land, he stated it
was entered by a man by the name of Lea. He
stated he had moved on the house and fruit
trees, and I think he also named the time."
Says he thinks the conversation took place in
July, 1848.

In answer to another question, the witness
says: "Mr. Davis showed me where he had
moved the house from, and I understood he
had moved all the improvementaoff that place,
and the stock was running on the land that had
been inclosed, and if any of the fencing was
left, I did not notice it. The place was grown
up very much with bushes. There might have
been some rotten rails scattered where the
fence was put, lying among the bushes and
saplings."

This is represented, also, as having taken
place in July, 1848; and the witness swears

206

that in the succeeding August. Davis showed
him where the Wallaoa house had stood. He
was interrogated, on the part of the complain-
ant, as follows:

Please state whether or not you afterwards
heard John Davis set up claim to the Wallace
eighty -acre tract ; and if so, state when it was,
and fully what he said to you on the subject.

Answer. In the winter of 1849, there was a
man there from Bradley County, looking at
Davis' land, and talking of buying him out.
I happened at Davis' at the time, and he re-
quested me not tq mention the conversation to
any person, that had passed between us, about
the land ; that if he sold his land to that man,
he should sell the Wallace place also.

Question by same. Please state whether that
was the first time you heard him assume to own
the eighty-acre Wallace tract.

Answer. He did not profess to own it then,
but said he should sell it with the balance, if
he sold at all.

Interrogatory by same. State whether or not
John Davis had the Luther Wallace place in-
closed at any time; and if so, state when he had
it done.

Answer. If he had it inclosed at any time,
it was since I left that country.

To the cross -interrogatories, the witness
stated:

Do you say there was no land on the Wal-
lace tract inclosed and in cultivation during
the years 1848, 1849, and 1850?

Answer. None in 1848, and none afterwards
that I know of.

Are you acquainted with the boundaries of
the Wallace land, and can you say, positively,
that there was no land on said tract m cultiva-
tion during the aforesaid years?

Answer. I was not acquainted with the lines
of the tract, and, if there was any in cultiva-
tion on the tract, I did not know it.

Can you, then, say positively that no part of
the field, about where the old Wallace houhe
stood, was in cultivation during the time men-
tioned?

Answer. No part of it was in cultivation
during the time i lived there.

In your answer te complainant's sixth ques-
tion, you say he (John Davis) stated that Lea
had entered the land. State where that con-
versation took place, when ; and if any person
was present, give the name or names.

Answer. This conversation took place at
Davis' mill, in the month of July, 1848, and
there was no person present

In your answer to complainant's third ques-
tion, you say that John Davis told you he bad
only the occupant right, which he had pur-
chased from Wallace, and that he did not own
the land ; state exactly what he told you, and
at what time.

Answer. In the month of July. 1848, he
made the statements I have made in that answer,
that he had only bought the improvemento
from Wallace, and that he did not own the
land, and would not sell it, and make a title
to it.

Shubird swears that he went to Ducktown
to reside in 1848, and lived there about three
years; sa^s he knew John Davis, and the Luther
Wallace improvement.

The succeeding questions propounded for the

62 U. S.

1868.

Lba. v. Polk County Cofpeb Co.

493-606

complainant, and the answers to them, will
best present the material statements of this
witness:

State whether or not the Luther Wallace im-
provement was moved from the place where
he first put it up; and if so, state who had it
moved, and where it was moved to.

Answer. The houses, fencing, and peach
trees, were moved from the place they were
first put on the Luther Wallace place. They
were moved by John Davis, and put on his own
land.

How far were these improvements taken
from where Luther Wallace had put them up?

Answer. I can't exactly say, but suppose a
half mile or three quarters.

Please state why John Davis removed these
improvements. Tell all you may have heard
John Davis say on that subject.

Answer. He (John Davis) stated to me that
the reason he moved them was, that he was
^raid he would lose his labor, as he had un-
derstood a man by the name of Lea had entered
tiie land, and stated that he did not own the
land.

State whether or not you ever heard John
Davis claim the land where the Luther Wal-
lace improvement was, at any time while you
lived with him.

Answer. The Luther Wallace place is now
called Copper Hill. I think in about the year
1849, after the copper property came into no-
tice, John Davis set up a claim, and said it.

Do you know whether or not the Luther
Wallace improvement or property was left va-
cant and turned out at the time Davis removed
the fencing. &c., away? And if so, state how
long it was left vacant.

Answer. The property ' was left vacant —
how long I can't say, but until Davis set up his
claim; he then commenced fixing up the lenc-
ingagain.

On cross examination, the witness states that
he went to Ducktown in March, 1848: that the
Wallace house had been removed before; nor
was there any inclosed land on the Copper
Hill tract when he went there.

He is then further interrogated, and answers:

How can you say, then, as in your answer
to complainant's third interrogatory, that the
house, fencing, and peach trees, were removed
by John Davis, and put upon his own land ?

Answer. I heard John Davis sa^^ so.

At what time did Davis tell you this, and how
did he happen to speak to you on this subject?

Answer. Shortly after I went there — I can't
say exactly what time. John Davis and my-
self, after passing through his farm, passed
upon the vacant place of Luther Wallace. He
mentioned the subject himself, and told what
I have heretofore stated.

On which side of Davis's mill creek was the
improvement of which you have been speaking
situated?

Answer. It was situated on the left hand
when going up the creek.

Was there not, at that time, a small field in-
closed between the mill creek and the Copper
Hill?

Answer. Not to my knowledge, as I don't
know whether there was or not, as I know
nothing about it, only as Davis told me that he
had taken all off.

See ^l How.

Was there any person present when this
conversation occurred between you and Davis?
If so, state who it was.

Answer. There was no person present.

If the evidence of these two witnesses be
true, then there was no continuous adverse
holding; and the question is, whether it is en-
titled to credit. Braswell swears that the en-
tire improvements were removed, includingthe
fruit trees; and that the land where the Wal-
lace improvement had been made was grown
up and overrun with bushes and saplings; that
this was the condition of the place in 1848.
Shubird proves the same, with the exception
that he says nothing as respects the under-
growth. So far as conversations with John
Davis are given, they may be dismissed, with
the remark, that he had obtained William Park
Lea's deed for the land in June, 1846, and was
not at all likely to carefully disavow all title,
and say the land belonged to one Lea.

In 1856, when these depositions were taken,
John Davis was dead, and courts of justice
lend a very unwilling ear to statements of what
dead men had said.

Many witnesses have been examined to
prove that Braswell and Shubird are not enti-
tled to credit on oath as witnesses, and many
prove the reverse. That they are men of no
substantial worth, and of little respectability,
is manifest enough, and confidence in their in-
tegrity is certainly impaired. But in this case,
as in most others, the integrity of the witnesses
is easily ascertained. If the land was grown
up in bushes and saplings in 1848, it must have
been thrown out as a waste place six or eiffht
years before that time. Davis purchased Wal-
lace's possession in February, 1842. Wallace
remained there three years, oy agreement with
Davis. Then Abercrombie came in, and oc-
cupied the house one year whilst it stood In
the field. It was then removed beyond the
field, and had no connection with it. Davis
himself took possession of the cleared land,
and cultivated it. It was rented by Davis to
Dugger, either in 1849 or 1850, and he raised a
crop on it. The orchard was there then, and
continued there till 1855, after this suit was
brought, as Mann, the County Surveyor,
proves, who traced the lines of the Copper
Hill tract, and examined the cleared land in the
twelve-acre field, and especially that part north
of the southern line of the forty-acre lot. Mann
states that that the marks of the old house
built by Wallace were plainly visible, and so
was the old worn land clearea by Wallace, and
that the peach trees were there. Substantially
the same facts are proved by nearly all of the
witnebscs examinea on part of the respondents.
It is the most familiar fact in the cause.

That the Wallace field and orchard were
constantly under fence from the time Davis
purchased of Wallace, and certainly never
abandoned nor overrun with brushwood and
saplines, is fully established.

And our opinion is, that when Braswell and
Shubird deposed to the reverse, they stated
wOat was untrue.

The complainant in his amended bill does
not controvert the fact that adverse possession,
for more than seven years, had been holden of
the land in dispute, but relies on the following
allegations to avoid the bar, to wit:

207

526, 527; 589-^46

SUFBBUE COUBT OF THB UNITBD STATBS.

Dec. Tbric,

Tour orator shows the defendants, in their
answers on file, charj^e that the said John
Davis and those claiming under him had seven
years' peaceable, uninterrupted, adverse pos-
session of the land in dispute, previous to the
filing of the original bill, and previous to the
suit at law; as to which facts no answer is
asked herein from defendants; but if any such
possession existed, your orator charges, and
which charge your orator does require to be
answered, that it was a fraudulent possession,
under a fraudulent grant and fraudulent deed,
the registration of which was postponed until
within about the last two years; that the pos-
session of your orator's grant, first by the said
William Park Lea, and then by the said John
Davis, was fraudulently concealed from him
by them; that he never had any knowledge or
information thereof until about the time stated
in his original bill, and within the last twelve
months; and that, as his cause of action was
thus fraudulently concealed, the Statute of
Limitations cannot apply.

These allegations are specially denied by the
answer of the respondents, except as to the
fact that the deed from William Park Lea to
John Davis was not registered, which is ad-
mitted. Of the other allegations there is no
proof, and of course they are not in the case.

Whether Lea had title or not at the time he
conveyed to Davis isalto^ther immaterial, as
the l^nnessee Act of Limitation intended to
protect and confirm void deeds purporting to
convey an estate in fee simple, where seven
years^ adverse possession had been held under
them. Nor was Davis bound to register his
deed from Lea; between them, as grantor and
mntee, it was valid without registration.
N^either can the complainant be heard to say
that he had no notice of the fact that Davis
claimed title to the land. His possession and
adverse holding was notice to the world, as
will be seen by the case of Landis v. Brant,
above cited.

On the two grounds above stated, we order that
tJie decree of the Circuit Court dismissing the bill
be affirmed.

Mr, Justice Daniel, dissenting:

In the case of Lea v. TJie Coppermine Com-
pany, it is my opinion that the Company, as a
Corporation, could neither plead nor be im-
pleaded in a court of the United States.

LLOYD N. ROGERS. Admr. of Eliza Pakk
Curtis; EDMUND L. ROGERS, in his
own right, and as Admr. of Eliza L.
RooBBB, and Eleanob A. Rooebs^ Appts,

JOSEPH E. law, by Mary Robinson, his

Next Friend.

(See S. C, 21 How., 68»>687.)

Appeal dismissed, cannot be hea/rd ^

Where tlie appeal was dismissed 27tta February,
1857. the appellants filed the record and docketed
the case, 8d April, 1857, and there is no statement
of any other appeal; and this seems to be the ap-
peal that was docketed and dismiaaed; held, that
this appeal cannot be sustained.

S08

Argued and held under advisement May 18,
1868, Reargued Mar. 4, 1759, Decided Mar.
11, 1859.

APPEAL from the Circuit Court of the Unit-
ed States for the District of Columbia. On
motion to dismiss.
The case is stated by the court.

Messrs. R. S« Coze and T. P. Scott» for

appellants.

Mr. R. J. Brent, for appellee.

Mr. Justice McLean delivered the opinion
of the court:

The facts, as thejr appear of record, on the
motion to dismiss this appeal, are as follows:

The decree of the circuit court was pro-
nounced 21st January, 1856. An appeal was
prayed from said decree, and granted the same
day, 21st, Januar}^, 1850. This appeal was
docketed and dismissed under the 63d rule of
this court, at December Term, 1856, to wit:
27th February, 1857; and a writ of procedendo
was issued 19th May, 1857.

The appellants filed this record and docketed
the case 8d April, 1857. The record in this
case stated that an appeal had been prayed and
allowed, but does not ^ve any date. There is
no statement of any prior appeal in this record.
The af>peal bond is dated 4th February, 1856.
There is no citation in this record.

The appellants filed the citation and bond,
80th April, 1857, and directed the clerk to
docket this case, to transfer the record filed in
the last case to this, ^ attach said citation and
bond to said record, and to print all the papers
in this case. There is no statement of any
other appeal than that set out; and this seems
to be the appeal that was docketed and dis-
missed 27th February, 1857.

As the record now stands, it is not perceived
how this appeal can be sustained.

THE BOARD OF COMMISSIONERS OF
THE COUNTY OF KNOX, Plffs. in Br.,

WILLIAM H. ASPINWALL, JOSEPH W.

ALSOP. HENRY CHAUNCEY, CHA8.

GOULD AND SAM'L. L. M. BARLOW.

(See 8. C, 21 How., 589-^>4A.)

County bonds — prerequisites of, question for com^
missioners — innocent holders — if bonds import
validity, purchaser protected — suit on coupons
detached.

Where bonds of a county were issued In pursu.
anoe of a public statute of a State, any peraon
dealing in them is chargeable with a knowledge of
it.

When full power is conferred upon the board of.
commissioners to subscribe for the stock and issue
the bonds, when a majority of the voters of the
county have determined in favor of the subeorlp-
tion, after due notice of the time and place of the
election; whether or not the election has been
properly held, and a majority of the votes of the
county cast in favor of the subscription, is a ques-
tion for the board.

After the authority has been executed, the stock
subscribed, and the bonds issued, and In the hands
of innocent holders, it is too late, even in a direct

grooeeding, to call in question the decision of the
oard.

02 U. S.

1858.

COMMI86IONBRB OF KnOX CoUNTT Y. AbPISWALL.

689-546

H uoh len can It be called in question In a oollat-
eral way to the prejudice of a oona flde holder of
the bonoB.

Where the bonds on their face import a oom-
pUanoe with the law under which they were issued,
xbe purchaser is not bound to look further for evi-
dence of of a compliance with the conditions to
'the irrant of the power.

A suit can be maintained upon the coupons,
without the production of the bonds to which they
bad been attached.

Argued Feb, 24, 1859, Decided Mar, 11, 1869,

IN ERROR to the Circuit Court of the United
States for the District of Indiana.

This was an action of assumpsit brought in
the court below, by the defendants in error, to
'enforce i)ayment of certain coupons.

The trial in the court below resulted in a
▼erdict and judgment in behalf of the plaint-
iffs, for $17,882.36, with costs; whereupon the
defendants sued out this writ of error.

A further statement of the case appears in
the opinion of the court:

Messrs. McDonald Sb Porter, R. W.
Thompson, and Reverdy Johnson, for

plaintiffs in error.

Messrs, J. P. Benjamin, S. Jndah and
8. F. Vernon, for defendant in error.

Mr. Justice Nelson delivered the opinion of
the court:

This is a writ of error to the Circuit Court of
the United States for the District of Indiana.
The suit was brought in the court below against
the Board of Commissionors of Knox County, to
recover the amounVdue upon two hundred and
eighty -four coupons, each for the sum of $60,
the whole amounts to the sum of $ 1 7, 400. The
coupons were pavable at the North River Bank,
in the City of New York — one hundred and
forty-two of them on the 1st of March, 1856,
and the remaining number on the Ist of March,
1857. These coupons were originally attached
to one hundred ana forty-two bonds issued by the
defendants, for $1 ,000 each, the bonds payable at
the bank above mentioned, twenty-five vears
from date, to the Ohio and Mississippi Railroad
Company, or bearer, with interest at the rate
of six per cent, per annum, payable annually
on the Ist of March, at the bank, upon presen-
tation and delivery of the proper coupons
hereto attached, by the auditor of said county. *

The coupons declared upon and sought to
he recovered are those which were attached to
these one hundred and forty-two bonds, and
represented the interest due thereon on the
1st of March, 1856 and 1857. The plaintiffs
are the holders and owners of these coupons.

The main around of the defense set up and
relied on to deCeat the recovery is, that the de-
fendant, the Board of Commissioners, pos-
sessed no authority to execute, or to authorize
to be executed, the bonds or coupons in ques-
tion : and hence, that they are obligations not
binding upon the Countv of Knox, which this
Board represents. Oiir chief inquiry, therefore,
will be, whether or not these several obligations
were executed and put into circulation, as evi-
dences of indebtedness, by competent and legal
authority.

Th^ defendant is a bodv corporate, under the
laws of the State of Indiana, by the name of
the Board of Commissioners of the County, and
▼eiy large powers are conferred upon it in

See 21 How. U. S., Book 16.

matters relating to the police and fiscal con-
cerns of the county. The auditor of the
county is to act as its clerk, and the sheriff was
to attend its meetings and execute itb orders^
It has a common seal, and copies of its pro-
ceedings, signed and sealed by the clerk, are
evidence in courts of justice. It has power to
dispose of the property of the county; to adjust
accounts against it; to raise revenue, and ex-
amine accounts of disbursing officers; and an
appeal lies from its decisions to the circuit
court. 1 R. 8. of Indiana, 180, 187.

On the 14th February, 1848, the Legisla-
ture of Indiana incorporated the Ohio and Mis-
sissippi Railroad Company, and by Ihe 12th
section of the Charter provided as follows :

"It shall be lawful for the County Com-
missioners of any county in the State of In-
diana through which said railroad passes, for
and in behalf of said county, to authorize, by
order on their records, so much of the said
stock to be taken in said railroad as they may
deem proper, at any time within five yearis
after opening the books of subscription to said
stock : Provided, however, that it shall be, and
is hereby made, the duty of said Countv Com-
missioners, in any county through which said
railroad may pass in the State of Indiana, to
subscribe for stock for and on behalf of said
county, if a majority of the qualified voters of
said county, at any annual election within five
years after said books are opened, shall vote
for the same." Sess. Laws, 1848, page 619.

This Act was amended on the 15th of Janu-
ary, 1849, and in the 2d section it was de-
clared to be the duty of the sheriffs of the
counties — and among others, Knox County, the
one in question — forthwith give notice of an
election to be held on the first Monday in
March then next, to determine whether said
county would subscribe for the stock of the
Ohio and Mississippi Railroad Company, &c. ;
and if a majority of the votes shall be given in
favor of the subscription, the County Board of
Commissioners shall subscribe to said stock,
&c., for the county, to an amount not less
$ 1 00. 000. Provided, that the County Board of
any of said cbunties may, within one week prior
to the said election, increase or lessen the amount
to be subscribed, of which notice shall be given
at the different precincts of said county on the
day of the election, '<&c.

The 8d section provided that the county
subscription shall be payable in county bonds,
bearing interest at the rate of six per cent, per
annum, payable annually on the first day of
March, redeemable at such time and place as
the directors of the Companj may determine,
within thirty years of the date of the subscrip-
tion. The section then provides for the levy-
ing of a tax annually upon the county by the
Board of Commissioners, to meet the accruing
interest on the bonds.

The plaintiff gave in evidence, on the trial,
that at a meeting of the Board of Commission-
ers of the County of Knox, on the 26th Feb-
ruary, 1849, it ordered, under the power given
in the 2d seC^tion above referred to, that the
county subscribe $200,000 of the capital stock
of the Ohio & Mississippi Railroad Company.
And, also, that at a meeting on the 25th Oc-
tober, 1850, after reciting that, in accordance
with the wishes of the voters of the county, as

14 209

53»-546

SUPBBMS Ck>nBT OF THE UnITBD StATES.

Dec, Tebm^

expressed at the election held for that purpose
in the several townships on the first Monday
of March, 1849. it is ordered that the auditor,
in the name and for the County of Knox, sub-
scribe to the capital stock of the Ohio & Mis-
sissippi Railroad Company four thousand
shares of $50 each, or the sum of $200,000; and
that the auditor be authorized to vote at all
elections and meetinss of stockholders, or to
appoint a proxy in hid stead. And that, in
pursuance of Uiis direction, the auditor sub-
scribed the four thousand shares, and received
certificates in the name of the Board of Com-
missioners of the county for the same; and also
executed and delivered the bonds of the county
as provided for in the 8d section of the Act
of 1889, attaching thereto coupons for the in-
terest. The bonds and coupons in question
were issued under this authority.

This is the substance of the case, as pre-
sented on the record.

The ground upon which the want of author-
ity to excute the bond in question is placed, is
the alleged omission to comply with the requisi-
tion of the Statute of 1849, In respect to the
notices to be given of the election to be held on
the first Monday of March, at which a vote was
to be taken for or against a subscription of
stock to the railroad company.

It is insisted that an irregularity or omission
in these notices had the effect to deprive the
Board of this authority, or rather furnish evi-
dence that the power had never vested in it un-
der the Act; and further, that the plaintiffs are
chargeable with a knowledge of all substantial
defects or irregularities in these notices of the
election, and not, therefore, entitled to the char-
acter of bona fide holders of the securities.

The Act, in pursuance of which the bonds
were issued, is a public statute of a State, and
it is undoubtedly true that any person dealing
in them is chargeable with a knowledge of it;
and as this Board was acting under delegated
authority, he must show that the authority has
been properly conferred. The court must,
therefore, looK into the Statute for the purpose
of determining this question ; and upon looking
into it, we see that full power is conferred upon
the Board to subscribe for the stock and issue
the bonds, when a majority of the voters of the
county have determined in favor of the sub-
scription, after due notice of the time and place
of the election. The case assumes that the req-
uisite notices were not given of the election,
and hence that the vote has not been in con-
formity with the law.

This view would seem to be decisive against
the authority on the part of the Board to issue
the bonds, were it not for a question that un-
derlies it; and that is, who is to determine
whether or not the election has been properly
held, and a majority of the votes of the county
cast in favor of the subscription. Is it to l)e
determined by the court, in this collateral way,
in every suit upon the bond, or coupon at-
tached, or by the Board of. Commissioners, as
a dut;p^ imposed upon it before making the sub-
scription?.

The court is of opinion that the question be-
longed to this Board. The Act makes it the
duty of the sheriff to give the notices of the
election for the mentioned, and then declares,
if a majority of the votes given shall be in favor

210

of the subscription, the County Board shall
subscribe the stock. The right of the Board to
act in an execution of the authority is placed
upon the fact that a majority of the votes had
been cast in favor of the subscription ; and to
have acted without first ascertaining it, would
have been a clear violation of duty; and the as-
certainment of the fact was necessarily left to
the injuiry and judgment of the Board itself, as
no other tribunal was provided for ^e purpose.
This Board was one, from its oriranlzation and
general duties, fit and competent to be the de-
positary of the trust thus confided to it. The
persons composing it were elected by the county^
and it was alreacfy invested with' the highest
functions concerning its general police and fis-
cal interests.

We do not say that the decision of the Board
would be conclusive in a direct proceeding to
inquire into the facts previously to the execu-
tion of the power, and before the rights and
interests of third parties had attached; but,
after the authority has been executed, the stock
subscribed, and the bonds issued, and in the
hands of innocent holders, it would be too late,
even in a direct proceeding, to call it in ques-
tion. Much less can it be called in question to
the prejudice of a bona fide holder of the bonda
in this collateral way.

Another answer to this ground of defense is,
that the purchaser of the bonds had a right to
assume that the vote of the county, which was
made a condition to the grant of the power,,
had been obtained, from the fact of the sub-
scription, by the Board, to the stock of the rail-
road company, and the issping of the bonda.

The bonds, on their face, import a compliance
with the law under which they were issued
"This bond," we quote, "is issued in part pay-
ment of a subscription of $200,000, by the said
Knox County, to the capital stock, &c., by
order of the Board of Commissioners/' in pur-
suance of the dd section of Act, &c., passed
by the General Assembly of the State of Indi-
ana, and approved 15th January, 1849.

The purchaser was not bound to look further
for evidence of a compliance with the condi-
tions to the grant of the power. This principle
was recently applied in a case in the Court of
Exchequer in England. 6 Ellis & Blackburn,.
«27. 27ie Royal British Bank v. Turquand. It
was an action upon a bond against the defend-
ant, as the manager of a joint stock company.
The defense was a want of power under the
deed of settlement or charter to give the bond.
One of the clauses in the charter provided that
the directors might borrow money on bonds in
such sums as should, from time to time, by a
^neral resolution of the company, be author-
ized to be borrowed. The resolution passed
was considered defective. Jervis, Ch. B., in
delivering the judgment of the court, observed :
"We may now take it for ^nted that the
dealings with these companies are not like
dealings with other partnerships, and that the
parties dealing with them are bound to read
the statute and the deed of settlement. But
they are not bound to do more. And the party
here, on reading the deed of settlement, would
find, not a prohibition from borrowing, but a
permission to do so on certain conditions. Find-
ing that the authority misht be made complete
by a resolution, he would have a right to infer

«2 U. S.

um.

COH

r Knox CoirifTT t. Wali^ck.

5iB-M7^72

the fact of a resolution authoriziDg tbat which,
on the face of the document, appeared to be
le^timstely dotie.'' See, &1«o, 8. 0.. 5 Ellis &
Bl.. p. 245. and 29 Bdk. L. & Kq., p. 114,
Madae v. Sutherland. The principle we think
sound, and is entirely applicable to the question

A qoestion was made iipon the argument,
that Um suit could not be maintained upon the
coupons without the production of the bonds to
which they bud inen attached. But the answer
i«, that the«e coupons or warrants for the in-
terest were drawn and executed in a form and
mode for the very purpose of separating them
from the bond, and thereby dispeniiing with the
necessity of its production at the time of the
sccruiDKof each inBiallment of interest, and at
the aamo time to furnish complete evidence of
the payment of the interest to the makers of
the obligation.

Some other minor points were made In the
case upon the ar^ment, which we have con-
sidered, but which it is not important should
be panicuiarly noticed.

We are fiUtflsd the judgment beloa it right,
and t/unild be iifftrmed.

my opinion, in the
first place, that the Clrcuil Court had not Ju-
risdiction of the cause, one ot the parties be-
ing a Corporation; and second, I think, more-
over, that the ComisBionera being known to
be mere agents, it was the duly ot thoee who
dealt with them tofwcertaia the extent of their
powera.

.385.

•!■> ■ ; 15 Wall-. 8T1: la (Vail-, «», om^

Sb Kaii.. U.,, „ tJ. S.. 480, SCO; M U.S.. aJS; 86 C
8, 311; te D. 8„ *3a; TO U. 8„ SIB, «e3. SSt; 101 D,
S., SH: lOi n. S., 280; 1 Blss, l»K, 286, SIS; 1 Dill.,
Sit; 8 Dill., m, 180; « Btatobf.. 3«S.

THE BOARD OF COMMISSIONERS OF
TBB COUNTY OP KNOX. Plaint^ in

DAVID C. WALLACE.

(See 8. C. n How., IHS-MT.)

T. AtpinteaU, ante,

tfaone wblofa 1

upon thetrlalof tlii* ou

Jlr the same, mutotti mutandis, i

S raved or kdmltled In the oase t.
[or -•

the Judsment In tUi ease.

Argued PVi. t8, 18S3. Decided Mar. II, 1SS9.

IN ERROR to the Circuit Court of the United
Slatea for the District of Indiana.
Tbis was an action of attumptU brought in
the coiul below by the defendant In error, on
certain coupons for Insiallmenis of interest.
The trial below resulted in a verdict and judg-
ment in favor of the plaintiff, for t4.287.0S,
with coats : whereupon the defendants sued out
this writ of error.
Bee %i How.

A further statement of the case appears in
tbe opinion of the court.

Metsra. McDonald & Porter and R. W.
Thompaon, for plaintiff in error.

Mr, N. C. KeI>ea.Q, for defendant in error;

The Board of Commlssinneia had power to
issue the bonds. The county record author-
izes the issue of the bonds in accordance with
the 8d section of the Act of Jan. 15. 1948. and
that provides for bonds bearing inlereat pay-
able annually. The coupons or interest war-
rants were attached to the bonds in the usual
and ordinary way for the convenience of all
parties, and were merely the evidence of the
payment ot tbe interest authorized by the bonds
themselves under the law. The power is not
extended, but is simply exercised in the man-
ner which has become the settled custom in
such securities.

Gra/uim v. Maddox:, 6 Am. Law Reg., 616-
Slate of Ohio v. Oammittioner4 of OUtiton Co., S
O. St., 280.

Mr. JutUee NeUon delivered the oplnioD
of the court;

ThU is a writ ot error to the Circuit Court of
tbe United Slates for tbe District ot Indiana.

The suit was brought by Wallace against the
Board, upon several coupons, for Installments
of interest which had been attached to certain
bonds issued by the defendants to the Ohio and
Hlssissippi R.R. Co. The coupons were owned
by the plaintiff, and had been duly presented
for payment, which was refused. The defend-
ants pleaded the general issue, and six special
pleas, to which there were replications, except
tbe second and sixth pleas, to which there w^e

Thee

'ere aft

pleadings not very intelligible in the record' and
seem not to have been relied on by either party.
The case was tried upon the general issue, and
the facts disclosed upon the trial was substan-
tially the same.mufatM mttlandi»,ta those which
were proved or admitted in the previouscaaeof
Aspinwali and others against these same defend-
ants. After the evidence was closed, the de-
fendants presented ten prayers lo the court,
upon eati ot which instructions were given.
It is unnecesaatT to go through them; the ques-
tions involved have already been examined in
the case above mentioned, and the result there
arrived at afflrms tbe judgment in this case.
Judgment afftrmed.

Dissenting, Mr. Jtutiee DsjiieL

Clted-MHow.,aTS; 2Bhu3k,7a>.

PHILO CHAMBERLAIN add JOHN H.
CRAWFORD, Cldmants of tbe Propeller
OoDBNHBintOH, Apple.,

BBER B. WARD asd STEPHEN CLE-
MENT, Survivor of Sakuel Ward, De-
ISee S. C £1 Row., UB-61t.}

U(«lnn ; ni

. ., See note

U. a. (13 How.), lOL

648-572

BtTPBXMK Court of the Uhitbd Statbs.

Dko. Term,

CoUuionr— incompetent offleers—awners and vessel
responnble—signal lights, token insujficwnt—
neglect of officer — requirements as to lights —
negket of ouleer vessel, mutual fattU— Damages,

In case of collision on Lake Erie, propellor held in
fault, because she did not have a competent and
skillful officer In charge of her deck, and because it
appears that his want of qualifications and unskill-
fumess contributed to the collision.

Owners of vessels must see to it that the masters
and other ofBcers intrusted with their control and
management, are skillful and competent to the
dischargre of their duties ; as, in case of a disaster
like the present, both the owners and the vessel are
responsible for their acts, and must answer for the
coneequences of their want of skill and negligence.

The propeller also held in fault, because she did
not have signal lights properly displayed, as re-
quired by law. ^ ^

Signal lights are required bv the Act of Congress,
and when they are extinguished, or burning so
dimly as not to fulfill the purpose and object for
whicn they are required, they do not and cannot
constitute a compliance with such Act of Congress.

The propeller also held in fault, for the reason
that the officer in charge of her deck neglected sea-
sonably and elfectually to change the course of the
voiwel, after he discovered the signal lights of the

steamer. „ . ^> x». , ,

Steamboats and propellers navigating the lakes
arc required by the 5th section of the Act of March
3. ia48» to carry a triangular light, shaded green on
the starboard side, and red on the larboard side,
with reflectors, and to be of a size to insure a good
and sufficient light ; and the owners of such ves-
sels, neglecting to comply with the regulation,
arc declared liable to the injured party for all loss
or damage resulting from such neglect.

But the neglect on the part of one vessel, to show
Fignal lights as they approach, does not discharge
the other, from the obligation to adopt all reason-
able and practical precautions to prevent a col-

The' steamer also held chargeable with fault, be-
en use the officer in charge of her deck did notexer-
(1 e proper vigilance to ascertain the character of
the approaching vessel, after he discovered the
white lights which subsequently proved to be the
whitellghts of the propeller.

The sfeamor also held chargeable with fault, be-
cause the officer in charge of ner deck did not sea-
sonably, and effectually change the course of the
vessel, or slow or stop her engine, so as to avoid
collision, after he discovered the white lights of the
approaching vessel.

The steamer also held in fault, because she did not
have a vigilant and sufficient lookout.

In a case of mutual fault, the decree of the cir-
cuit court, apportioning the damages, was correct.

Argued F^b. 15, 1869. Decided Mar. 11, 1869.

APPEAL from the Circuit Court of the Unit-
ed States for the Southern District of

Ohio.

The libel in this case was filed in the Dis-
trict Court of the United States for the South-
ern District of Ohio, by the appellees, to re-
cover damages sustaineid by a collision. The
decree of the said court dismissed the libel and
further ordered, adjudged and decreed, that
the libelants pay to the respondents the sum of
$8,000, with interest, as damages which they
sustained by the collision.

The circuit court, on appeal, reversed this
decree.and decreed that the damages occasioned
by the collision, with costs in both courts, be
equally divided between the parties, whereup-
on both parties appealed to this court, and the
appeals have been separately doclteted, in con-
formity to the agreement of the parties, that
the answer of the respondents should operate
as a cross libel for the damage sustained by the
propeller.

A further statement of the case appears in
the opinion of the court.

See, also, the next succeeding case.

21«

Messrs, B. P. SpaJLdini^ and H. Staji-
bery, for appellants:

1. The propeller Ogdensburgh was on her
true course, N. £. by £., when she first made
the steamer's light.

2. She did not change her course.

8. It was the duty of the propeller, under
existing circumstances, to keep her course. To
have thrown her helm "a-port,*' with the
steamer from two to three points of the com-
pass on her starboard bow, would have been a
gross violation of the rules of navigation.

London Packet, 2 W. Rob., 218; Steamer
Ocean, Naut. Mag., Vol. I., No. 6, p. 855;
Steam-Tug Sampson, 8 Wall., Jr., 14; 8 Am.
Law Reg., p. 887; The Santa Glaus, Olcott,
428.

4. The light of The Atlantic, as first made
from the propeller, was by no means a "red
signal light. It was an ordinary white light.
The Atlantic was only three or four times her
length off, and was consequently swinging un-
der *' a port helm," when she showed her "red
light " to the propeller.

5. At the instant of collision, and when it
was inevitable, the helm of the propeller was
ordered " a-starboard." But the testimony
shows that the object was solely to lessen the
amount of damage by receiving a glancing
stroke upon the bows, rather than a direct
blow upon the broadside of the propeller.

The steamboat had no right to place the pro-
peller in such Jeopardy, that the error of a
moment might cause her destruction. If an
error was committed in giving the order to
" starboard," it could not, under the circum-
stances, be deemed a "fault."

The Genesee GhiefY, FUzhugh, 12 How., 461;
Shute V. GosIm, 8 Am. Law Reg., 476.

6. The propeller displayed proper liffhta.
The steamer Atlantic was wholly in lault:
First. She had no sufficient "lookout "on

the night in question. The inside of Uie pilot
house was not the proper place from whence to
keep watch for approaching vessels. " A com-
petent and vigilent " lookout' should have been «
stationed at the forward part of the steamer, in
the position best adapted to descry vessels at
the earliest moment.

St. John V. Paine, 10 How., 585; 7 he Genesee
Chief y FUahugh, 12 How., 462; The Cathanne
V. Dickinson, 17 How., 177; TheEuropa, 2Eng.
L. & £q., 568 and 554; The Diana, 1 W. Rob.,
181 ; Pritch. Adm. Dig. , p. 168 ; sec. 50 and note;
The Nevo Torky. Bea, 18 How., 225; The Wm.
K. Perrin v. The Louisiana, 6 Am. Law Reg.,
427.

Second. The master and chief mate were in
bed while the steamboat was running at a rap-
id rate, in a locality much frequented by vea-
sels, through an atmosphere so smoky that the
character and course of the propeller could not
be determined at the distance of half a mile.
Under such circumstances, the safety of more
than four hundred human lives was intrusted
to a second mate, who lacked the experi-
ence of a single summer, as " an officer of the
deck."

This shows, on the part of the two first-
named officers, an indifference to their respon-
sibility perfectly unjustifiable, and tends very
much to cast the blame for the collision upou
The Atlantic.

62 U. S.

1858.

Ch/imbbrlaik y. Ward.

64&-57l^

The Iron Duke, 2 W. Rob., 885; dhuU v.
Oaaiee, 8 Am. Law Reg., 474.

Third. The steamboat was greatly in fault
in not diminishing her speed, when she found
herself in close proximity with another vessel,
of whose character and course she was ig-
norant.

The Bom, 2 W. Rob., 2, 8; The Virgil, 2
W. Rob., 205; TTuj Birkenhead, 8 W. Rob, 76;
The Perth, 8 Hagg., 414-417; The Bainbow, 11
Am. Law Jour., 882; Peck v. Sanderson, 17
flow., 181; The Oeneeee GMef, 12 How., 468;
2^ Northern Indiana, Judioe Hall, Manu-
script; The Sampeon, JusHce Hall, 8 Am. Law
Beg., 840; 8?iute y. Chelee, Justice Campbell,
8 Am. Law Reg., 476; The Europa, 2 Eng. L.
& £q., 659.

in the case of The N. T, and Va. Steamship
Co. y. Oalderwood, 10 How., 241, Mr. Justice
Campbell says (p. 246): *'In the present in-
stance, the steamer had notice that a vessel was
t)efore her and was near her track, and under
the circumstances she was bound to take effi-
cient measures to avoid the schooner."

Fourth. Having neglected to *" ease her en-
gine," which would have been, to say the least,
a proper precautionary measure under the cir
Gumstanoes, the burthen rests upon The Atlan-
tic to show that the collision was not owing to
that neglect, but would have equally happened
if she had performed her duty.

8e/U)oner Lion, JudM Sprague, 6 Law Rep.,
117; The Anita v. The Anglo Norman, Mc-
Ca^iih,Judge, Eastern Dist. of Louisiana, Newb.
Adm., 404.

Fifth. The steamboat committed an unpar-
donable fault, when she threw her helm *' a
port " and attempted to cross the bows of the
propeller. Li fact, the collision was brought
abuut by this rash and unskillful maneuver.

The London Packet, 2 W. Rob., 218; The
Emily, 1 Blatchf.. 286; The Bainbow, 11 Am.
Law Jour. ,^2, The Steam Tug Sampson, 8 Am.
Law Reg., 880; Steamer Ocean, 1 Naut. Mag.,
S85; Northern Indiana, Judge Hall, Manu-
script; The James Watt, 2 W. Rob., 270; The
Friends, 4 Moore, P. C, 814; Pritch. Adm.
Dig. 171. note 08; The Oregon v. Boeca, 18
How., 672.

Sixth. After the collision. The Atlantic was
blamable in not having attempted to ascertain
whether The Ogdensburgh required assistance.

Ths CeU, 8 Hagg.. 327.

Finally. If in any possible contingency this
liigh tribunal shall be brought to the determi-
nation, that the{propeller Ogdensburgh contrib-
uted to the terrible disaster revealed in the
testimony, in such a manner as to incur liabili-
ty for damages, then in behalf of her owners.
Chamberlain & Crawford, I shall claim the
benefit of the Act of Congress ^f March 8d,
1851. entitled " An Act to limit the liability of
ship owners and for other purposes."

0 U. S. Stat, at L., 685, sec. 8; American
Transportation Co, v. Moore dk Co., 7 Am. Law
Reg.. 16.

Messrs. John S. Newberry and N. H.

u for appellees.

Mr. Justice CUfTord delivered the opinion
of the court:

This was a suit in personam, and comes be-
fore the court by appeal from the Circuit Court

Bee 2i How.

of the United States for the Southern District
of Ohio, sitting in admiralty. It was com-
menced by the present appellees, as owners of
the steamer Atlantic, against the appellants,
as owners of the propeller O^ensburgh. and

Erew out of a collision which occurred on
ake Erie between those vessels on the 20th
day of August, 1862. whereby the propeller
received damage, and the steamer was run
down and lost. Some change was made in the
nature and character of the proceeding after
the suit was instituted, making it necessary
that a brief explanation should be given, in
order that the present state of the pleadings
may not be misunderstood. According to the
transcript, the original libel was filed in the
clerk's office of the district court on the 27th
day of October, 1852, and on the same day a
process of attachment against the propeller,
and monition to her owners, was taken out,
and subsequently served, pursuant to its man-
date, by attaching the vessel, publishing no-
tices to those interested, and summoning the
respondents. On the 11th day of November
following, an amended libel was filed in court,
setting forth more in detail the circumstances
of the collision and the grounds of the claim as
made by the libelants. As amended, however,
the libel still retained, in some of its aspects, the
the form of a proceeding in rem against the ves-
sel, and a suit in personam against her owners.
In the answer, which was not filed till after
the process was served, the appellants, as
claimants of the propeller and respondents in
this suit, excepted to the form of a libel, alleg-
ing that the two modes of proceeding were im-
properly joined, and prayed that the libel
should be dismissed on that account. At the
hearing in the district court, the exception of
the respondents for a misjoinder was sustained,
and thereupon the libelants, on motion for
leave, were permitted to amend and change
the proceeding to the form of a suit in persot^
am against the appellants as owners of the pro-
peller, and the cause was allowed to progress,
and in that form of proceeding, the. parties
were ultimately heard upon the merits of the
controversy. Another explanation is also nec-
essary, connected with the answer of the re-
spondents, as without it the subsequent pro-
ceedings in the cause would appear to have
been irregular, and certainly would be incom-
prehensible. On the 26th day of April, 1858,
the parties entered into an agreement to the ef-
fect that the answer of the respondents in this
suit should operate as a cross libel for the dam-
age sustained by the propeller, and that the
claims of both parties to damage should be
considered by the court in weighing the evi-
dence, and be adiudicated upon in the final de-
cree; and in order to facilitate the investiga-
tion, it was admitted in the case that the dam-
age sustained by the propeller amounted to
the sum of $8,000. ana that the value of the
steamer was |75,0(K). Other interlocutory pro-
ceedings were had in the cause which it is
not important to notice, and testimony was
. taken on both sides, and at the final hearing
on the 10th dav of May following, a decree was
enter^, that the libel be dismissed with costs;
and under the authority conferred by the
agreement that the answer should operate as a
cross libel, it was further ordered, adjudged

MB^72

SXJPBBMB COUBT OF TDK UkITIBD STATBS.

Dbc. Trkm,

and decreed, that the libelants pay to the re
spondentA, within thirty days, the sum of
$8p000, with interest, as the damage which the
propeller sustained by the collision.

From that decree the libelants appealed to
the circuit court. Much additional testimony
was taken in the circuit court, and after a full
hearing on the 12th of November, 1856, upon
the pleadings as modified, and the proofs ad-
duced by the respective parties, it was ordered,
adjudgea and decreed, that the decree of the
district court be in all things reversed, and a
final decree was entered, to Sie effect that the
damages occasioned by the collision, together
with the costs in both courts, be equally di-
vided, and that each party bear a moiety of
the same; and that the respondents, pursuant
to the admissions of the parlies as to the
amount of the damage, pay to the libelants the
sum of $86,000. Whereupon the parties re-
spectively appealed to this court, and the ap-
peals have been separately docketed in con-
formity to the agreement of the parties, that the
answer of the respondents should operate as a
cross libel for the damage sustained by the pro-
peller.

Some reference to the pleadings touching the
merits of the controversy now becomes neces-
sary, before we proceed to the consideration of
the matters of fact in dispute between the par-
ties in this suit.

According to the allegations of the libel, the
steamer Atlantic was duly enrolled and licensed,
and was regularly employed in transporting pas-
scncers and freight, making semi- weekly trips
each way, to and from Detroit, in the State of
Michigan, and Buffalo, in the State of New
York. She left Buffalo at the usual hour in the
evening of the 10th of August, lb52, with freight
and a large number of passengers oh board,
bound on her regular trip to the port of Detroit.
And the libelants allege that she was a tight,
strong vessel, and in every respect well manned,
equipped and appointed for the voyage, with a
full complement of officers and men ; and that
those to whom the duty properly belonged were
at the time of the disaster on the lookout for the
safety and protection of the vessel. They also
allege that af t€r leaving Buffalo she proceeded
on her voyage in the usual route across the lake,
with all her signal lights displayed as required
by law ; that while &e was so proceeding, at
about half past two o'clock in the morning of
the following day, and when she was off Long
Point, on the Canada shore, the propeller Og-
den^burgh, then being on her way from Cleve-
land to the entrance of the Welland Canal, came
upon the steamer, and with great force and
violence ran into her, the bow of the propeller
striking the larboard side of the steamer near
the forward gangway, breaking and crushing
by the force and violence of the collision into
and through the guard and hull of the vessel,
BO that she filled with water and sunk, and be-
came wholly lost to the libelants.

Other matters of fact, material to the issue,
are also set forth in the libel, and among the
number are the followinj^: that the propeller,
before and at the time or the collision, did not
have burning, and properly displayed, the sig-
nal lights rec^uired by law ; that she was not
then proceeding in the usual route from Cleve-
land to the entrance of the canal, and that those

214

in charge of her when she came in sisrht of the
lights of the steamer neither stopped her en-
gines, nor slackened her speed, nor altered her
course, nor took any other precaution to pre-
vent or avoid a collision : and the libelants aver
that it was otherwise with those in charge of
the steamer; that as scon as they perceived the
lights of the propeller approaching, they put
the wheel of the steamer first a-port, and then
hard a-port, turning her course to the right,
away from the propeller, as by law it was their
duty to do, and that they made every effort in
their power to avoid a collision; and finally,
that the persons in charge of the propeller,
though they saw the lights of the steamer at a
great distance, and in ample time to have pre-
vented the disaster, did not put the wheel of
the propeller a-port, or turn their vessel to the
right, away from the steamer, as Ihey were
bound to do; nor did they stop or slow the en-
gine, or display lawful signal lishts, but so
negligently, improperly and unskiJlf ully navi-
gated their vessel tnat she ran directly and al-
most at right angles into and against the steam-
er, and thereby occasioned the disaster. Many
of the affirmative facts alleged in the libel are
expressly controverted in the answer filed by
the respondents. They deny that the steamer
was a tight, strong vessel, or that she was well
manned and appointed for the voyage; and
they also de&y that the proper persons were on
the lookout for the protection and safety of the
ve(isel, or that those in chnrge of the steamer
took any precautionary measures to prevent the
collision.

In addition to these denials, they allege, as
matter of defciise, that the propeller, a vessel
of three hundred and fifty-three tons burthen,
left Cleveland on the day preceding the disaa-
terat about twenty minutes past twelve o'clock,
deeply laden, and proceeded on her voyage, by
the way of Fairmount, toward Ogdensbargh,
her place of destination, which was to be
reached through the canal before mentioned;
that about two o'clock the next morning, and
when she was steerjng northeast by east, on
her proper course to the entrance of the canal,
the wind being light and the weather somewhat
hazy, the watch on her deck discovered the
ligh^of a steamer from two to three points off
her larboard bow, which was supposed to be
three miles distant; that the propeller kept on
her course, running at a speed of about seven
miles an hour, until the mate, who had the
watch, ascertaining that the light was fast ap-
proaching the propeller, gave the signal to
slow, which was obeyed; and soon after, on
discovering that the light was coming still
nearer, signaled to stop; and then, finding that
the vessels were likely to come in contact, he
directed the engine to be reversed, and gave the
order to back; out in spite of all these precau-
tionary measures, the collision ensued.

Respecting the immediate cause of the col-
lision, the theory of the respondents is, that the
steamer, if she had held her course southwest
by west, would have passed the propeller near-
ly a mile on her starboard quarter; and they
accordingly allege, that by putting her helm a-
port her course was tumea to the right, so «a
to bring her across the bows of the pn>peller.
And they also allege, in this connection, that
the steamer was running with unabated speed

6« r. 8.

1868.

CUAMBBRLAIN V. WaRD.

548^72

at the rate of fifteen miles an hour, when she
fell with all her momentum upon the stem of
the propeller, wrenching it out of its place, and
<»rrying the propeller half round as she ran on
her course.

And they finally allege that the persons in
•charge of the propeller, from the moment they
first discovered the light of the steamer to the
time of the collision, managed their vessel ac-
cording to the most approved rules of naviga-
tion ; and that the collision was wholly owing
to the fault, neglect and unskillfulness of the
offlceiB and crew of the steamer, in changing
her course across the path of the propeller, and
in their culpable omission to stop the steamer,
after it was found that such change of course
increased the danger, by bringing the two ves-
sels closer together. And. in accordance with
the theory that the steamer was wholly in fault,
they pray that their answer may be taken as a
cross libel in their behalf, to recover the dam-
age sustained by the propeller, and that such
sum may be decreed to them, by reason of the
collision, as in Justice they are entitled to re-
ceive.

Such is the substance of the pleadings, so
far as respects the circumstances of the col-
lision, and all the matters of fact to be deter-
mined by the court.

Since the suit was commenced, the parties
liave examined more than one hundred wit-
nesses; and their testimony, as exhibited, fills
nearly four hundred pages of the transcript.
In that state of the case, a particular analysis of
the testimony of each witness, and a compari-
son of (heir respective statements, will not be
attempted, as its effect would be to extend the
investigation beyond all reasonable limits, with-
out any practical benefit to either party. All
that can be done, under the circumstances, will
he to state the material facts proved, and to re-
fer to such brief portions oi the evidence as
seems to be necessary to confirm our conclu-
sions. Conflicting testimony we have indeav-
ored to reconcile, where it was possible; and
when not so. we have drawn our conclusions
from the weight of the evidence and the proba-
tyilities of the case.

With these explanations, wc will proceed to
state the material facts, so far as respects the
steamer Atlantic.

She left Buffalo between nine and ten o'clock
in the evening of the day preceding the dis-
aster, having on board, in addition to her freight,
nearly five hundred passengers, of whom more
than one hundred were lost. At the time of her
•departure, she was in every respect seaworthy,
and was well manned and appointed for the
Yoyage, with a competent master and a suflS-
dent and competent crew. Steamers, on leav-
ing Buffalo for Detroit, usually steer southwest
by west; and The Atlantic, following her accus-
tomed route, pursued that general course during
the night, until she made I^ong Point light, on
the Canada shore, when the officer in charge of
.her deck changed her course one fourth of a
point to the southward, in order to give the light
a wider berth. When abreast of that light, and
about two miles distant from it, the steamer re-
sumed her former course, about southwest by
west, and continued on her voyage, without any
other chanse, until the second mate, who had
charge of the deck, discovered two white lights

See 21 How.

three fourths of a point off her larboard bow,
when he ordered the wheelsman to port her
helm, and the order was obeyed.

Nothing additional occurred during the voy-
age, of any importance in this investigation, up
to the time those lights were discovered by the
second mate. His watch, which commenced
shortly after the steamer was outside, had not
then closed and of course he was properly in
charge of the deck. He testinis, that at first
he saw only one light, and then another, and
that they appeared like glimmering stars, and
at first view he was unable to determine whether
they were stars or the lights of a vessel ; but
upon further observation he supposed they were
the lights of a sail vessel, and accordingly gave
the order to port the helm. That order was
^iven while the officer who issued it was stand
mg in the pilot house, which was situated on
the forward part of the hurricane deck, at the
usual elevation in steamers of that description,
above the water line of the vessel. She was a
first-class steamer, of eight hundred tons bur-
then, and was moving through the water at the
rate of sixteen miles an hour, and the officer in
charge of the deck, and who gave the order to
port the helm, was the only lookout stationed
on any part of the vessel ; and it is not pretended
that either officer or seamen, other than the
officer of the deck, had been assigned to that
dutv during the voyage.

Two other persons, the wheelsman and a pas-
senger, were in the pilot house with the second
mate, both when he discovered the lights and
when he gave the order to port the helm; and
the evidence shows that he went there for a pur-
pose connected with his duty as officer of the
deck; and be testifies that he had not been in-
side more than two minutes when he first saw
the light. After having giving the order to port
the helm, he immediately left the position where
he had been standing, an4 went on to the top of
the pilot house, and then he says the signal lights
of The Atlantic, which were properly displayed,
and were burning brightly, shone on to the ap-
proaching vessel, and enabled him to see that
she was a steamer, and that the two vessels were
very close together. His own account of what
followed shows conclusively that the knowl-
edge he then for the first time obtained, as to
the character of the approaching vessel, was too
late to enable him to adopt the necessair pre-
cautions to avoid the impending peril. On
seeing the propeller, and ascertaining the danger
of his situation, arising from the closeness of
her approach, he orderea the helm of the steamer
hard a-port, and, without waiting to know
whether the order was obeyed, put his hand on
to the telegraph, with a view to give the signal
to stop; but perceiving that the collision was
almost certain, he omitted to signal, concluding
that the only chance of safety was to rely upon
the velocity of the steamer, and the operation
of her helm under the order already given,
which, it seems, was promptly obeyed. Pre-
cautionary measures could not then be effectu-
ally adopted, as the time and opportunity to
render them available had passed, and the two
vessels almost immediately came together, the
propeller striking the larboard side of the
steamer near the forward gangway, crushing
through the guard and hull of the steamer, and
otherwise damaging her, so that before she had

548-572

SUFKBMB COUBT OF THB UnITBD StATBA.

Dbc. Tsrm^

run a mile she filled with water and sunk in the
lake. These facts are drawn from the testimony
of the witnesses who were on the deck of the
steamer or in her pilot house, and are believed
to be substantially correct, and to correspond
with the events as they occurred. They all
concur in saying that they did not see any sig-
nal lights on the propeller as she approached,
and supposed she was a sail vessel till it was too
late to stop the engine, and affirm, most confi-
dently, that if g^xi signal lights had been
shown, thev would have seen them. Those
shown by the steamer were seen by the mate of
the propeller when the vessels were three miles
apart, and several witnesses testif^r that such
lights, if properly shown, as required by law,
could be seen at the distance of four or five
miles ; and in view of the evidence as to the state
of the weather and the character of the night,
we have no doubt they might have seen, if
burning brightly, in ample time to have pre-
vented the disaster. All the witnesses agree
that the wind was light, and the surface of the
lake smooth, and tney generally admit that
there was some mist or haze on the water; but
assert in the most positive terms that it was star-
light overhead, and no one pretends that it was
unusually dark. Good signal lights, under such
circumstances, if burning brightly, could readily
be seen, notwithstanding the haze on the water,
at a sufficient distance to enable steamers ap-
proaching each other to adopt every necessary
precaution to avoid a collision.

Having stated the principal facts proved, as
they appear to the court, so far as respects the
steamer, we will now proceed to the examina-
tion of those of a corresponding character
which relate to the propeller. More difficulty
attends this branch of the inquiry, on account
of the conflicting state of the testimony, and
the consequent uncertainty in which the facts
are involved. Some of the facts, however, are
fully proved, and to* those we will first invite
attention. As alleged in the answer, the pro-
peller left Cleveland, on the day preceding the
disaster, on her downward trip from Chicago
to Ogdensburgh, which was to^ be reached
through the Welland Canal. No 'doubt is en-
tertained that she was a good, strong vessel, and
there is nothing in the testimony to call in
question either tlie competency of her master
or the sufficiency of her crew. It appears, by
the testimony of her master, that she left Cleve-
land about noon, and ran down opposite Grand
River by daylight; that after arriving there she
steered, for about an hour, east-northeast, and
then turned to northeast by east till the vessels
came togetlier. This last statement, however,
is obviously mere hearsay, as the watch of the
mate commenced at twelve o'clock at night,
and he continued in charge of the deck until
half past two in the morning, when the collision
occurred; and the master admits, what it is
important to observe, that it was usual when
they got down off Long Point, and found
tl^emselves out of the way, ' 'to steer according-
ly." by which we understand him to mean that
it was usual, when they got down there, to
regulate the course of the propeller with re-
spect to the well-known position of Long
Point, and' perhaps with a view to make that
lij2ht, in the further progress of the voyage,
which is proved to be the most prominent liglit

916

on the route. At twelve o'clock the mate took
charge of the deck, and he says he kept the
propeller on a course of east-northeast until
two o'clock, and then hauled her off from the
southern shore, to northeast by east, and that
soon after he saw a light two points or two and
a half points off her starboard bow. Could
this statement of the mate, in r^ard to the
course of the propeller, be regarded as correct,,
we should be obliged to acquit both vessels,
upon the ground thAt the alle^^ collision never
took place, as obviously it could not, assuming^
that the course of the steamer has been correct-
ly ascertained. His testimony in this particular,
therefore, must be considered as founded in
mistake; and it is proper to remark that he is
contradicted in so many particulars, and is
proved to have made so man^ contradictory
statements in respect to the circumstances of
the collision, that we deem it unsafe to give
full credence to his statements, especially in
regard to such matters in controversy as ob-
viousljr involve the vindication of his own con-
duct in the management of the vessel. Re-
lectin^ his statement as incredible, because
inconsistent with the admitted and well-estab-
lished facts in the case, we are left without anv
satisfactory testimony in the record from whid^
the precise course of the propeller, for one or
two hours before the collision, can be ascer-
tained with any reasonable degree of certainty.
Looking at the other facts and circumstanoea
in the case, there is much reason to conclude
that the inexperience and ignorance of the
mate led him, in the early part of his watch,
to adopt a route somewhat to the southern
shore than had been usual, until he got dowD
off Long Point; and finding, on arrivmg there,
that he was too far to the southward, he then
changed the course of the propeller to the one
she was pursuing when the lights of the steamer
were first discovered ; and this view of the case
finds support in the fact proved by the master,
that it was usual to correct' any irregularity in
the course at that stage of the voyage. That
the propeller was south of The Atlantic when
her mate discovered the signal lights of the
latter vessel, is proved beyond. all reasonable
doubt and is, in effect, admitted by the mate in
that part of his testimony where he says that
the bearing of her lights, when he first saw
them, was two or two and a half points off the
starboard bow of the propeller. Her course
then was in an easterly direction, and it ia
equally well established that her white lights
were first seen on the steamer, whose course
was westerly off her larboard bow. Assuming
these two facts to be true, of which there is no
doubt whatever, and it necessarily follows that
the propeller was south of The Atlantic, and
such, it is believed, was the real fact. Both
vessels were injured by the collision, and addi-
tional light is shed upon this inquiry by the
evidence in the case as to the localities in the
respective vessels where the damage was re-
ceived. All. or nearly all, the damage received,
by the propeller was in her starboard bow, near
the stem, and it was the larboard side of the
steamer, near the forward gangway, that was
so crushed and broken In as to cause her to fill
with water and sink. These circumstances^
taken in connection with the well-established
fact that the mate of the propeller, who had

6« U. »•

1853.

Ohambbrlaik y. Ward.

548-572

Gharee of her deck, persistently maintained
that ne had a right to keep his course, and that
it was the duty of the steamer to adopt the
necessary precautions to keep out of the way,
famish strong grounds of presumption that no
considerable change was made by the propeller
until the peril was impendiUj^ and the collision
inevitable. Any change of course, if made
under such circumstances, whether to the star-
board or larboard, would not ccmstitute a com-
pliance with the rules of navigation, because it
would be too late to accomplish the purpose for
which precautions are enjoined.

Much discussion also took place at the bar
upon the question whether the propeller, at the
time of the collision, had proper signal lights
displayed, as required by law. On that point,
the evidence shows that her sisrnal lights were
seasonably set and properly displayed at the
usual hour, and were burning brightly through-
out the early part of the night; and no doubt
is entertainea that they continued to burn, so
as to answer the purpose for which they are
required, till after twelve o'clock, when the
watch of the mate commenced. It is, how-
ever, clearly proved that it was usual and neces-
sary to clean and trim them, and perhaps supply
them with additional oil, about the middle of
the night; and the steward, who was assigned
to that service, and whose duty it was to see
that it was properly performed, testifies that
her signal lights were neglected in that particu-
lar on the night of the collision, and conse-
quently, were burning so dimly when it occurred
tliat they could not be seen at a distance beyond
twice the length of the vessel; and in confirma-
tion of this statement, he says that, ahortly
after the vessels came in contact, he took down
the signal lights of the propeller, by order of
the master, and brushed off the crust from the
wicks and trimmed them, and testifies positively
that they were dim.

1. Our conclusions upon this state of the evi-
dence will now be briefly stated, commencing
with the propeller; and we find that she was in
fault, because she did not have a competent
and skillful officer in charge of her deck, and
because it appears that his want of qualifica-
tions and unskillfulness contributed to the col-
lision. Owners of vessels, and especially those
who own and employ steamships, whether pro-
pellers or side-wheel steamers, must see to it
that the master and other officers intrusted
with their control and management are skillful
and competent to the discharge of their duties,
as. in case of a disaster like the present, both
the owners and the vessel are responsible for
their acts, and must answer for the conse-
quences of their want of skill and negligence:
and this remark is just as applicable to the
under officers, whether the mate or second
mate, as to the master, durin^all the time they
have charge of the deck. That the mate in
this case was substantially without experience
in navigating steamers, and utterly destitute of
the requisite information to fit him to determine
the proper courses of the voyage, are facts so
fully proved that it is difficult to regard them
as the proper subjects of dispute; and what is
more, the master knew his unfitness when he
started on the voyage, and stated, before the
vessel left Cleveland, to the effect that he was
afraid that he was going to be sick, and that he

See 21 How.

bad no confidence in the mate. Some of the
owners also distrusted his fitness when they
employed him, and made an effort to engage
another person in his stead ; and one of them,
after having heard of the disaster, expressed
his reffret that the person to whbm he first ap-
plied had not taken his place. We forbear to
pursue this branch of the subject, only remark-
ing, in addition to what has already been stated,
that the evidence to establish his unfitness and
incompetency for the place is full and con-
clusive.

2. The propeller is also in fault because
she did not have signal lights properly dis-
played, as required by law; and this conclusion
IS intended to apply to the entire period after
the steamer came in sight, the weight of the tes-
timony tending strongly to show that they were
little better than if they had been actually ex-
tinguished. At all events, it is satisfactorily
shown that they were burning so dimly as not
to fulfill the purpose and object for which they
are required. There is some conflict in the
statements of the witnesses on this point; but
the testimony of the steward, whose duty it
was to repair them, and who, by the command
of the master, attended to the service shortly
after the collision, appears to be entitled to be-
lief, and when considered in connection with
the positive affirmations of the witnesses for the
libelants, that they looked for signal lights on
the propeller as she approached, and saw none^
seems to be decisive of the question. Signal
lights are required by the Act of Congress, in
order that they may be seen by an approaching
vessel in season to enable those in charge of her
to ascertain and adopt the necessary precautions
to prevent a collision with the vessel whose
lights are so displayed ; and when they are ex-
tinguished, or burning so dimly as not to fulfill
the purpose and object for whidh they are re-
quired, they do not and cannot constitute a
compliance with the Act of Conffress.

8. The propeller is also in rault, for the
reason that the officer in charge of her deck
neglected seasonably and effectually to change
the course of the vessel, and persistently kept
her on her course after he discovered the signal
lights of the steamer,. rendering it highly proba-
ble that it was this error, no less than the for-
mer, which contributed to the collision. Many
circumstances tend to show that if he had
adopted the usual precaution the disaster might
have been avoided. Comment upon this prop-
osition is unnecessary, as in its legal aspect it
imputes to the propeller a palpable violation of
the rules of navigation, and the theory of fact
on which it rests is substantially supported by
the testimony of all the witnesses on both vessels,
and by no one more fully than by the mate of
the propeller, who had charge of her deck. He
admits that he saw the si^nallight of the steam-
er when she was three miles distant, and he ex-
pressly states that the propeller was kept pre-
cisely on her course, until he saw that the
steamer was very near, and then he says he
gave the signals to stop and back; and at the
same time that be signalled to stop, he told the
man at the wheel to put the' helm hard a-star-
board, and he says the order was obeyed.

Full damages are claimed by the libelants,
not only on the ground that the evidence shows
that the steamer was without fault, but upon

817

64&-672

SUFHBMB GOUBT OF THB UnITBD StATBS.

D£0. Tkrm,

the further ground that the pcopeller, under
the circumstances of this case, is made liable by
the 5th section of the Act of the 9d of March,
1840, for all the loss or damage which the
steamer sustained. A brief reference, however,
to the provision referred to, will show that the
construction cannot be supported. Steamboats
and propellers navigating the lakes are required
by that section to carry a triangular light
shaded green on the starboard side, and red on
the larboard side, with reflectors, and to be of
a size to insure a good and sufficient light; and
the owners of such vessels, neglecting to com-
ply with the regulation, are aeclaredf liable to
the injured party for all loss or damage result-
ing from such neglect. It is insisted by the li-
belants that the owners of the propeller, inas-
much as she did not show good and sufficient
signal lights, are liable to them in this case,
under a proper construction of that provision,
for all the damage occasioned to the steamer by
the collision. Such is not the language of the
section, and we think the construction con-
tended for would be both unwarranted and un-
reasonable. Owners of the vessels named in
that section are made liable for the conse-
quences resulting from their own acts, or from
tne acts of those intrusted with the control and
management of their own vessel, and not for
any damage resulting from the misconduct, in-
competency, or negligence, of the master or
owners of the other vessel. They are made lia-
ble for their own neglect, and not for the neg-
lect of the other party. Failure to comply
with the regulation, in case a collision ensues,
is declared to be a fault, and the offending par-
ty is made responsible for all loss or damage
resulting from the neglect; but it is not declared
by that section, or by any other rule of admi-
ralty law in the jurisprudence of the United
States, that the neglect to show signal lights,
on the part of one vessel, discharges the other,
as they approach, from the obligation to adopt
all reasonable and practicable precautions to
prevent a collision. Absence of signal lights
in cases falling within the Act of Congress ren-
ders the vessel liable to the extent already men-
tioned, but it does not confer an v right upon the
other vessel to disregard or violate the rules of
navigation, or to neglect any reasonable and
practicable precaution to avoid a collision, which
the circumstances afford the means and oppor-
tunity to adopt. Steamers displaying proper
signal lights are, in that respect, without fault;
but they have other duties to perform to pre-
vent collisions, besides comi)lying with that re-
quirement, and their obligation to perform such
other duties remains unaffected by anything
contained in the provision under consideration.
Ajb an illustration of our views upon the sub-
ject, we will suppose the case of two steamers
approaching on intersecting lines. They are
required by the Act of Congress to show signal
linits, in order that each may be seen by the
oUier in time to adopt reasonable and necessary
precautions to prevent a disaster like the pres-
ent; and if one has such lights, and the other
has not, yet if the one having such lights actu-
ally sees the other vessel as she approaches, in
ample season to avoid the collision, and neglects
to take any proper precaution to prevent it, and
it ensues, it cannot be said in such a case that
all the loss or damage resulted from the neglect

818

of the vessel without such lights, as the collision
might havb been prevented; and but for the
negligence or perverseness of those in charge
of the vessel showing lights, would never have
occurred. We are not prepared to admit that a
fair construction of the secdon referred to would
absolve a party, under such drcumstances,
from pecuniary responsibility. What the judg-
ment of the court would be in the case sup-
posed it is not necessary to decide, and ^e only
advert to it as an illustration, to show that the
construction of the Act of Ck>ngre8S contended
for cannot be sustained. All we mean to de-
cide is, that the neglect of the propeller to show
signal lights did not vary the obligations of The
Atlantic to observe the rules of navigation, and
to adopt all such reasonable and necessary pre-
cautions to prevent the collision, as the circum-
stances in which she was placed gave her the
opportunity to employ.

1. The Atlantic is also chargeable with fault,
because the officer in charge of her deck did
not exercise proper vigilance to ascertain the
character of the approaching vessel after he
discovered the white lights, which subsequent-
ly proved to be the white lights of the propell-
er. His excuse, that he supposed she was a
sailing vessel, under the circumstances of the
case, as shown in the evidence, is not satisfac-
tory. When he first discovered those lights,
the two vessels were at least a mile apart : and if
ir be true, as he states, that they appeared like
glimmering stars, we are satisfied, from the
evidence, that the distance must have been
much greater, as is evident from the character
of the night, and from the fact, which is fully
proved, that the red light of the steamer was
seen on the propeller at the distance of three
miles. Those white lights, though not the sig-
nal lights required by the Act of Congress,
were nevertheless sufficient to apprise the offi-
cer on the deck of the steamer that a vessel of
some sort was approaching; and if he had per-
formed his duty, the night being calm and the
wind light, he might have seasonably ascer-
tained that it was a propeller. They were large
globe lamps, such as are usually shown by sail
vessels, and were suspended in a similar man-
ner, and the weight of the testimony clearly
shows that they were bumins brightly ; and if so,
they would hardly appear like gummering stars
at the distance of a mile, on a smooth sea,
when at the same time the usual red lights car-
ried by steamers were plainly visible at three
times that distance. Two other persons were
in the pilot house with the second mate when
he discovered those white lights, one of whom
was a master mariner ; and although he says they
did not hold any conversation, there is much
reason to conclude that his estimate of the time
he remained there is somewhat short of the fact.
Master mariners, as well as other seafaring men,
are very apt to converse when they meet on the
theater of their favorite pursuit; and the state-
ment that they remained together in the pilot
house, even for two minutes, without speaking,
needs confirmation.

2. In the second place, The Atlantic is charge-
able wiUi fault, because the officer of her di^k
did not seasonably and effectually change the
course of the vessel, or slow or stop her engine,
so as to avoid a collision, after he discovered
the white lights of the approaching vessel.

68 U. S.

1858.

Wabd t. Chambbblain.

572-575

Whether his oeglect, to adopt those precautions
or some one of tnem, arose from inattention or
rashness, is immaterial; as, in either event, it
was a culpable omission of duty, plainly re-
quired by the rules of navigation in that emer-
^ncy, and one which the dictate of common
prudence, as well as a proper regard for the
safety of his passengers, should have prompted
him to perform; and the owners of the steamer
must answer for the consequences' of his negli-
^nce. His first order, to port the helm, was
not designed to change the course of the vessel
to any considerable extent, and only had the
effect to open the light of the other vessel half
a point.

This is admitted, and so is the more impor-
tant fact that no other change of course was
made until he gave the order hard aport,
which his own testimony shows was at the in-
stant of collision, and not until all reasonable
expectation of preventing it was gone. Nothing
additional was done to avert the disaster; and
the officer of the deck admits that the speed of
the steamer was not slackened at any time
throughout the entire period that elapsed after
he saw the white lights of the approaching ves-
sel.

On this ffround, we think the steamer was
clearly in rault, and that her owners are re-
sponsible for the consequences of the negli-
gence or mismanagement of the officer in charge
of the deck.

8. In the third place. .The Atlantic was in
fault, because she did not have a vigilant and
sufficient lookout. No person, either officer or
seaman, was assigned to that duty, except the
second mate, who also had charge of the deck
and the control and management of the vessel.
According to his testimony, the officer of the
deck was not expected to occupy any one par-
ticular place on the vessel; but 'was sometimes
on the top of the promenade deck, either on
the larboard or starboard side of the vessel —
sometimes in the pilot house, on the hurricane
deck — and sometimes on the top of the pilot
house; and, in accordance with this practice,
the wheelsman of his watch, who was called
by the libelants, testifies that he saw him round
on the deck, attending to his duties, during all
the time he was at the wheel. Steamers navi-
gating in the thoroughfares of commerce must
have constant and ^gilant lookouts stationed
in proper places on the vessel, and charged
with the duty for which lookouts are required,
and they must be actually employed in the per-
formance of the duty to which they are as-
signed. To constitute a compliance with the
requirements of law, they must be persons of
suitable experience, properlv stationed on the
▼easel, and actually and vigilantl v employed in
the performance of the duty; and for a failure
in either of those particulars, the vessel and her
owners are res|K)nsible.

lA)okout8 stationed in positions where the view
forward or on the side to which they are as-
signed is obstructed, either by the lights, rig-
ging, or spars of the vessel, do not constitute a
compliance with the requirement of the law;
and, in general, elevated portions, such as the
hurricane deck, are not so favorable situations
as those more usually selected on the forward
deck, nearer the stem. Persons stationed on
the forward deck are less likely to overlook

8ee 81 How.

small vessels, deeply laden, and more readily
ascertain theif exact course and movement.
Ocean steamers usually have two lookouts in
addition to the officer of the deck, and in gen-
eral they are stationed one on the larboard and
the other on the starboard side of the vessel, as
far forward as possible, and during the time
they are so engaged they have no other duties
to perform; and no reason is perceived why any
less precaution should be taken by first-class
steamers on. the lakes. Their speed is quite as
great, and the navigation is no less exposed to
the dangers arising from the prevalence of mist
and fog, or from the ordinary darkness of the
night; and the owners of vessels navigating on
those waters are under the same obligations to
provide for the safety and security of life and
property as attaches to those who are engaged
in navigating the seas.

Apply these principles to the present case,
and it is obvious that the officer in charge of
The Atlantic was not a sufficient lookout. He
stood the watch of the master, who was below ;
and, as the officer of the watch, he had the
charge of the deck and the control and manage-
ment of the vessel; and in the midst of his va-
ried duties it is scarcely possible that he could
give his undivided attention to the special duty
required of lookouts.

Not long before the white lights of the ap-
proaching vessel were discovered, he had occa-
sion to go into the pilot house, to look at the
compass; and there is much ground to presume
that the disaster is more attributable to that cir-
cumstance than any other in the case, except
the absence of proper signal lights on the pro-
peller.

We are of the opinion that it is a case of
mutual fault, and that the decree of the Cir-
cuit Court, apportioning the damages, was cor-
rect.

The decree of the (Hrcuit Court, therefore, is
affirmed, mt?iout costs.

Dissenting, Mr. Justice Grier and Mr. Jus-
tice DanieL

Mr. Justice Daniel, dissenting:

In the case of The Atlantic and The Ogdens-
burgh, it is my opinion that the admiralty pow-
ers of the United States courts do not embrace
such a case.

8. C— 21 How.. 672.

Clted-22 How.. 471 ; 28 How.. 208: 8 Wall., 273 : 7
Wall., 648 ; 9 Wall.. 610 : 18 Wall., 479: 14 Wall., 858 :
91 U. 8., 215, 888, 098; 1 Brown, 140; 1 Cliff., 411; 1
Blss.. 481 ; 1 Low., 126 ; 1 Sawy., 188 ; 1 Bond., 450.

EBER B. WARD and STEPHEN CLEMENT,
Survivors of Samuel Wabd, Deceased,
Ajypts., ^

PHILO D. CHAMBERLAIN and JOHN H.
CRAWFORD, Claimants of the Propeller

OODENSBURGH.

(See S. C, 21 How., 57)^675.)

W(Mrd V. Chamberlain, ante, affirmed — Hght to
bring cross Ubd—practiee in.

The appellants In this suit were the libelants In the
of Chamberlain v. Ward, ante, 211, decided at

219

572-675

Bdfreiis Court of thb Unitbd Statba.

Djec. Tbrit,

the pretent term, and the questions to be deter-
mined have respect to the 8ame»subJeot matter
which was In controversy In that case, and come
before the court upon the same pleadings and tes-
timony.

The questions In that case, and the conclusions
there stated, and the reasons for them, are applica-
ble to this case and need not be repeated.

Respondents in a pendiner Ubel have the right. In
a proper case, to Institute a cross Ubel to recover
damakes against the libelants In the primary suit ;
but they should file their libel, take out process,
and have It served In the usual way.

When that Is done, the libelants In the first suit
regularly become respondents In tHe cross Ubel,
and as such, they must answer or stand the conse-
quences of default.

Argued Feb, 16, 1869. Decided Ma/r. 11, 1869.

APPEAL from the Circuit Court of the Unit-
ed States for the Southern District of Ohio.
The case is stated by the court.
See, alao, the preceding case, of which this
case is a branch.

Messrs. N. H. SwsLyne and John S. New-
berry, for appellants..

Messrs. R. P. Spalding and EL Stan-
bery, for appellees.

See abstract of argument in the preceding
case.

Mr. Justice Clifford delivered the opinion
of the court :

This is an apoeal in admiralty from a decree
of the Circuit Court of the United States for
the Southern District of Ohio. The appellants
in this suit were the libelants in the case of
Ward V. Chamberlain et al. , decided at the pres-
ent term, and the questions to be determined
have some^ respect to the same subject-matter
which was in controversy in that case, and come
before the court upon the same pleadings
and testimony. In that case, Ward et al., as
owners of the steamer Atlantic, filed their libel
in the district court against Chamberlain et
al., as owner of the propeller Ogdensburg,
to recover the damage sustained by the steamer
in a collision which occurred between those
vessels on the 20Lh day of August, 1852, while
navigating on the waters of Lake Erie. After
the process was served, Chamberlain et al. ap-
peared and filed their answer to the libel, in
the answer, after setting up several defenses,
they alle^d, among other things not necessary
to be noticed, that the collision was not occa-
sioned by the negligence, inattention, or want
of proper care and skill, on the pan of the mas-
ter or crew of the propeller, but wholly through
the fault, neglect, and unskill fulness, of the
master and crew of the steamer, and set forth
the grounds on which those allegations were
based, and prayed that their answer to the libel
might also be taken as a cross libel in their be-
half against Ward tt al.,to recover the damage
which the propeller sustained by the collision.

On the 26th day of April, 1858. the parties
entered into an agreement, which is a part of
this record, that the answer of the respondents
should operate as a cross libel, and that the
claims of both parties should be considered bv
the court in weighing the evidence, and be ad-
judicated upon in the final decree. Afterwards,
at the final hearing in the district court, on
the merits of the case, the libel was dismissed
upon the ground tliat the steamer was wholly

220

in fault; and under the agreement of the par-
ties that the answer should operate as a cross
libel, a decree was entered in favor of Cham-
berlain et cU., for the amount of the damage
occasioned to the propeller. Ward et al., aa
owners of The Atlantic, appealed to the circuit
court, where fhe decree of the district court
dismissing the libel and awarding damages to
the piiopeTler, as upon a cross libSl, was in all
things reversed. The reversal was made upon
the ground that the collision was the result of
mutual fault, and that the damages and coet»
ought to be equally divided. Injuries had been
sustained ay the prooeller to the amount of
$8,000, and the agreea value of the steamer at
Uie time of her loss was $75,000, and accord-
ingly a decree was entered in favor of Ward
et al. for the sum of $36,000, together with a
moiety of the costs in both courts. From that
decree Chamberlain etal. appealed to this court,
and the i^peal was regularly docketed, and the
case has been heard and decided b^ the court,
upon the libel, answer and proofs, as exhib-
ited in the transcript. At the same time Ward
et al., the present appellants, also appealed
from so much of the decree of the cirouit court
as found The Atlantic in fault, and directed
that the damages should be divided. They ap-
pealed to the respondents in the cross libel, and
under the agreement before referred to, aa
sanctioned in the district court, filed a separate
copy of the record, and regularly docketed the
appeal, as in the case of a cross libel, the an-
swer in the other record constituting the libel
in this case.

We have been thus particular in adverting
to these proceedings, in order that the relation
which the respective parties bear to this con>
troversy, and the state of the pleadings, may
be fully and clearly understood, and for the
purpose of remarking that they are unusual^
and do not meet the approval of this court,
and ought not to be drawn into precedent. Re-
spondents in a pending libel have the right, in
a proper case, to institute a cross libel to re-
cover damages against the libelants in the pri-
mary suit; but they should file their libel, take
out process, and have it served in the usual
way; and when that is done, the libelants in
the first suit regularly become respondents in
the cross libel, and, as such, they must answer
or stand the consequences of default.' Regu-
larity in pleading is both convenient and essen-
tial m judicial investigations, and such depart-
ures from the usual practice as are exhibited in
this record ought not to receive countenance.
This appeal was taken, and has been prose-
cuted upon the ground that the circuit court
erred in coming to the conclusion that The At-
lantic was in fault. That question we have al-
ready considered and decided in the other ap-
peal, and the conclusions there stated, and the
reasons for them, are applicable to this case.
As before remarked, both appeals were taken
from the same decree, and the questions pre-
sented for the decision of the court are in all
respects the same, and depend upon the same
testimony. In that case, the court held that
The Atlantic was chargeable with fault upon
three grounds:

1. Because the officer in charge of her deck
did not exercise proper vigilance to ascertain
the character of the approaching vessel, after

62 U.S.

1858.

WHtTB V. Vermont and Mass. R R. Co.

576-578

be diBCOvered the white lights, which subse-
quently proved to be the white lights of the
propeller.

2. That fihe was also in fault, because the
officer of her deck did not seasonably and ef-
fectually change the course of the vessel, or
slow or stop her engines, after he discovered
those lights, so as to prevent a collision.

8. That she was also in fault, because she
did not have a vigilant and sufficient lookout.

Our reasons for these conclusions are fully
stated in the former case, and need not be re-
peated. Having already decided that the pro-
peller also was in fault, the necessary result is,
that the decision of the Circuit Court was cor-
rect.

The decree of the Oireuit Court, ther^ore, is
4iffirfned, without costi.

Dissenting, Mr, Justice Grier, and Mr,
justice Daniel.

SELDEN F. WHITE. Plff. in Er„

THE VERMONT & MASSACHUSETTS
RAILROAD COMPANY.

(See 8. C. 21 How.. 676-578.)

Bond* of railroad company — blanks in, by whom
filled'^construction of—negotiabiUty,

Bonds of defendant in error were issued by the
Company, in re^rular course and for a sufBoient
<M>nBlderation, to a citizen of Massachusetts, and
were payable in blanic, no payee belnflr inserted,
and came into the hands of the plaintiff through
several interveninir holders, in reerular course.
Held, that it was the intention of the Company, by
issuing the bonds in blank, to make them negoti-
able and payable to the holder, as bearer, and that
the holder might fill up the blank with his own
name or make them payable to himself or bearer, or
to order.

Until the plalntilf choose to fill up the blank, he is
to t>e regarded as holding the bonos as bearer, and
held them In this character till made payable to hlm-
eelf or order. At that time he was a citizen of New
Hampshire, and therefore competent to bring the
suit in the court below.

Repeated decisions by courts and judges of the
highest respectability, have settled the question
ofthe negotiability of this class of securities.

Argued Mar. 8, 1859. Decided Mar, 11, 1869.

IN ERROR to the Circuit Court of the Unit-
ed states for the District of Massachusetts.

The history of the case and a sufficient state-
ment of the facts, appear in the opinion of the
court.

Mr. Henry- M. Park, for the plaintiff in
error:

The first question is, whether these choses
in action are, or are not, within the protection
of the rule as to negotiable paper laia down in
Bank of Kentucky v. Wwter, 2 Pet., 818;
Smith V. Clapp, 16 Pet., 125; Wood v. Dummer,
3 Mason, 804.

We contend :

1. That they were notes, and negotiable
notes.

Morrii Canal Co. v. Fisher, 1 Stock. Ch.,
667; Mechanics* Bank v. N. T. 4b N. H. By.
Co., 18 N. Y., 599; Carr v. Lefevre, 27 Pa.
State. 418; DelafiM ▼. State of lUin&is, 2
Hill. 159; Craig v. City of Vieksburg, 81 Miss.,
216.

This is but carrying out certain familiar de-
cisions of the En>i:lish courts in regard to ex-
chequer bills.

Oorgier v. Mieville, 8 B. & C, 45; Wookey v.
Pole, 4 B. & Al., 1; Lang v. Smyth, 7 Bing.,
284; Redf. on Railw., 595, 596; 1 Pars. Cont.,
240.

Following these authorities, we have the
right at all events to recover upon the money
counts. The instruments sued were payable to
bearer. They do not differ from promissory
notes of a private individual, payable to his
own order, and indorsed in blank before being
issued.

Gorgeir v. Mieville, 8 B. & C, 45; Omchley
V. Clarance, 2 M. & 8., 90.

2. If these instruments were not originally
negotiable, they were so when this action was
brought.

Statute of Mass., 1852, ch. 76; 1850. ch.
233; Chapin v. V. <fc M. B. B. Co., 8 Gray,
575.

8. The fact that these instruments bear the
corporate seal of the Company, does not exclude
them from being considered promissory notes.
The seal is but the evidence of a corporate act.
It is the proper evidence of every corporate act,
yet it does not make every instrument so at-
tested of necessity a deed. An instrument at-
tested by a corporate seal should be examined
before its character can be definitely pronounced
upon.

NOTB.— iyeootiobOUy of railroad bonds.

Bonds iflsued by a railroad company and payable
in blank, usually secured by a mortgage to trustees
are negotiable securities. Mercer County v. Rack-
et, 68 tJ. 8. (1 V^all.), 83 : Oelpcke v. City of Dubuque,
68 U. S. (1 Wall.), 176, 806 : Bronson v. La Crosse R.
U. Co., 60 U. 8. (2 Wall.), 288.

The negotiability of such bonds as are ordiaarily
issued by municipal, railroad and other corpora-
tions, drawn payable to bearer, and intended for
sale in the public market, is sustained to a full ex-
tent by many adjudications. 64 U.S. (28 How.), 881 :
Woods V. Lawrence Co., 66 U. S. (1 Black), 886;
Moran v. Com'rsof Miami Co., 67 U. 8. (2 Black), 722 ;
Mercer Co. v. Hacket,68 U. 8. (1 Wall.), 05; Gel-
pcke V. City of Dubuque, 88 TI. 8. (1 WaU.), 175 ; Van
Hoatrup v. Madison aty, 68 U. 8. (1 Wall.), 201;
Meyer v. Muscatine, 68 U. 8. (1 Wall.), 382 ; Thomson
T. Lee County, 70 U. 8. (8 Wall.), 227 ; Murray v.
Lardner, 60 U. 8. (2 Wall.), 110; Rogers v. Burling-
ton, 70 IT. 8. (8 Wall.),- 654; Railroad Company v.
Howard, 74 U. 8. (7 Wall.), 802 : Braincrd v. N. Y. &
Harlem R. R. Co.. 25 N. Y., 406 ; Conn. Mut. L. Ins.
Co. T. Cleveland, &c., R. R. Co., 41 Barb 0 ; 15 Conn.,
502 ; 31 Conn.. 842 ; 20 Ind., 467 ; 18 Ind., 06 ; Railway v.
Clearlay, 13 Ind., 161; Cbapin v. Vt. A Mass. R. R.

Sec 21 How.

Co., 8 Gray, 675 ; Craig v. City of Vieksburg. 81 Miss.,
216; Arents v. Commonwealth,18 Gratt,. 838; 11 Wis.,
488; 10 Iowa, 218; 16 Ohio St., 146; Nat'l Exch'ge
B'k V. Hartford. Stc, R. R. Co., 8 R. I., 370 ; Langston
V. 8. C. R. R. Co., 2 So. Car. N. 8., 248.

No judgment conceding their negotiability has
denied the additional feature of their similitude of
chattels. City of Memphis v. Brown, 11 Am. L.
Reg., 620; 5 Am. L. T. 424 ; 6 West, Jur., 405.

Bonds of railroad companies and other corpora-
tions payble to A, or bis assigns, and assigned by
A in blank, are transferable by delivery. Brain-
erd V. N. Y. & Harlem R. R. Co., 10 Bosw., 382.

State bonds and railroad bonds are negotiable
securities ; the title to which will pass bv delivery,
and unlike certificates of stock, are valid securities
in the hands of btma fide holders against existing
equities between the parties. Flnnegan v. Lee,'
18 How.. Pr., 186.

Where in an instrument for the payment of
money— railroad bonds— the name of the payee
i» left blank, with the intention that such instru-
ment may be transferred by delivery, any lawful
holder may fill the blank with his own name as
payee. Hubbard v. N.Y. & Harlem R. R. Co., 14
Abb. Pr., 275 ; 8. C, 86 Barb.. 286.

221

67Wi78

BUPBKMK Ck>0BT OP THK UkITSD STATBfi.

Dec. Tjebm^

Thus an answer by a corporation in equity,
must be under its seal.

3 Daniels Ch. Pr., 844.

Yet it is not a deed.

See, also, 1 Kyd Corp., 267; Grant, Corp.. 56.

4. If it be treated as a deed, then this plaint-
iff was not an assignee of a contract, but the
original obligee. This was. the intent of the
contract.

6. The same is true of these contracts,
whether they be treated as deeds or as notes not
payable to the bearer. It is in every respect
equivalent to a blank si^ature, intended to
have a note written above it, at the discretion of
the person to whom it is delivered.

lexiray. Emna, cited in 1 Anstr., 228; Oru-
Mey V. Olarance, 2 M. & 8., 90; Ontichip v.
Mann, 5 Taunt., 529; 1 Marsh., 29; Atwood v.
Oriffin, 2 C. & P.. 868.

6. The blank havine been purposely left to
be filled, we, as bona fide holders, might well
fill it.

Story, Prom. N., sec. 87; Bayl. Bills, ch. 1,
sec. 10; OrueMeyY. Glaranee, 2 M. & S., 90;
AtwoodY. Oriffin, 2 C. & P., 268; Ryan & M.,
425: 1 Stockton, 693.

7. We submit that it is not admissible for the
defendant to show that it issued such obliga-
tions in a form which gave no person a right
of action upon them. Tne instrument appears
only as filled up. The defendant does not
suggest any alteration of its tenor (unless it first
admit it to have been payable to bearer), but
offers to show that it has committed a fraud
upon the public by issuing an instrument which
was originally void, and this without any au-
thority m any person whatever to complete it.

Cases already cited.

Mr. Henry C. Hutchins, for defendant
in error:

1 . The instruments declared upon being under
seal, are not promissory notes within the Statute
of Axme, and are not, therefore, negotiable;
more especially as there was no payee named in
them, and no words of negotiability when
issued. When transferred to the plaintiff, they
were at most choses in action.

Oljfn V. BcUcer, 18 East, 509; Clarky. Farm-
ers* Jff, Co., 15 Wend.. 256; Zww* v. WUmu, 5
Blackf.. 870; Brovnn v. Lockhart, 1 Mo., 409,
(289); Gargier v. MiemUe^d B. & C, 4&;Warren
V. Lynch, 5 Johns., 289; Higgins v. Bogan, 4
Harr. Del, 30; Parks v. Duke, 2 McCord, 880;
I[faer V. Floyd, 4 McCord, 159; Barry v. Mer-
chants* ^Bxcfiange Go., 1 Sandf. Ch., 280; Bnt-
hown V. Eoyle, 18 C. B.. 873; HibblewhUe v.
M^Manne, 6 M. & W., 200.

The cases cited by the plaintiff in error,and ap>
p)arentlv in conflict with the above, are distin-
guishea from the present case in this, that they
were all cases where the bonds were payable to
bearer, or to a person named or bearer; they
were complete contracts.

2. The Act of March 30,1852, of the Statutes
of Massachusetts, does not apply to these bonds.

(a) Because they do not come within its
terms. They were not payable to the bearer or
some person designated, *' bearer,'' or " order."

Chcminy. F. 3b M. R. B. Co., 8 Gray., 575;
Sup. Ct. of Mass.

iP) Because the plaintiff became the holder
of these bonds before the passage of the Art in
question.

222

8. If the Act of March 80,1852. was held to be
applicable, it would impair the obligation of the
contract. It would change the de^ndant's ob-
ligation, fram a chose in action to a negotiable
instrument, and would be unconstitutional.

Planters* Bank v. Sharp. 6 How., 801 ; Dun-
das V. Bowler, 8 McL., 897.

4. The court below had no jurisdiction of
this suit.

11th sec. Judicary Act of 1789; 1 U. S. Stat.
at L., 79; Sheldon v. SOI, 8 How., 441.

It being admitted by the agreed statement
that the bonds in suit were first issued to a
citizen of Mass., who could not have brought
suit thereon in the court below, the plaintifT
cannot maintain this action, because if there
was a valid contract made by tlie defendant
with anyone, it must have been with the first
taken, and these bonds being unnegotiable, the
plaintiff must claim as assignee or not at all.

5. The insertion of the words "Selden F.
White," and the words "or order," by the
plaintiff, in these bonds, without theknowled^
or consent of the defendants, was a material
alteration, and vitiated them.

Story, Prom. N., sec. 87; Bruce v. Weetooti,
8 Barb., 374; Johneonv. Bank (7.8,2 B. Mon.^
810; KniUy. WiUiams, 10 East, 431.

6 In the case of a bond , there is no presumed
authority in the holder to insert his own name
as payee and bring suit. To allow it, would be
to change the very character of the instruments

Enthoven v. ffoyle, 13 C. B., 378; Hibhle
white Y. M' Marine, 6 M. & W., 200.

7. If this plaintiff, having derived title to
these bonds trom a citizen of Mass., could fill
up the blanks with his own name and bring his
action in the court below by virtue of the Stat-
ute of Mass., when but for that Act he could
not bring such action, it would follow that the
Legislature of Mass. can enlarge the Jurisdic-
tion of the courts of the United States.

Dromgoole v. Bank, 2 How., 241.

Mr. Justice Nelson delivered the opinion of
the court:

This is a writ of error to the Circuit Court,
of the United States for the District of Massa-
chusetts.

The suit was brought in the court below by
the plaintiff (White) against the Company,,
upon several bonds iaau^ by the same.

The case was presented to the court upon an
agreed state of facts, and, among others, that
the bonds in question were issued by the Com-
pany, in regular course, and for a sufficient
consideration ; and that payment had been de-
manded and refused. Coupons for the accru-
ing interest, previous to the maturity of the
bonds, had been duly paid.

It was further agreed that bonds of this de
scription, issued by the Company, were sold in
the market, and passed from hand to hand by
deliverv, at prices varying according to the
state of the market; ana that those in quesdoa
were issued at or about their date, to a person
a citizen of Massachusetts, and were payable
in blank, no payee being inserted; that they
came into the hands of the plaintiff through
several intervening holders, in regular course;
and that he then and since lived in the State of
New Hampshire, and, before this suit was
brought, filled up the blank by inserting ** Sel-

62 U. S.

1858.

Walkbi^ v. Smith.

679-583

den F. White, or order/' the name of plaiatiff,
without the knowledge or consent of the de-
fendants.

The court ruled that the suit could not be
sustained, for want of jurisdiction^

The ground upon which this ruling below is
sought to be maintained is, that these bonds
were issued to citizens of Massachusetts; and
as they could not be regarded as negotiable in-
struments, or, if negotiable, not payable to
bearer, the plaintiff was disabled from suing in
the federal court, within the prohibition of the
11th section of the Judiciary Act. 15 Pet.,
125; 3 Pet.. 818; 3 How.. 574. 8 How., 441.

In answer to this ground, we think it quite
clear, on looking into the a^^'eed state of facts,
in connection withlhe bonds and the mortgage
ffiven to secure their payment, that it was the
intention of the Company, b^ issuing the bonds'
in blank, to make them negotiable, and payable
to the holder, as bearer, and that the holder
might fill up the blank with hie own name, or
nii&e them payable to himself or bearer, or to
order. In other words, the Company intended,
by the blank, to leave the holder his option as
to the form or character of negotiability, with-
out restriction. If the utmost latitude, in this
respect, was not intended, why leave the payee
in blank when issuing the bonds, or why not
fix the limit of negotiability, or negative it alto-
gether ? To adopt any other conclusion would
seem to us to be unjust to the Company, for
then the blank would be wholly unmeaning;
or if any, a meaning calculated, if not in-
tended, to embarrass the title of the holder.

Assuming, then, that these bonds were ip-
tended to \)e made negotiable, we do not see the
difficulty suggested in maintaining the suit in
the federal court; for, until the plaintiff choose
to fill up the blank, he is to be regarded as
holding the bonds as bearer, and held them in
this character till made payable to himself or
order. At that time he was a citizen of New
Hampshire and, therefore, competent to bring
the suit in the court below.

As to the negotiability of this class of securi-
ties, when shown to be intended that they
should possess this character by the form in
which issued, and mode of giving them circu
lation, we ihink the usuage and practice of the
companies themselves, and of the oapitalists
and business men of the country, dealing in
them, as well as the repeated dedslons or rec-
Qffliition of the principle by courts and judges
of the highest respectability, have settled ue
question.

Morris Canal, etc., Co, v. Fisher, 1 Stockton,
667, 699; Ddafield v. lOinois, 2 Hill, N. T.,
177; 8 8. C, Paige Ch., 527; Mae^i. Bank v.
If. r. and N. H, R jB. Co., 18 N. Y., 625;
Can- V. Le Fevre, 27 Penn., 418; Craig v. The
OUif of Vieksbufv, Si ma6.,2lQ\ Chafing. The
Vt. and Mass. R R. Co.,B Gray, 575, decided
Bept. 7, 1857, in Sup. Ct. of Mass.

indeed, without conceding to them the qual-
ity of negotiability, much of the value of these
securities in the market, and as a means of fur-
nishing the funds for the accomplishment of
many of the greatest and most useful enter-
prises of the day, would be impaired. Within
the last few years, large masses of them have
gone into general circulation, and m which
capitalists have invested their money; and it is

Bee 21 How.

not too much to say. that a great share of the
confidence they have accjuired, as a desirable
security for investment, is attributable to tlds
negotiable quality, as well on account of the
facility of passing from hand to hand, as the
protection afforded to the bona fide holder.

It is true that in England the law is, that a
bond delivered in blank, as it respects the
payee, is void, and the blank incapable of bein^
filled up by the holder, either upon an implied
or express parol authority from the maker.
This is maintained upon the principle that the
authority of an agent to make a deed for an-
other must be by deed; and also, that to ad-
mit the parol authority to fill up the blank
would, in effect, make a bond transferable and
negotiable, like a bill of exchange or exchequer
bill. UimewkUe v. MMoHne, 6 Mees. & W.,
p. 200, and Enthoven v. Hoyle ei al., in the
Exch. , 9 Eng. L. & Eq., 484.

The law had been otherwise held by Lord
Mansfield, in the case of Texira v. Evans, tiled
in Masteny. Miller, 1 Anst., 228; but was dis-
tinctly overruled by Park, B., in delivering the
opinion of the court in the case first aoove
cited, and the opinion re-afflrmed by him still
more strongly in the second case.

Courts of the highest authority In this coun-
try have followed Lord MansAeld, and have
not hesitated to meet the fears expressed by
Park, B. (that the effect would be to make
bonds negotiable), by admitting the conse-
quence. Chief Justice Marshall, in the case of
The United States v. Nelson db Myers, 2 Brock.,
64, hesitated to reach this conclusion, but ex-
pressed a strong belief that, at some future'
^ay it would be, by this court.

We ihink, for the reasons above given, the
ruling of the court below cannot be upheld, and
that the judgment should be reversed, urith a ve-
nire de novo.

ated-1 Wall.. 95. 206, 575; 7 Wall., 105; 8 Wall..
496; U Wall., 150; U WaU., 808; 6 Ben., 177; Deady,
496; 10Blatclif.,a8.

JOHN M. WALKER, Appt.,

JONATHAN B. H, SMITH.

(See 8. C, 21 How., 5T9-56S.)

Virginia tand'toarrants— proprietor of, who is
— superior equity of a claimant.

The Act of Oooirreas of 8d March, 1886, made a
further and apparently final appropriation of
lands, to be applied to the satisfaotion of Virginia
military land- warrants.

This appropriation was sufficient to pay ninety
per cent, of the warrants received.

Thus the matter stood for fourteen years, when at
lenffth, on the Slst of Ausrust, 1862, Congress passed
an Act, which authorized an issue of land scrip in
favor of the present proprietors of any outstand-
ing military land-warrants, &o. This Act has been
construed to include not only unsatisfied warrants,
but the ten per cent, not given on the satisfied and
surrendered warrants.

The question as to who may be considered as the
*' present proprietor** of these surrendered and
satisfied warrants must be decided by the Secre-
tary of the Interior in the first instance, by the
rules, customs, and practice of the Land Office.

Where the defendant, assignee or grantee of the
unsatisfied ten per cent, of a quantity of said war-
rants, had paid a large and valuable consideration

22a

57d-682

SUPRSMB COUBT OV T^B UnITBD BtATBB.

D£C. Tbbm,

without any notice of plalntlfTs claimt bad made his
proofs and nad the decisions of the Land OfBoe In
his f avon held that he had obtained an advantage of
which H court of equity would not deprive nlm,
under the circumstances.

Argued Mar. i, 1869, Decided Mar. lU 1869.

APPEAL from the Circuit Court of the Unit-
ed States ]:or the District of Columbia.

The bill in this case was filed in the court
below, by ifae appellant, praying an injunction
to prevent the issuing from the General Land
Office, to the appellee, of certain scrip; and
for the cancellation of a certain assignment,
under which the appellee had, by that office,
been adjudged entitled to the scrip in question.

ThQ court below having entered a decree
dismissing the bill, with costs, the complainant
took an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Meesrs. Chilton A Da^idf^* for appel-
lant:

The appellant was, at the passage of the Act
of August 31, 1852, the "present proprietor"
of the warrants, and as such, by the very terms
of the law, entitled to receive the unpaid 10
per cent. He held bv a legal title warrant, as-
signable under the laws both of Virginia and
the United States. The language of the Act
Act manifestly relates to legal ownership.

Assuming, however, that as regards a legis-
lative grant of this description there can be no
inquiry beyond the plain terms of the grant,
and that in any case the defense of bona fide pur-
chaser for valuable consideration without no-
tice, could be set up, that defense cannot,
avail the appellee.

I. Because the appellant holds the legal title
and asks relief upon it, and in such case equity
follows the law

Williams v. Lambe, 8 Bro. Ch., 264; GoUins
V. Archer, 1 Rus. & M., 284, 292; Rogers y.
Seals, Freem., 84; Shirras v. Caig, 7 Cranch,
84; Snelgrove v. Snelgrove, 4 Desaus , 288; FUz-
Simmons v. Ogden, 7 Cranch, 2.

II. Because the appellant cliams under a
prior assignment, and, the appellee not having
legal title, gut prior in tempore, potior est in jure.

1 Story Eq. Jur., sec. 64, C. and D.

8. Because the appellee has no title whatever.

Balleti V. Collins, 10 How., 174.

III. The decision below was on the ^ound
that the appellant lost his superior equity, by
his failure to file his assignment in the General
Land Office, where search was made by the
ancestor of the appellee, and the case of Jud-
son V. Ooreoran, 17 How., 612, was considered
in point.

The Circuit Court erred.

1. There is here no conflict of equitable
titles. The appellant holds by as complete a
legal title as he could hold stock or negotiable
paper.

Baldwin v. Ely, 9 How.. 580.

2. Because the subject matter of this contro-
versy is not a chose in action, but an interest
or estate in land The English doctrine that
notice to the debtor or trustee holding the
fund, is necessary to complete the transfer of a
chose in action (How v. Daicson, Ryally. Bowles,
2 White & Tudor's Lead. Cas. Eq., 781-784.
and notes; Dearie v. Hall, and Lowridge v.

224

Cooper, 8 Russ., 1) has never been applied to
equitable interests or estates in land.

Jones V. Jones, 8 Sim. 688; WUmot ▼. Pike,
6 Hare. 14; Peacock v. Burt, Coot Mort., 669,
mitshireir. Babbits, 14 Sim., 76.

The American doctrine certainly is, that oo
such notice is necessary, although proper, to
secure the fund bv preventing payment to a
second assignee in ignorance ofthe prior assign-
ment.

Muir V. Schenck, 8 Hill, 228;' U. 8. v.
Varughan, 8 Binn., 894; Stevens v. Stevens, 1
Ashm., 190; Bholen v. Cleveland, 5 Mas.. 174;
Warren yr. CopeUn, 4 Mel., 594; Dix v. Cobb. 4
Mass., 512; Woody. Partridge, 11 Mass., 488;
LAtUefiM V. Smith, 17 Me., 827; Story, Confl.
L., sec. 896.

8. Even assuming that the principles relating
to the assignment of choses in action apply
here the general rule still is, ^t prior in tem-
pore, potior est injure, unless the first assignee
has been guilty of laches, whereby he has en-
abled the assignor to practice a fraud on the as-
signee.

Judsony. Corcoran, 17 How.. 612.

To brinjT the case within the exception to the
general rule, there must be fraud or gross neg-
ligence on the part of the first assignee and dili-
gence on the part of the second assignee.

The neglect relied on here, is the f^lure to
file in the General Land Office. The diligence
is inquiry there.

Counsel reviewed the circumstances of the
case, and contended that appellant was not to be
held to have lost his priority, by a failure to
file his assignment until a few monUis after the
second assignment.

IV. The appellee did not obtain the legal
title by the letter of the Commissioner of the
Gkneral Land Office, of August 8, 1854.

1. Because the Secretary of the Interior,
much less a subordinate unknown to the law,
had not jurisdiction inter paries.

Comegys v. Vasse, 1 Pet.. 193.

2. Because the Secretary of the Interior did
not act in the premises.

8. Because the letter of the Commissioner
clearly shows that even his action was not flnaj.

V. As to the consideration of the assi^ment
to appellant, the answer bv appellee denies any
real consecration on information only, not
even belief. A replication was filed, but no
evidence offered Dy the appellee:

Messrs. Geor^ E. Badg^er and J. M*
Carlisle* for appellee:

1. As the alleged assignment to the appel-
lant, the answer impeaches it in form and sub-
stance, and particularly denies that it was
founded on any consideration whatever. The
answer is responsive to the bill, and is evidence
against the appellant.

2. The warrants were satisfied, surrendered
and canceled by the voluntary act of the hold-
ers.

8. The case is within the principles of Jud-
son V. Corcoran, 17 How., 612. The points de-
cided there are in support of the appellee in
thiH cause, and support the correctness of the
decree below.

Ist. The assignment to the appellee "was
fair and accept^ on his part, without knowl-
edge" of the prior assignment, if any, to the ap-
pellant.

62 U.S.

1868*

Walkibk y. Smith.

679-682

2d. The appellee had, in effect, drawn to his
equity a legal title.

3d. The prior aaeigninent, if any, to the appel-
lant, " operated as a latent and lurking transac-
tion, calculated to circumvent subsequent as
signees, and such would be its effect upon the
appellee, was priority accredited to it."

4. If the decision of the Land Office did not

f;ive to the appellee a "legal advantage." the
acts referred to constitute an '* equitable ad-
vantage," giving him **a superior claim to the
legal title; aQcl even if the appellant have an
■equity prior in time, the doctrine of Corcoran
V. Judion is, that under such circumstances he
shall not be aided to prevail

6. There is no evidence whatever that there
'was any real consideration paid for the assign-
ment on whidi the bill is founded.

Mr. Justice CMer delivered the opinion of
the court:

The purpose of this bill is to obtain an in-
junction to prevent the issuing of certain scrip
to appellee by the Land Office, and to have can
<celed the assignment under which the appellee
had, bv the officers of Government, been ad-
Judged entitled to the scrip.

This bill was properly dismissed by the court
below, as a brief statement of the case will
show. The Act of Congress of 8d March,
1886, made a further and apparently final ap-
propriation of six hundred and fifty thousand
seres, to be applied to the satisfaction of Vir-
ginia military land-warrants. It provided that
" no scrip should be issued thereon until the
1st of September following, and that warrants
should be received in the General Land Office
till that day; and immediately thereafter, if
the amount filed exceeded six hundred and
fifty thousand acrek, the Commissioner of the
Land Office should apportion the said six hun-
<lred and fifty thousand among the warrants
-which shall then be on file, in full satisfaction
thereofT*

This appropriation was sufficient to pay
ninety per cent, of the warrants received.

William 8. Scott, as attorney for the heirs
of Qeneral Charles Lee, filed a warrant in their
names for fifteen thousand acres; which was
surrendered and satisfied by the issue of land-
scrip for thirteen thousand five hundred acres,
being ten per cent., or one thousand five hun-
dred acres less than the whole amount called
for on the face of the warrants.

The warrants were, therefore, fully satisfied ;
juid being surrendered, were no longer evi-
dence of anv right of property. But it seems
that, notwithstanding this surrender and satis-
faction, there was a sort of lingering hope
or expectation that sometime hereafter. Con-
gress, by continued importunity, might be pre-
vailed upon to make some further grant of
land to satisfy the shadow of equity which was
supposed to remain, after the warrantees had
surrendered their warrants and accepted the
satisfaction tendered.

On the 80th March, 1887, Scott signed an in-
strument in form of a power of attomev,
which, after reciting that he had sold to Walk-
er, the complainant, the warrants, and deliv-
ered him the scrip issued in lieu thereof, stated
S8 follows: ** Now, the object of this power
of attorney is to secure the said Walker the

Jtee 21 How. U. S., Book 16.

said ten per cent, of warrants unsatisfied, or
any and every equivalent that may be at any
time given in lieu thereof," &c.

On the 18lh of January, 18:^8, Scott conveys
by indenture, in consideration of $750, and
with warrantjr, the Lee warrants, on which he
alleges there is '* still due one thousand five
hundred acres" to defendant. At this time
the records of the Land Office contained no
evidence of the prior assignment (if such it can
be called) to Walker; and a clerk in the office
indorsed on the respondent's deed as follows:
** William S. Scott, the party grantor of the
within, has full authority on file to sell the
warrants and appoint a substitute; and in the
event Congress makes up the ten per cent., the
scrip to be issued will be delivered to Mr.
Smith."

Thus the matter stood for fourteen years,
when, at length, on the 8l8t of August, 1852.
Congress passed an Act, which authorized an
issue of land-scrip in favor of the present pro
prietors of anv outstanding military land- war-
rants, &c. This scrip is to be issued by the
Secretary of the Interior, who is to make the
necessary inquiries, and " be satisfied by a re-
vision of the proof, or by additional testi-
mony," &c.

It seems that this Act has been construed to
include not only unsatisfied warrants, but the
ten per cent, not given on the satisfied and sur
rendered warrants. It is a liberal construc-
tion of the statute, and so far as it extends to
the scrip in question, it is a simple gratuity.
The secretary is made the agent for its distri-
bution. It is his duty to ascertain the parties
entitled to it. if any person can be said to have
a title to a gift before it is received. When he
issues the scrip it then becomes a '* chose in ac-
tion," capable of being dealt- with as property
by courts of Justice, but not till then. The
question, as to who may be considered as the
•• present proprietor " of these surrendered and
satisfied warrants, must be decided by him in
the first instance by the rules, customs and
practice of the Land Office. Before the Act
of Congress, this right was too subtile (being
no more than the remote expectation of a gift)
to be dealt with by courts, and the Act of Con
gress has not conferred on them the distribu-
tion of their bounty. Besides, if an injunc-
tion was issued to hinder the defendant from
receiving the scrip which the Land Office has
concluded to give him, this would confer no
title on the complainant.

Whether, after the Land Office have issued
the scrip to a claimant, another person alleging
fraud or misrepresentation, and claiming him-
self to be the "proprietor" intended by the
Act, might not obtain the interference of the
courts to obtain a transfer of the scrip to him-
self, is a question not presented in this case.

But assuming that the court would under-
take to decide as to the respective rights of
these claimants, treating their claims as tangi-
ble equities, the complainant has not made out
such a case as would entitle him to relief. His
power of attorney (or whatever it may be
called) mentions no consideration paid. The
answer of defendant, which is responsive to
the bill (which avers a purchase at market
price), denies the payment of any considera-
tion whatever, and none has been proved.

15 225

582-605

Sttpremx Court or thx Unitbo Btatbs.

Dbc. Tkbm,

The defendant has paid a large and valuable
consideration without any notice of the plaint-
iff's claim, has made his proofs, has had the
decision of the Land Office in his favor. He
has obtained an advantage of which a court of
equity will not deprive him, under the circum-
stances.

Ths judgment of the court below is affirmed,
with costs.

HIRAM BARBER, Appt,,

HULDAH A. BARBER, by her Next Friend,
Oborge Cronkhitb.

(See 8. C, 21 How., 682-605.)

Courts of U. 8. have no jurisdiction of divorce or
aUmony — decree of state court for same, bind-
ing— decree of one State has fuU force in an-
oth^— jurisdiction of U. 8. courts over — sep-
arate domial of wife — may sue husband for
alimony — hwAand's change-of domicU — where
suable.

This oourt disclaims altogretber any Jurisdiction in
the courts of the United States upon the subject
of divorce* or for the allowance of alimony.

The parties to a caufH3 for a divorce and for ali-
mony are bound by a decree for both, which has
been given by a state court having jurisdiction of
the subject-matter and over the parties.

Such a judgment or decree, rendered in any State
of the United States, the oourt having jurisdiction,
win be carried into judgment in any other State,
to have there the same binding force that it has in
the State in which it was originally given.

For such a purpose, both the equity courts of the
United States and the equity courts of the States,
have jurisdiction.

Where the wife is plaintifF in a divorce suit, she
is entitled to a separate domicll.

So when parties are already living under a judi-
cial separation, the domicil of the wife do^ not
follow that of the husband.

A wife, under a judicial sentence of separation
from bed and board, is entitled to make a domicil
for herself, different from that of her husband.

And she may, by her next frtend,8ue her husband
for alimony, which he had been decreed to pay as
an incident to such divorce, or when it has been
given after such a decree by a supplemental bill.

Her right to pursue her remeay in the equity
side of the District Court of the United States in
tbe>8tate of Wisconsin is undoubted.

Where the husband, after the decree of separa-
tion was given, left his domicil in New York for
another In the State of Wisconsin, in which he says
that he has acquired a domicil ; held, that his vol-
untary change of domicil from New York to Wis-
consin makes him suable there.

Argued Jan. 19, 1869. Decided Ma/r. Ih 1869.

APPEAL from the District Court of the Unit-
ed States for the District of Wisconsin.

The bill in this case was filed in the court
below, by the appellee, on a foreign judgment
for alimony. The court below having entered
a decree in favor of the complainant, for $5,-
986.80, with costs, the defendant took an ap-
peal to this court.

A further statement of the 6a8e appears in
the opinion of the court.

Messrs. C. BUling^hurst and J. R. Doo-
little» for appellant:

1. Husband and wife, although allowed to
live separately under a decree of separation a
mensa et thoro, made by a state court having
competent jurisdiction, are still so far one per-
son while the marriage relation continues to ex-

22«

ist, that they cannot become at the same time
citizens of different States, within the meaning
of the Federal Constitution ; and therefore, the
court below, upon the plaintiff's own ground*
had no jurisdiction.

Warrender v. Warrender, 9 Bligh., 103;
Dougherty Y. Snyder, 15 8. & R.. 90; Phillim.
Dom., p. 27; Story, Confl. L., sec. 46; Bar-
neon v. Harrison, 20 Ala.. 629; 6 Pa. Stato^
452; 6 Watts & 8., 87.

2. The case presented by this bill is not such
a one as a court of equity, in the State of Wis-
consin, can take cognizance of, either by vir*
tue of any statute conferring equity jurisdic-
tion, or as coming within its original equity
jurisdiction. It is not for a divorce; it is not
for alimony; it is not in the nature of a credit-
or's bill ; and if it were, it does not show that
execution issued upon the decree in New York»
or that any other means were resorted to to en-
force it there. Nor is it for any other cause*
of which equity will take original Jurisdiction.

1 Story, Eq.,ch. 8; Bish., Mar. &Div., sec.
558, 554: 2 Stoiy, Eq., 1425, note 2; Stones v.
Cooke, 7 Sim., 22; 8 Sim., 821; PlenningUm v.
Gibson, 16 How.. 79.

8. The whole subject of divorce and alimony
was exclusively of ecclesiastical jurisdiction,
at the time of the adoption of the Constitution
of the United States; therefore, the whole sub-
ject of divorce and alimony is. by the Consti-
tution of the United States, placed beyond the
jurisdiction of the courts of the United States.

4. The decree of the Circuit Court in Wis-
consin, upon the bill filed by the plaintiff in
error dissolving the marriage, is valid and ef-
fectual in that Stale.

Manley v. Manley, 4 Chand.. 96; Eubbell v.
ffubbeU, 8 Wis., 662; Gleason v. Oleason, 4
Wis., 64.

This is true, both in the courts of the State
and of the United States for that district

10 How.. 98; Harding v. Alden, 9 Me., 140.

It follows that if the marriage relation has
been dissolved, the plaintiff should have sued
in her own name and not by her next friend ;
and also, that whatever claim the plaintiff may
have had, at law or in equity, against the ap-
pellant for alimony, it ceased from and after
the decree dissolving the marriage relation.
The plaintiff should only be entitl^ to recover
up to the date of the decree.

20 Ala.. 649.

Mr. James S. Brown, for appellee.

Mr. Justice Wayne delivered the opinion
of the court:

We regard this as a suit for a wife brought
on the equity side of the District Court of the
United States for the District of Wisconsin, by
her next friend. Oeorse Cronkhite, a citizen of
the State of New York, against Hiram Barber,
a citizen of the State of Wisconsin, to give the
same validity to a judgment in that State which
it has in the State of New York against the de-
fendant for the payment of alimony to his
wife, who has been divorced from hima mensa
et thoro, with an allowance of alimony by a
court, which had, when the decree was made,
jurisdiction over the parties and the subject
matter.

We shall not have occasion to comment upon
the relations of husband and wife in her unin-

62 U.S.

1868.

Barbbr ▼. Barbbk.

582-605

terrupted coverture, nor will we discuss the
general rights, obligatious or disabilities of
either, when they have been separated by a di-
vorce a mensa et thoro.

Our first remark is — and we wish it to be
remembered — that this is not a suit asking the
court for the allowance of alimony. That has
been done by a court of competent jurisdiction.
The court of Wisconsin was asked to interfere
to prevent that decree from being defeated by
fraud.

We disclaim altogether any jurisdiction in
the courts of the United States upon the sub-
ject of divorce, or for the allowance of alimony,
either as an original proceeding in chancery or
as an incident to divorce a vinculo^ or to one
from bed and board.

Therecordraises these inquiries: Whether
a wife divorced a mensa et th/tro can acquire
another domicilation in a State of this Union
different from that of her husband, to entitle
her, by her next friend, to sue him in a court
of the United States having equity jurisdiction,
to recover from him alimony due, and which
he refuses to make any arrangement to pay;
and whether a court of equity is not a proper
tribunal for a remedy in such a case.

We will first direct our attention to the cir-
cumstances of the case, and will give them
from the bill and answer, and from the test!-
monv in the record.

Hiram Barber and Huldah Adeline Barber
were married in the State of New York in the
year 1840, where his domicil then was, and
continued to be until he left it for Wisconsin,
which was soon after a decree had been given
for a divorce a menm et ihoro between them,
with an allowance of alimony to be paid by
him. Her application for such a divorce was
made by Cronkhite, her next friend, in the
Court of Chancery for the Fourth District of
the State of New York, that court having juris-
diction of the subject matter and over the
parties.

The defendant appeared and resisted the
application. The cause was heard on the
pleadings and proofs. It resulted in a decla-
ration by the UhaneeUor that the defendant had
been guilty of cruel and inhuman treatment of
his wife, and of such conduct towards her as
to render it unsafe and improper for her to co-
habit with him; and that he had abandoned,
neglected, and refused to provide for her. And
it therefore decreed that the complainant and
defendant be separated from bed and board
forever; provided, however, that they might at
any time thereafter, by their joint petition, ap-
ply to the court to have the decree modified or
discharged ; and that neither of the said parties
ithall be at liberty to marry any other person
during the lifetime of the other party. The
court then referred the cause to a master, to
ascertain and report what should be allowed
and to be paid by the defendant, or out of his
estate, to Mrs. Barber, for her suitable support
and maintenance. In pursuance of this de-
cretal order and reference, the master made a
report. The defendant filed exceptions to it.
The cause was regularly brought to a hearing
upon the defendant's exceptions. They were
overruled, and a final decree was made in the
cause. The language of the decree is, that the
exceptions are overruled, and that the report

See 21 How.

of the master is absolutely confirmed. That
for the suitable support and maintenance of
Mrs. Barber, there should be allowed and paid
to her by the defendant, or out of his estate, in
quarterly installments, the annual sum of $860
in each and every year; and that as it appeared
he had not given to her any support in the in-
terval between the filing of the bill in her be-
half and the rendition of the decree, that the
defendant should p&y to her $360 a year in
quarterly payments from the 1st day of July,
1844, that being the dav when the bill was
filed; and it was decreed that the sum of $060,
being the alimony retrospectivelv due, should f
be paid forthwith by the defendant, and th^ I
the complainant should have execution there- I
^for. it was runner ordered, that the perma-
^SSfit allmonv allowed and to become due after
the 1st of tfarch, 1847, to which day alimony
is above computed, should be paid by the de^
fendant in quarterly payments on the 1st days
of March, June, September and December, in
each year, during the life of Mrs. Barber; and
in case of its not being so paid, that the quar-
terly payments should bear interest as they
respectively became due, and that execution
might issue therefor tatiea quoties. The court
then decreed that the permanent alimony al-
lowed to Mrs. Barber was vested in her for her
own and separate use, and as her own and
separate estate, with full power to invest the
same in a trustee or trustees, as she might think
proper to appoint, with the power to dispose
of the same by will or otherwise, from time to
time during her life, or at her death, or either,
as she may think proper, free from any con-
trol, claim or interposition of the defendant.
The said decree, with a tax bill of costs in the
suit, was signed and enrolled according to the
form of the Statute in such cases made and
provided in the State of New York.

It is upon a transcript of all the papers in
that suit, authenticated as the law requires it
to be done, that the suit now before us was
brought in the District Court of the United
States for the District of Wisconsin.

The complainants aver in their bill that they
are citizens of the State of New York, and that
the defendant is a citizen of the State of Wis-
consin. They then set out the proceedings of
the court of New York, divorcing Mr. and
Mrs. Barber from bed and board, with especial
reference to the decree and the entire record of
that suit, charging the defendant with not hav-
ing paid any part of the alimony adjudged to
Mrs. Barber; and that there was then due to
her on that account the sum of $4,242.16, with
interest at seven per cent., that being the legal
rate in the State of New York. The rest of
the bill it is not necessary to state more partic-
ularly, than that it is a recital of a suit which
had been brought upon the common law side
of the District Court of the United States for
the County of lyillwaukee, in the- Territory of
Wisconsin, for the amount of alimony due
by the defendant; to the declaration in which
he filed a demurrer, upon which a judgment
was rendered in his favor, which was after-
wards affirmed in the Supreme Court of the
State, for the reason that the remedy for the
recovery of alimony was in a court of chan-
cery, and not at law. To this bill also the de-
fendant demurred, on account of the case not

227

^2-605

tiUPRBMB COUBT OF THB UkITBD BtaTBS.

Dsc. Tbrm,

being within the ordinary jurisdiction of a
court of chancery, that the relief sought could
only be had in the Court of Chancery in the
State of New YorK, and that it did not appear
that the complainants had exhausted the rem-
edy which they had in New York. This de-
murrer was OTerruled, and the defendant was
ordered to answer. He did so. He admits in
his answer the legality and locality of his mar-
riage with Mrs. Barber; the jurisdiction of the
court in the divorce case; that a divorce had
been decreed between them fntm bed and
board, after contestation; and that by that de-
cree he was subject to the payment of alimony
to the extent and in the wav it is claimed in
the bill he was then answering. He admits
that he left the State of New York without
having paid any part of it, or having made any
arrangement to do so; alleging, however, that
he had left real estate in New York, upon
which no proceedings had been taken to make
it liable to the decree against him for alimony.
And he then goes on to state, that on the 19lh
day of April, 1852, he had filed his bill in the
Circuit Court of the County of Dodge, in the
State of Wisconsin, against Mrs. Barber, she
then being his wife, to obtain a dissolution of
the marria^ contract between them, and that
tiieir mamage had been dissolved by a decree
of that court, which is on record in the same.
And he adds, that his wife by that decree be-
came a feme dole ; and being so, she could not
sue by her next friend, and that her remedy
was in a court of law. To this answer a gen-
eral replication was filed. The cause was car-
ried to a hearing upon the pleading and
proofs, and a decree was made, adjudging that
$5,086.80 is due from the defendant upon the
alimony sued for, for principal and interest,
to and prior to the time of filing the bill in this
cause, and that the defendant should pay it, for
for the sole and separate support and mainte-
nance of Mrs. Barber, together with the costs,
to be taxed within ten days; and in default
thereof, that execution should issue for the
same.

It appears, from the testimony in the cause,
that the defendant left the State of New York
in a short time after the decree for the divorce
and for alimony had been rendered, for the
purpose of placing himself beyond the juris-
diction of the court which could enforce it,
without having paid any part of the alimony
due, or leaving any estate of any kind out of
which it could be paid; for he gave no proof
of any kind that he had real estate in the State
of New York in support of that allegation in
his answer.

It also appears, from the record, that the de-
fendant had noade his application to the court
in Wisconsin for a divorce a vinculo from Mrs.
Barber, without having disclosed to that court
any of the circumstances of the divorce case in
New York; and that, contrary to the truth, veri-
fied by that record, he asks for the divorce on
account of his wife having willfully abandoned
him. It is not necessary for us to pass any
opinion upon the legality of the decree, or
upon its operation there or elsewhere to dissolve
the vinctUum of the marriage between the de-
fendant and Mrs. Barber. It certainly has no
effect to release the defendant there and every-
where else from his Uability to the decree made

238

against him in the State of New York, upon
that decree being carried into judgment in a
court of another State of this Union, or in a
court of the United States, where the defendant
may be found, or where he may have acquired
a new domicil different from that which he had
in New York when the decree was made there
asainst him.

The questions made by the bill and the answer,
and by the arguments of c^unoel, we will state
in the form of an inquiry. They are as fol-
lows: whether a wife divorced a menea et
thoro may not have a domiciliation in a State
of this Union different from that of her hus-
band in another State, to enable her to sue him
there by her next friend, in equity, in a court
of the United States, to carrv into judgment a
decree which has been made against nim for
alimony by a court having jurisdiction of the
parties ana the subject-matter of divorce.

In the consideration of these questions, we
must not not allow ourselves to be misled by
the general rule which prevails in England,
that a suit cannot be maintained at law by a
feme covert, and that, nothwistanding a di-
vorce a menea et thoro, a wife cannot sue or be
sued in a court of law ; for in England she may
in several cases maintain a suit in her own
name as a feme ecle, both at law and in equity.
They are exceptions to the general rule, or
privileged cases, under certain circumstances,
where it cannot be presumed, from his own
acts, that the husband's control of his wife is
continued, and where she has been deprived of
his protection to represent with her her rights
and interests in a suit at law, or in one in
equity. The cases mentioned in the books
where a feme covert may sue as a feme eoU
are: when her husband is banished, or has
abjured the realm, or has been transported for
felony; where the husband is an alien enemy,
and his wife is domiciled in the realm; where
the husband is an alien domiciled abroad, and
has never been in the realm; or where he has
voluntarily abandoned her, and is under a dis-
ability to return; so where the husband has
deserted the wife in a foreign country, and she
goes to England and maintains herself as a
feme sole; where the husband in a foreign
State, compels his wife to leave him for an-
other political jurisdiction, and *she maintains
herself there as a feme aole.

Cases have been decided in Massachusetts in
conformity with the English cases. There are
cases in England which have gone much fur-
ther, but we do not cite them, preferring only
to mention such instances as have not been
questioned by subsequent cases in England or
in the United States. See Sto. Eq. PL, 6th ed.,
sec. 61, pp. 59, 60, and the cases cited in the
notes.

Except in such cases, a feme covert cannot
sue at law, unless it be jointly with her hus-
band, for she is deemed to be under the protec-
tion of her husband, and a suit respecting her
rights must be with the assent and co-operation
ofher husband. Mitf. £q. PI., by Jeremy,
28; Ed. Par. in Eq., 144, 153; Calvert on Par-
ties, ch. 3, sec. 21. pp. 265, 274.

In the case of Bein v. ffeaih, 6 How., 228.
this court said, without any reference to the
law of Louisiana: '* That the general rule was,
when the wife complains of her husband, and

62 U. S,

186'$.

Bambeb y. Babbhr.

582-4105

asks relief against him, she must use the name
of some other person in prosecuting the suit; but
where the acts of the husband are not com-
plained of, he would seem to be the most suit-
able person to unite with her in the suit. This
ia a matter of practice within the discretion of
the court It is sanctioned in Story's Equity
Pleading, and by Fonblanque. The modern
practice in England has adopted a different
course, by uniting the name of the wife with a
person other than her husband, in certain
cases."

There are also exceptions in equity, which
are wholly unlcnown at law. Thus, if a mar-
ried woman claims some right in opposition to
the rights claimed by the husband, and it be-
comes proper to vindicate her rights against
her husband, she cannot maintain a suit against
him at law; but in equity she may do so, and
against all others who may be proper or neces-
sary parties. But it must be done under the
protection of some other person who acts as
her next friend, and the bill is accordingly ex-
hibited in her name by such next friend. Sto.
£q. PI., 6thed., sec. 61, p. 61. It isalsosaid, in
the same work, to be our constant experience,
that the husband may sue the wife, or the wife
the husband, in equity, notwithstanding; neither
of them can sue the other at law. Cannd v.
Buekls. 2 P. Wms.. 243. 2U; Ex parU8irang»-
way$, 8 Ark., 478; Fonblanque Eq., B. 1., ch. 2,
see 6, tkote K; Brookg v. Brooks, Finch, Pre.
Ch., 24; Mitf. PL, by Jeremy, 28. These cita-
tions have been niade to show the large juris-
diction which a court of equity has to secure
the rights of married women, when it may be
necessary to exert it with the assistance of the
husband, or when he improperly interferes with
them, so as to make it necessary for the wife to
defend herself against his unwarranted claims
to her property. The result of that jurisdiction
now is, that the wi^ may, in all such instances,
aue her husband by ner next friend.

There is, too, another ground of jurisdiction
in equity, just as certainly established as that Is
of which we have just spoken. It comprehends
the case before us. It is, that courts of equity
will interfere to compel the payment of alimony
which has been decreed to a wife by the ecclesi-
astical court in England.

Such a jurisdiction is ancient there, and the
principal reason for its exercise is equally ap-
plicable to the courts of equity in the United
States. It is, that when a court of competent
jurisdiction over the subject-matter and the
parties, decrees a divorce, and alimony to the
wife as its incident, and is unable of itself to
enforce the decree summarily upon the hus-
band, that courts of equity will interfere to
prevent the decree from being defeated by
iraud. The interference, however, is limited
to cases in which alimony has been decreed:
then only to the extent of what is due, and al-
ways to cases in which no appeal is pending
from the decree for the divorce or for alimony.
Sfiaftoe V. Shaftoe, 7 Ves., 171; Daiomn v.
Dawmm, 7 Ves., 173: Haffey v. Haffey, 14 Ves. ,
281; AngierY, Angier, Finch., Pre. Ch., 497;
Ckioper 8 Eg. PL, ch 3. pp. 149, 150; Ooglar v.
Coalar, 1 Ves.. Jr., 94; Sireet v. Street, 1 Turn.
&RUS8., 322.

The parties to a cause for a divorce and for
alimony are as much bound by a decree for

See 21 How.

both, which hns been given by one of our state
courts having jurisdiction of the subject-matter
and over the parties, as the same parties would
be if the decree bad been given in the Ecclesi-
astical Court of England. The decree in both
is a judgment of record, and will be received as
such by other courts. And such a judgment or
decree, rendered in any State of the United
States, the court havinc^ jurisdiction, will be
carried into judgment in any other State, to
have there the same bindinji; force that it has in
the State in which it was onginally given. For
such a purpose, both the Equity Courts of the
United States and the same courts of the States
have jurisdiction.

We observe, in confirmation of what has just
been said, that the jurisdiction of the courts of
the United States is derived from the Constitu-
tion, and from legislation in conformity to it.
The first limitation by the latter upon the Juris-
diction of the Equity Courts of the United
States is, that no suit can be sustained in them,
where a plain, ade(]uate, and complete remedy
may be had at law. The court has said : "It is
not enough that there is a remedy at law ; it
must be plain and adequate, or in other words,
as practical and efficacious to the ends of jus-
tice, and its prompt administration, as the rem-
edy in equity. Boyee'e Eiz*r v. Grundy, 8 Pet.,
210; United States v. Rowland, 4 Wheat.. 108;
Osbom V. United States Bank, 9 Wheat., 841,
842. It is no objection to equity jurisdiction
in the courts of the United States, that there is
a remedy under the local law, for the equity
jurisdiction of the federal courts is the same in
all of the States, and is not affected by the ex-
istence or non-existence of an equity jurisdic-
tion in the state tribunals. It is the same in
nature and extent as the jurisdiction of En-
gland, whence it is derived." Livingston v. Story,
9 Pet., 632. Such a suit for the enforcement
of a decree for alimony, as tliat before us, is not,
an exception, unless tne court has not jurisdic-
tion over the parties, and the amount be not
such as is required to bring it into this court
by appeaL

We proceed to show that it has jurisdiction.
The Constitution requires, to give the courts of
the United States jurindiction, that the litigants
to a suit should "be citizens of different Stales."
The objection in this case is, that the complain-
ant does not stand in that relation to her hus-
band, the defendant; in other words, it is a de-
nial of a wife*s right, who has been divorced a
mewvi et thoro, to acquire for herself a domi-
ciliation in a State of this Union different from
that of her husband in another State, to entitle
her to sue him there by her next friend, in a
court of the United States having equity juris-
diction, to recover from him alimony which he
has been adjudged to pay to her by a court
which had jurindiction over the parties and
the subject matter of divorce, where the de-
cree was rendered.

We have already shown, by many authori-
ties, that courts of equity have a jurisdiction
to interfere to enforce a decree for alimony^
and by cases decided by this court; that the ju-
risdiction of the Courts of Equity of theUnited
States is the same as that of England, whence
it is derived. On that score alone, the juris-
diction of the court in the case before us can-
not be successfully denied.

22»

«8!»-e05

BXTFKEMB COUKT OF THB UkITBD StATBS.

Dec. Tkrm,

But it was urged by the learned counsel who
arf^ued this cause for the defendant, that hus-
band and wife, although allowed to live sepa-
rately under a decree of separation a msnsa et
ihoTo, made by a state court having competent
Jurisdiction, are still so far one person, while
the married relation continues to exist, that
th^ cannot become at the same time citizens of
different States, within the meaning; of the Fed-
eral Constitution, and therefore the court be-
low had no Jurisdiction. It was also said, for
the purpose of bringing suits for divorces, they
may acquire separate residences in fact; but
this is an exception founded in necessity only,
and that the legal domicil of the wife, until the
marriage be dimlved, is the domicil of the hus-
band, and is changed with a change of his dom-
icil.

Such, however, are not the views which have
been taken in Europe ^nerally, bv its jurists,
of the domicil of a wife divorced a merua et
ihoTO. They are contrary, too, to the generally
received doctrine in England and the United
States upon the point.

In England it has been decided, that where
the husband and wife are living apart, under a
judicial sentence of separation, that the domi-
cil of the husband is not the domicil of the wife.
Eng. L. «& Eq;., 0th vol., 598: 2 Rob. Eccl, 505.
When Mr. Phillimore wrote his treatise upon the
Law of Domicil, he said he was not aware of any
decided case upon the question of the domicil of
a wife divorced a merua et thoro.buX there can be
little doubt, that in England, as in France, it
would not be that of her husband, but the one
chosen for herself after the divorce. In support
of his opinion, he cites (othier's Introd. aux
Coutume, p. 4; Mercadie, in his Commentary
upon the French Code, Vol. I., p. 287; the
French Code, tit. Ill, art. 108; the Code Civile
of Sardinia; and Cocher's Argument in The
DucheM of Hblsien'8 case, Ouvres, 1, 2. p. 228.

Mr. Bishop, in his Commentaries on the Law
of Marriage and Divorce, has a passage so ap-
propriate to the point we are discussing, that
we will extract it entire. It is of the more
value, too, because it comprehends the opin-
ions entertained by eminent American jurists
and judges in respect to the domicil of a wife
divorced a menM et thoro. He says, in dis-
cussing the jurisdiction of courts where par-
ties sought a divorce abroad for causes which
would have been insufficient at home, that **it
was necessary to settle a preliminary question,
namely : whether for the purpose of a divorce
suit the husband and wife can have separate
domicils; that the general doctrine is familiar,
that the domicil of the wife is that of the hus-
band. But it will probably be found, on ex-
amination, that the doctrine rests upon the legal
duty of the wife to follow and dwell with the
husband wherever he goes.

"If he commits an offense which entitles her
to have the marriage dissolved, she is not only
discharged thereby immediately, and without a
judicial determination of the question, from her
duty to follow and dwell with him. but she
must abandon him. or the cohabitation will
amount to a condonation, and bar her claim to
the remedy. In other words, she must estab-
lish a domicil of her own. separate from her
husband, though it may be, or not, in the same
Judicial locality as his. Courts, iiowever, may

290

decline to recognize such domicil In a collateral
proceeding — that is, a proceeding other than a
suit for divorce. But where the wife is plaint-
iff in a divorce suit, it is the burden of her ap-
plication, that she is entitled, through the mis-
conduct of her husband, to a separate domicil.
So when parties are already living under a ju-
dicial separation, the domicil of the wife does
not follow that of the husband." Section 728.

Chief Justice Shaw says, in Bdrteau v. Ear-
teau, 14 Pick, 181, 185, the law will recoenize
a wife as having a separate existence andsep-
arate interests and separate rights, in those
cases where the express object of 5\ proceedin;^
is to show that the relation itself ought to be
dissolved, or so modified as to establish separate
interests, and especially a separate domicil and
home. Otherwise, the parties, in this respect,
would stand upon a very unequal footing, it
being in the power of the husband to change
his domicil at will, but not in that of the wife.

The cases whicii were cited against the right
of a wife, divorced from bed and board, to
choose for herself a domicil. do not apply. Chi-
cheeter v. Donegal, in 1 Ad. Eccl.. p.8. 19. That
of ShaehtU v. ShacluU, cited in WhUe&mb v. Whit-
conHf, 2 Curt. Eccl., 862, are decisions upon the
domicil of the wife, when liviag apart from her
husband by their mutual agreement, but not
under decrees divorcing the wife from the bed
and board of the husband. The leading case
under the same circumstances is that of War-
render v. Warrender, 9 Bligh., 103, 104. In
that case. Lord Brougham makes the fact that
the husband and wife were living apart by
agreement, and not by a sentence of divorce,
the foundation of the judgment. The general
rule is, that a voluntary separation will not

?;iv6 to the wife a different domicilation in law
rem that of her husband. But if the husbsjid,
as is the fact in this case, abandons their domi-
cil and his wife, to get rid q^ all these conjugal
obligations which the marriage relation imposes
upon him, neither giving to her the necessaries
nor the comforts suitable to their condition and
his fortune, and relinquishes altogether his
marital control and protection, he yields up that
power and authority over her which alone
makes his domicil hers, and places her in a sit*
nation to sue him for adivorceam^Tuia et thoro,
and to ask the court having jurisdiction of her
suit to allow her from her husbands means, by
way of alimony, a suitable maintenance and
support. When that has been done, it becomes
a judicial debt of record against the husband,
which may be enforced b^ execution or attach-
ment against his person, issuing from the court
which gave the decree; and when that cannot
be done on account of the husband having left
or fled from that jurisdiction to another, where
the process of that court cannot reach him, the
wife, by her next friend, may sue him, wherever
he may be found or where he shall have ac-
quired a new domicil, for the purpose of re-
covering the alimony due to her, or to carry the
decree into a judgment there with the same ef-
fect that it has in the State in which the decree
was given. Alimony decreed to a wife in a di-
vorce of separation from bed and board, is as
much a debt of record, until the decree has
been recalled, as any other judgment for money
is. When it is not paid, the wife can sue her
husband for it in a court of equity, as an inci-

62 U.S.

lt$68.

Barbbr y. Barbbk.

6d2-6C5

dent of that condition which gave to her the
right to sue him, by her next friend, for a di-
vorce.

It waa decided in the State of MaaBacbusetts,
as early as the year 1800, that there were cir-
cumstances under which it appears to be abso-
lutely necessary for the wife to sue, as for the
recovery of alimony. That case was the same,
in its circumstances, as this with which we are
dealing. The wife lit)eled for a divorce a mensa
€t thoro, on account of the extreme cruelty of
her husband. The divorce was decreed ; and
the husband was ordered to pay to her alimony,
in quarterly installments. The wife afterwards
brought an action against him for arrears. He
demurred to the declaration, and judgment
was given for her. Wheeler v. Wheeler, 2
Dcs. Abr., 310.

The same has been held in other cases in
that State. It is now established doctrine
there, and in some of our other States. They
hold that a decree for a divorce, with an allow-
ance for alimony, is as much a judgment as if
it had been obtamed on the common law side
of the court.

Rogers, Juetiee, in Clark v. Clark, 6 Watts
A t>erg., 85, places the right to recover arrears
of alimony on the ground that the husband,
after the deeree for a divorce was rendered,
had withdrawn himself from the jurisdiction
of the court, to prevent him from being forced
by attachment to pay the alimony which had
been decreed to the wife.

In the State of New York, a wife may file a
bill against her husband for alimony; and it
appearing that he had abandoned her without
any support, and threatened to leave the State,
the court, on the wife's petition, granted a
writ of ne exeat reepubUea against him. Sey-
mour y, HoMTd, 1 Johns. Ch., 2; Denton v.
J>mkm, 1 Johns. Ch.. S04.

In South Carolina, where the court, having
no power to grant divorces, decreed to a wife
alimony, on her bill praying for that remedy
only, and ordered the husband to give security
for its payment, the sheriff, having taken him
into custody, suffered him to escape ; it was held
that the wife might maintain, by her next
friend, an action at law against the sheriff for
the escape. Smith, Justice, said : " It had been
urged in the argument that this woman, being
Afeme covert, could not maintain the action by
her next friend. If that argument were to pre-
vail, there would be a failure of justice, which
our law abhors, as there would be no means
of enforcing a decree of jbl wife against her
husband for alimony. T^e court of equity
could order a refractory husband to be at-
tached, and the sheriff would let him go, if
he thought proper; then, if the wife could not
sue by her next friend, who could? The law
provides no other course. And. upon this oc-
casion, I would adopt the course of a very
learned judge, ' if there is no precedent, I will
make one. '

In Ohio, a wife divorced a menea et iJunro
may maintain ejectment for a lot of land, the
use of which was allowed to her as alimony.
In Virginia, it was said, in Pureell v. PurceU,
4 Hen. AM., 507, that the Court of Chancery
has jurisdiction in all cases of alimony. In
Maryland the Hi^h Court of Chancery, from
the earliest colonial times, exercised the juris-

8ec 21 How.

diction to decree alimony, but not to grant di-
vorces.

This was done under the belief that it be-
longed to the High Court of Chancery, in
the absence of ecclesiastical tribunals; and in
1777 an Act of Assembly provided that the Chan-
cellor shall and may hear hear and determine all
causes for alimony ; in as full and ample a manner
as such causes could be heard and determined by
the laws of England, in the ecclesiastical courts
there.

Under that Statute, alimony is granted to
the wife whenever the EngHsh courts would
be authorized to render a divorce from bed
and board ; but the court has no power to ex-
tend the remedy, and decree a divorce also.

The inherent jurisdiction of a court of equity
to decree alimony has also been acknowl^ged
in Alabama. In r^orth Carolina, bills of equity
by the wife against the husband, praying ali-
mony, were sustained, from an early day,
without question as to the lawfulness of the
jurisdiction.

Where such a decree has been made, whether
done as an inherent power in equity to grant
a decree for alimony, or as an auxiliary to
enforce the payment of it as an incident of a
divorce a mensa etthoro, there are no decisions,
either in the English or American books, de-
nying the wife's right to sue her husband for
arrears of alimony due, by her next friend.

In some of the States she may do so, with-
out the intervention of her next friend ; but she
cannot do that, as has been said before, in
the courts of the United States having equity
jurisdiction.

We think, also, that the cases which have
been cited in this opinion are sufficient to show,
whatever may have been the doubts in an ear-
lier day, that a wi^e under a judicial sentence
of separation from bed and board is entitled to
make a domicil for herself, different from that
of her husband, and that she may by her next
friend, sue her husband for alimony, which he
had been decreed to pay as an incident to such
divorce, or when it has been ^ivec after such
a decree by a supplemental bill. In our best
reflections, we have been unable to come to a
different result. The privileges allowed to a
wife under such circumstances rest upon the
facts that the separation is only grantablc
propter SavUiam ; that the alimony commonly
allowed is no more than enough to give her a
home and a scanty maintenance, almost neces-
rarily short of that from which her husband
has driven her; and that, as a consequence, she
should be permitted to change her domicil,
where she may live upon her narrow allowance
with most comfort and the least mortification.
Her right to sue her husband, by her next
friend, for alimony already decreed, rests upon
higher considerations, or upon legal principles
which have been so well expressed by vhief
Justice Shaw, as to her right to sue in the State
of Massachusetts, that we will use hid lan-
guage, deeming it to be applicable in any other
State in the American Union :

*' After such a divorce, the law of this Com-
monwealth recognizes her right to acquire and
hold property, to take her own earnings to her
own use, for the maintenance of herself and
her children. She is deprived of the protec-
tion, and exempted from the control, of her

281

582-605

SuFBBMB Court or the UirrnBD Statbs.

Dbg. Tbrm,

husband. She may by the decree of the court
granting the divorce, and pursuant to the pro-
yision of the statute law of the Commonwealth,
be charged with the custody, and consequently
with the support and maintenance, of the chil-
dren of the marriage. The reason, therefore,'
why a wife cannot sue or be sued without
joining or being joined with her husband, does
not exist. The relation in which the divorce a
tnensa et thoro places the parties opposes a
joinder: If it were necessary to loin the bus-
sand as plaintiff, he might release her rights,
by which she would be subjected to costs; if
he might be Joined as defenciant, he mieht be
made subject to her debts; both of which con-
sequences are repugnant to the true relation of
divided and separate interests, in which the law
by such a decree places them. Whilst the
law thus recognizes the right of a woman so
divorced to acquire and take the proceeds of
her own industry to her own use, it recognizes
her power to make contracts; and if she could
not sue and be sued, it would present the
anomalous case in which the law recognizes a
right without affording a remedy for vindi-
cating it, and subjects a party to a duty with-
out lending its aid to enforce it."

We do not deem it necessary to show, fur-
ther than it has already been done in this opin-
ion, that the equity side of the court was the
appropriate tribunal for this cause. We have,
however, verified the correctness and applica-
bility of several of the cases cited in his argu-
ment by the counsel of the complainant to sus-
tain that point, and deem them decisive.

The only point remaining for our determina-
tion is that which questions the complainant's
right to pursue her remedy in the equity side
of the District Court of the United States in
the State of Wisconsin.

The facts are, that she married the defend-
ant in the State of New York, the State tiien
of her husband's domicil ; that they lived there
until the decree of separation was made; that
she has retained it ever since as her domicil,
but that the defendant, after the decree of sep-
aration was given, left her domicil in New
York for another in the State of Wisconsin, in
which he says diat he has acquired a domicil.
The complainant comes into court in the char-
acter of citizen of the State of New York.
Mrs. Barber is recognized to be such by the
laws of that State, and her status as a divorced
woman a mensa et tfwro by a court of compe-
tent jurisdiction in New York, and the rights
of citizenship which she has under it there, are
decisive of her right to sue in the courts of the
United States, as that has been done in this
instance. The citizenship of the defendant is
admitted and claimed by him to be in the State
of Wisconbin. His voluntary change of domi-
cil from New York to Wisconsin makes him
suable there. That might have been done in a
state court in equity as well as in the District
Court of the United States; but she had aright
to pursue her remedy in either. She has chosen
to do so in a court of the United States, which
has jurisdiction over the subject matter of her
claim to the same extent that a court of equity
of a State has, and we think that ^e court be
low has not committed error in sustaining its
jurisdiction over this cause, nor in the decree
which it has made.

2S2

We affirm the decree of thai court, and direct
a mandate to be istued accordingly.

Dissenting, Mr. Justice CamiibeU« and Mr,
Jtuitice Daniel, and Chief Ju^ice Taney.

Mr, Justice Daniel, dissenting:

From several considerations, which to me
appear essentially important, I am consfrained
to differ in opinion with the majority of the
court in this case.

1st. With respect to the authority of the
courts of the United States to adjudicate upon
a controversy and between parties such as are
presented by the record before us. Those
courts, by the Constitution and laws of the
United States, are invested with Jurisdiction
in controversies between citizens of different
States. In the exercise of this Jurisdiction, we
are forced to inquire, from the facts disclosed
in the cause, whether during the existence of
the marriage relation between these parties the
husband and wife can be regarded as citizena
of different States? Whether, indeed, by any
re^lar legal deduction consistent with that re-
lation, the wife can, as to her civil or political
status, be regarded as a citizen or person.

By Coke and Blackstone it is said: that *'By
marriage, the husband and wife become one
person in law ; that is, the very being or le^l
existence of the woman is suspended dunng^
the marriage, or at least is incorporated or con-
solidated into that of the husband, under whose
wing and protection she performs everything.
Upon this principal of union in husband and
wife, depend almost all the rights, duties, and
disabilities, that either of them acquire by the
marriage. For this reason, a man cannot grant
anything to his wife, nor enter into a covenant
with her, for the grant would be to suppose
her separate existence, and to covenant with
her would be only to covenant with himself;
and therefore it is generally true, that all com*
pacts made between husband and wife, when
single, are voided by the intermarriage." Co.
Lit., 112; Bla. Com., Vol. I., p. 442. So, too,
ChanceUor Kent {Yol II., p. 12h): "The le-
eal effects of marriage are generally deducible
from the principle of the common law, by
which the husband and wife are regarded as
one person, and her legal existence and author-
ity in a degree lost and suspended during^ the
existence of the matrimonial union."

Such being the undoubted law of marriage,
how can it be conceived that pending the exist-
ence of this relation the unity it creates can be
reconciled with separate and independent capac-
ities in that unity, such as belong to beings
wholly disconnected, and each sui juris f Now,
the divorce a mensa et thoro does not sev^r the
matrimonial tie; on the contrary, it recognizes
and sustains that tie; and the allowance of
alimony arises from and depends upon recip-
rocal duties and obligations involved in -that
connection. The wife can have no claim to
alimony but as wife, and such as arises from
the performance of her duties as wife; the
husband sustains no responsibilities save those
which How from his character and obligations
as husband, presupposing the existence and
fulfillment of conjugal obligations on the part
of the wire. It has been suggested that by the
regulations of some of the States a married wo-

62 U. S

1858.

Babbkb y. Bakbbr.

682-605

man, after separation, is permitted to choose a
residence in a community or locality different
from that in which she resided anterior to the
separation, and different from the residence of
Ihe husband. It is presumed, however, that
no regulation, express or special, can be req-
uisite in order to create such a permisson.
This would seem to be implied in the divorce
itself; the purpose of which is, that the wife
should no longer remain siUf poiestaU viri, but
should be freM from the control which had
been abused, and should be empowered to se-
lect a residence and such associations as would
be promotive of her safety and her comfort.
But whether expressed in the decree for sep-
aration, or implied in the divorce, such a priv-
Usge does not destroy the marriage relation;
much less does it remit the parties to the posi-
tion in which they stood before marriage, and
create or revive ante-nuptial, civil, or political
rights in the wife. Both parties remain sub-
ject to the obli^tions and duties of husband
and wife. Neither can marry during the life-
time of ihe other, nor do any act whatsoever
which is a wrong upon the conjugal rights and
obligations of either. From these views it
aeems to me to follow, that a married woman
cannot, during the existence of the matrimonial
relation, and during the life of the husband the
wife cannot be remitted to the civil or political
position of a feme eoU, and cannot, therefore, be-
come a citizen of a State or community different
from that of which her husband is a membef.
2d. It is not accordance with the design and
operation of a government having its origin in
causes and necessities, political, general and
external, that it should assume to regulate the
domestic relations of society, should, with a
kind of inquisitorial authority, enter the habi-
tations ana even into the chambers and nurser-
ies of private families, and inquire into and
pronounce upon the morals and haUts and af-
fections or antipathies of the members of every
household. If such functions are to be exer-
cised by the federal tribunals, it is important
to inquire by what rule or system of proceed-
ing, or according to. what standard, either of
ethics or police, they are to be enforced. With-
in the range subjected to the political, general
and uniform control of the federal Constitu-
tion, there are numerous Commonwealths, and
within these are ordinances much more nu-
merous and diversified, for the definition and
enforcement of the duties of their respect-
ive members. Now, to which of these ordi-
nances, or to which of these various systems
of regulation, will the federal authorities resort
as a source of jurisdiction, or as a rule of de-
cision, especially when it is borne in mind that
it is only between members of different com-
munities, persons legitimately subject to such
separate rules of obligation or policy, that the
tribunals of the Federal €k>vernment have conii-
zance; when, too, it is recollected that the Feder-
al Government is clothed with no power to exe-
cute the laws of the States. The federal tri-
bunals can have no power to control the duties
or the habits of the different members of private
families in their domestic intercourse. This
power belongs exclusively to the particular com-
munities of which those families form parts,
and is essential to the order and to the very
existence of such communities.

See 21 How.

It has been suggested, that by the decree for
separation a menm et thoro, the husband and
wife have become citizens of different States,
and that the allowance to the wife is in the nat-
ure of a debt, which, as a citizen of a different
State, she may enforce against the husband in
he federal courts. This suggestion, to my mind,
involves two obvious fallacies. The first is the
assumption, that by the decree, the wife is made
a citizen at all, or a person mi juris, whilst yet
she is wife, still bound by her conjugal obliga-
tions, the faithful observance of which, on her
part, is the foundation of her claim to main-
tenance as wife, and which claim she would
forfeit at any time by a violation of these ob-
ligations. Indeed, the form of her applica-
tion is an acknowledgment that she is not «ur
Juris, and not released from her conjugal dis-
abilities and obligations, for she sues bypro-
ehein ami.

The second error in the position before men-
tioned Lb shown by the character and objects
of the allowance made as alimony to a wife.
TMs allowance is not in the nature of an abso-
lute debt. It is not unconditional, but always
dependent upon the personal merits and con-
duct of the wife — merits and conduct which
must exist and continue, in order to constitute a
valid claim to such an allowance. This allow-
ance might unquestionably be forfeited upon
proof of criminality or misconduct of the wife,
who would not be permitted to enforce the pay-
ment of that to which it should be shown she had
lost all Just claim: and this inhibition, it is pre-
sumed, might embrace us well a portion of that
allowance at any time in arrears, as its demand
in future. The essential character, then, of this
allowance, viz.: its being always conditional
and dependent, both for itsorgin and continua-
tion, upon the circumstances which produced
or iustifled it. is demonstrative of the propriety
and the necessity of submitting it to the control
of that authority whose province it was to
judge of those circumstances. That authority
can exist nowhere but with the power and the
right to control the private and domestic rela-
tions of life. The Federal Gk>verment has no
such power; it has no commission of censor
morum over the several States and their people.

But, irrespective of the disability of the wife
as a party, I hold that the courts of the United
States, as courts of chancery, cannot take cogni-
zance of cases of alimony.

It has been repeatedlv ruled by this court,
that the Jurisdiction and practice in the courts
of the united States in equity are not to be
governed by the practice in the state courts,
but that they are to be apprehended and ex-
ercised according to the principles of equity,
as distin^ished and defined in that country
from which we drive our knowledge of those
principles. Such is the law as announced in
the cases of Robinson v. Campbell, 8 Wheat.,
212: The United States v. Howland, 4 Wheat.,
108; Boyle v. Zaehris ife Turner, 6 Pet.,
Pet., 648. It is repeated in the cases of Storjf
V. Livingston, 13 Pet., 850, and of Oaines v.
Belf, 15 Pet., 9. Now, it is well known that
the Court of Chancery in England does not
take cognizance of the subject of alimony, but
that this one of the subjects within the cogni-
zance of the Ecclesiastical Court, within whose
peculiar jurisdiction marriage and divorce are

288

589-605

817PKUMR Court of thb Unitbd Btatbs.

Dec. TsRjf ,

comprised. Of these roatterg, the Court of
Chancery in England claims no cognizance.
Upon questions oi settlement or contract con-
nected with marriages, the Court of Chancery
will undertake the enforcement of such con-
tracts, but does not decree alimony as such,
and independently of such contracts.

In Roper on the Law of Baron and Feme
(Vol. II., p. 807). it is stated that Lord Lough-
borough, in a case in 1 Vesey, Jr. , 105, is re-
portea to have said, that if a wife applied to
the Court of Chancery upon a supplieavit for se-
curity of the peace against her husband, and it
was necessary that she should live apart as in-
cidental to that, the Chancellor will allow her
separate maintenance. That this passage has
been quoted bv Sir William Grant in 10 Ves.,
897, and that the same opinion was advanced in
the case of Lambert v. Lambert, 2 Brown's Par-
liamentary Cases, p. 26. "But, "continues this
writer, '* there seems to be no reported instance
of such a jurisdiction, and it would be incon-
sistent with the object and form of the writ of
suppUeatfit;*' and he concludes with the posi-
tion that *'the wife can only obtain a separate
maintenance in the ecclesiastical courts where
alimonv is decreed to be paid during the pend-
ency of any suit between husband and wife,
and after its termination, if it ends in a sen-
tence of separation on the ground of the hus-
band's misconduct."

From the above views, it would seem to fol-
low, inevitably, that as the Jurisdiction of the

2«4

chancery in England does not extend to or em-
brace the subjects of divorce and alimony, and
as the jurisdiction of the courts of the United
States in chancery is bounded by that of the
chancery in England, all power or cognizance
with respect to those subjects by the courts of
the United States in chancery is equally ex-
cluded.

It has been said that, there being no eccle-
siastical court in the United States, many of the
States have assumed jurisdiction over the sub-
jects of divorce and alimony, through the
agency of their courts of equity. The answer
to this suggestion is. first, that it concedes the
distinction between the character and powers
of these different tribunate. In the next place,
it may have been that the jurisdiction exercised
by the state courts may have been conferred
by express legislative grant; or it may have
been assumed by those tribunals, and acqui-
esced in from considerations of convenience, or
from mere toleration; but whether expressly
conferred upon the state courts, or tacitly as-
sumed by them, their example and practice
cannot be recognized as sources of authority
by the courts of the United States. The origin
and the extent of their Jurisdiction must be
sought in the laws of the United States, and in
the settled rules and principles by which those
laws have bound them.

Cited-O Wall., 124: Deady, aOS, 818: 10 Blatchf.,
440; 4 Bi88., 870; 1 Woods., 643.

H2 U.S

End of Volume 62.

ARGUED AND DECIDED

TX THK

SUPREME COURT

OF THB

UNITED STATES,

DECEMBER TERM, 1859.

Vol. 63.

RKFER-EN'CE TAP.LE

n E C E M H K fl T R U M , I (I B 11

vn iikFK Auai (i«»s Hntun-Mi <>

iiaA I «tl custw <

lur. In. IlKHv

: 'ail.ih iMtMiaab ^I-'.i

ImcAr. i.isTOpr'ASKS imi'ORTnDirTmsTfli.TrMii:.

. biiia, ttUtoiitnu m. Xfl)

t CabeUWIIIJtmsoB,

Attorney at Law

493 LouMtmAv*.

THE DECISIONS

OF THB

Supreme Court of the United States,

DECEMBER TERM, 1869.

J. W. HODGE. JOHN W HUNTER. HAY
WOOD HUNTER. THOMAS COLEMAN
AND YOUNG COLEMAN. Plffg. in Er,,

^JOHN A.WILLIAMS.

(See 8. Cm 22 How., 87-80.)

Writ of error mtt^t be brought by party who aUegee
error — amendment of, rtfueed—party must see
that process is legal,

ThiBOOurthasno appellate power over the Judgr-
ment of the court below, unless the Judflrment is
brought here by writ of error, sued out by the party
who alle^ree error id the Judgrment of the inferior
court.

This court has unif(»rml3r refused to amend
writs of error.

It is the duty of the party who desires to brlnsf
a case before this court, to see that proper and
lesal process Is sued out for that purpose : and if he
falls to do so, the writ of error must be dismissed.

Motion made Dec. 9, 1859, Decided Dec. 19, 1869,

IN ERROR to the District Court of the United
States for the Eastern District of Texas.
On motion for leave to amend the record, or
to dismiss this writ of error for want of jurisdic-
tion.
The case is stated by the court.

Ifr. Wm. O. Haie» for the plaintiflfs in error.

Mr. Robert Hng^hes. for defendant in
error.

Mr, Chief Jiutiee Taaey delivered the opin-
ion of the court:

It appears, from the record in this case, that
an action was brought in the Circuit Court of
the United States for the Eastern District of
Texas, by John A. Williams, against Hodge
and the other defendants named in the pro-
ceedings, and at the trial, the Judgment was
against the plainti£f.

The writ of error removing the case to this
court is in the name of the defendants who suc-
ceeded in the court below, and do not desire to
disturb the Judgment; and the plaintiff in that
court, who alleges error in the Judgment, and
seeks to reverse it. is made the defendant in the
writ of error.

It is evident that the writ was intended to be
sued out by the plaintiff in the court below, and
that the names of the defendants, as plaintiffs

See 22 How.

in the writ, were used without their authority :
for the errors are assigned by the plaintiff, and
the bond states that a writ of error has been
sued out by him, and the citation issued by the
Judee is directed to the defendants, and served
on tneir counsel. And it is obvious that the writ
in the name of the defendants was an oversight
of the clerk by whom it was issued.

But the amendment proposed cannot be made
here. An amendment presupposes Jurisdiction
of the case. And this court have no appellate
power over the Judgment of the court below,
unless the Judgment is brought here according
to the Act of Congress — that is, by writ of error;
and that writ, from its nature and character,
must be sued out by the party who alleges error
in the Judgment of the inferior court. This
writ is not a mere matter of form, but matter
of substance, prescribed by law. and essential
to the Jurisdiction of this court. And if it were
amended here, by making the plaintiffs in error
defendants, and the defendant in error the
plaintiff, it would be a new writ made here, and
not the one issued by the officer appointed by
law.

Upon this principle, the court have uniformly
refused to amend writs of error; and this must
now be regarded as the settled practice of the
court. It has repeatedly refused to amend,
where the partnership name of a firm name was
used instead of the proper names of the parties;
and in like manner it has refused to amend
where the name of one or more of the parties
were given, and the rest designated as others
Joined with them, without setting out the names
of those intended to be included as others.

But the precise point now before us was de-
cided in the case of Bines v. Papin, at Decem-
ber Term, 1857. The same error was com
mitted in that case which had been committed
in this; and the error was equally apparent, as
in the present instance, from the recital in the
bond and the citation and service. The case
was. indeed, even stronger for the amendment
than this, for counsel appeared in this court for
each of the parlies, and offered to amend by
consent. Yet the court refused to amend, upon
the ground that consent of parties would not
give Jurisdiction, where it was not ^iven by law
and legal process. But here there is no appear-
ance fox the parties who are named as plaint-
iffs in the writ of error; and if we order the

287

214-217

« SUFBBMB COUBT OF THB UNITfeBD StATBB.

Dbc. Tbkm,

amendment, we should make them defendants
in a suit in which they are not bound to appear
in that character. It is the duty of the pkrty
who desires to brine a case before this court, to
see that proper and legal process is sued out for
tliat purpose ; and if he fails to do so, he has no
right to treat the defect as a mere clerical error,
for which he is not to be held responsible.

The opinion in the case of Hinet v. Papin,
above referred to, was deliyered orally, and not
reduced to writing, and consequently does not
appear in the printed reports. The court have,
therefore, deemed it advisable to state now the
practice and doctrine of the court in this re-
spect, in order that suitors may be aware of the
necessity of paying proper attention to the proc-
ess they issue, and not sublect themselves to
costs and delays by errors which a clerk, in the
hurry and pressure of other business, .will un-
unavoidably sometimes commit.

The writ of error must, thertfore, upon the
motion before the court, be dismissed, as it cannot
he amended,

Cited-8 U. 8. (6 WaU.), 496; TB U. 8. ai WaUJ, 86.

GEORGE BONDIES, late Master and Part
Owner of the Steamt>oat Kate, Intervening,
&c.,Appt., ^

JAS. P. SHERWOOD, JOB. McCLELLAND

AND BARNEY McGINNIS, Libts.

(See 8. C. 2S How.. 214-217.)

Contract to raise sunken vessel cannot be repudi-
ated and libel filed for salvage.

Where the libelants agreed to raise a sunken ves-
sel in fourteen davs^and proceeded under their
contract to raise the vessel, but not within the
asrreed time, and the barsrain was an unprofitable
one, the libelants cannot repudiate It and file a libel
f oi* salvaflre

Assumlnir the services rendered to be in nature
of salvage services, and that a court of admiraltv
had jurisdiction to enforce the contract, as a man-
time contract, yet the libelants, by their own show-
inflTt cannot recover under the contract.

And it is equally dear that they cannot repudiate
their contract, and lll>el the vessel for salviAge.

Submitted Dec. 7, 1869. Bedded Dec. 19, 1869.

APPEAL from the District Court of the Unit-
ed States for Ihe Eastern District of Texas.

The libel in this case was filed in the court
below, by the appellees, on a claim for salvage
compensation. The said court found for the
libelants, and entered a decree for $2,576, as
salvage, being^fifty per cent, of the total value of
everything saved; whereupon the claimant took
an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Messrs.. 1a. Sherwood and WUliajn O.
Halet for appellant:

The whole case is replete with evidence that
libelants worked under the written contract and
under no verbal agreement whatsoever; that
Bondies cautiously avoided all verbal agree-
ments ; that he carefully guarded the boat, car^o,
himself and the underwriters, by stipulaUng
against all claims for salvage services; that he
sought to guard against a devastavit upon the

2118

property by stipulating that he should retain
exclusive possession until the contract should
be complied with by the libelants.

No counsel appeared in this court for the ap-
pel lees.

Mr. Justice Giier delivered the opinion of
the court:

The appellees, describing themselves as ship-
carpenters, residing in Galveston, filed their
libel in the District Court of Texas against Uie
Steamboat Kate, and against Bondies, late mas-
ter and owner, in a " cause of salvage, civil and
maritime."

They charge that the steamboat left the port
of Gkilveston. for ports and places on the Trinity
River, in said District of Texas, lo^en with mer-
chandise. That the boat was snagged and sunk
in the river near Morse's bluff/ in Liberty
County.

That on the 84th of April, 1856, the ifbelants
entered into an article of agreement, under seal,
with Bondies, who had become sole owner of
both cargo and vessel, to raise the vessel.

In this agreement, the libelants covenant to
proceed with the necessary boats, apparatus^
&c. , and to raise the steamhioat at their own cost
in fourteen days after their arrival aLihe place
where it lay, provided they were notninaered
by high water; when raised, the boat to l>e
taken to Galveston. Bondies covenants to con-
vey the boat to them, on their payment to him
of $4,000, and also to subrogate them to all his
claims a^inst the cargo. But, in the mean
time, until the covenants of libelants were per-
formed, the legal possession of the boat and
can^o was to be ana remain in Bondies.

The libel alleges that ''this agreement was
mutually ffiven up and abandoned.*' But this
averment h not sustained by the evidence. On
the contrary, it appears that the libelants pro-
ceeded under their contract to raise the vessel,
but did not succeed till sometime in July. The
boat and merchandise being much injured in
the operation and by the delay, it turned out
that the costs and expenses would exceed the
whole value of the boat and cargo when re-
covered. The bargain was, therefore, an un-
profitable one, and the libelants concluded to
repudiate it. and filed this libel for salvage.

Without adverting to the numerous other
facts developed in the history of this case, but
which cannot affect its merits, it is very plain,
that assuming the services rendered by these
mechanics to be in the nature of salvaice serv-
ices, and that a court of admiralty had Juris-
diction to enforce the contract both against the
owner and the boat as a maritime contract, yet
the libelants, by their own showing, cannot re-
cover under the contract. And it is equally
clear that they cannot repudiate their contract,
and libel the vessel for salvage.

See TA« Mulgra/oe, 2 Hagg. Adm., 78, and
Abbott on Shipping. 706.

For this reason alone the libel must be dis-
missed.

But there are two other questions which arise
on the face of of this record, and which it will
not be necessanr to decide, but which ought
not to pass witnout notice, lest an inference
should be drawn from our silence that the court
considered them of no importance, or intended
to decide tnem in favor of the libelants:

68 U.S.

1859.

Lawler y. Claplik.

2^28

1. By the 19th lule prescribed by this court
for practice in the courts of admiralty, it is
ordered, that **in all suits lor salvage the suit
may be in rem against the property saved, ob
in personam against the party at whose request
and for whose benefit the salvage service has
been performed." By reference to Mr. Conk-
lin's treatise, page 43, it will be found that it
is the prevailing opinion that both <uinnot be
joined in the same libel. The point has not
been brought before this court, and we notice
it now only to show that it is not now decided.

2. The libel shows that the steamboat was
engaged in the internal trade of the State of
Texas, proceeding from a port in the same, up
a river wholly within the same. It is not even
alleged that she had a coasting license. That
a court of admiralty had jurisdiction in such a
case, or that the maritime law of wreck and
salvage could be applied to it, are questions not
made by the pleadmgs nor noticed in the argu-
ment, and therefore are not decided by the
court.

Lei the Ubel be diemissed^ with costs,

Citcd-1 Low., 157, 206 ; 8 Woods, 212.

WILLIAM B. LAWLER. AppL,

HOBiACE B. CLAFLIN, WM. H. MELLEN,

NATHANIEL F. MILLER. DAVID H.

CONKLING. AND HENRY STONE.

(See S. C, 22 How.. 28-28.)

Where record defectioe, no exceptions, and jury
waived, nothing to review. ^

In a suit on a mortiraffe, where the loose papers
oertifled from the Supreme Court of Minnesota to
this court has neither the form nor substance of
a reoord. and no exceptions were taken,and a Jury
was waived^ and the facts were submitted to the
court, there is nothing for this court to try.

Argued Dee, 8, 1869. Decided Dee. 27, 1869.

APPEAL from the Supreme Court of the Ter-
ritory of Minnesota.

This action was brought in the District Court
of Ramsey County in Minnesota, by the appel-
lees, to foreclose a certain mortgage. A Jury
having been waived, the court entered Judg-
ment of foreclosure. This -judgment having
been affirmed on appeal by the Supreme Court
of the Territory of Minnesota, the defendant
took an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Messrs. Brisbin Sb Big^low, H. W. Mer-
rill and H« L« Stevens, for appellant:

The note and mortgage were effectual and
valid as collateral security for the debt of
$3,126.08, and for that debt only; and the
payment of this identical debt on Dec. 15,
1852, satisfied and discharged the note and
mortgage.

BUaden v. Charles, 7 Bing. . 246; Walker v.
JSnediker, 1 Hoffm. Ch., 145; Shirras v. Caig, 7
Cranch, 84: Chit. Bills, ch. 8, pp. 84. 96.
12th ed. ; Story, Prom. N., sec. 187, cases
cited, 2d ed.

The mortga^, in any Just view of the case,
was not a continuing security. No reasonable

See 22 How.

construction can give it the effect of a continu-
ing guaranty covering future balances.

Wright v. Minson, 8 Wend., 512; Hunt v.
Smith, 17 Wend.. 179; Dobbin v. Bradley, 17
Wend.. 422; Fellows v. Prentiss, 8 Den., 512;
Baker v. Band, 18 Barb., 152; Bigelow v. Benr
ton, 14 Barb.. 128.

A mortgage once paid becomes/t^n^^iM officio,
and is forever extinguished, and a fortiori when
given by a surety as collateral security.

Truseott v. Kin^, 6 N. Y. . 1 62 ; Mead v. York,
6 N. Y., 452; Bergen v. Boerum, 2 Cai., 256;
Robinson Y. Frost, 14 Barb., 536, 543; Wheel-
wright v. De Peyster, 4 Edw. Ch., 282; 17 N.
Y., 242. 246.

Mr. R, H. Oillet* for appellees:

The decision of the court where a Jury is
waived, is conclusive upon the parties as to all
questions of fact, and the appellate court cannot
review its decision on such questions.

United Slates v. King, 7 How., 888; Bond v.
Brown, 12 How., 254: Chrckham v. Bayne. 59
U. 8. (18 How.), 60; PenhaOow v. Doans,
8 Dall., 54; Ouild v. Frontin, 59 U. 8. (18
How.), 135; Oraig v. Missouri, 4 Pet.. 410;
Suydam v. Williamson, 61 U. S. (20 How.).
427; Kelsey v. Forsyth, 62 U. S. (20 How.),
85; CampbiU v. Boyreau, 62 U. 8. (21 How.),
224.

The cause, having been tried without a jury,
no objection can be taken to the admissibility
of evidence.

Weems v. Oeorge, 18 How.. 190; Arthurs v.
Rart, 58 U. 8. (17 How.), 6; Martin v. Ihmsen,
62 U. 8. (21 How.), 894.

The record does not show any exceptions;
and, therefore, defendant cannot raise the ques-
tion of the admissibility of evidence in this
court.

Stevens v. Gladding, 60 U. 8. (19 How.), 64;
OuHd V. Frontin, 59 U. 8. (18 How.), 185;
Prentice v. Zane, 8 How. . 470.

Mr. Justice MeLeaa delivered the opinion
of the court:

This is an appeal from the Supreme Court
of the Territory of Minnesota.

The suit was brought on a mortgage executed
the 1st day of October, 1852, by Ann Cur-
ran, the duly authorized attorney in fact of
William B. Lawler. conditioned for the pay-
ment of the sum of |4,000. being part of lot three,
in block thirty, in the Town of St. Paul, form-
ing an oblong square, forty-two feet on Third
Street by eightv feet on Roberts Street. This
mortgage was duly recorded on the day subse-
quent to that of its execution.

This mortgage, it was alleged, was executed
to secure a sum of monev then due to the plaint-
iffs, and which was likely to become due, in
the further purchase of merchandise from the
plaintiffs by the defendant. The plaintiffs ac-
cepted the mortjrage, as security for purchases
to be made, or any debts which the firm of
Curran & Lawler might subsequently owe the
firm.

The understanding and agreement between
the parties was, that the mortgage was to
be held by plaintiffs as a pledge or collateral
security, ana was not to be canceled or de-
livered up until all purchases which Curran
& Lawler might make, and which might be-
come due at any time within the year — that is,

289

217-225

MUPRSlOfi COGKT OP THE UnTTIED BtATBS.

Dbc. Tbbm

before the Ist day of October, 1858. Bo long
as anything should remain due on such pur-
chases, the indebtment was to be considered
and deemed secured by the mortgage.

The payment of the note and mort^rage, as
alleged by Curran & Lawler in their answer,
is denied; and it is stated that the amount of
indebtment on the note and mortgage, at ma-
turity, was upwards of $5,000.

It is difficult to determine the character of
the loose papers certified from the Supreme
Court of Minnesota to this court. They have
neither the form nor the substance of a record.
The papers seem to be thrown together, as
much by accident as design; and one can
scarcely gather any special object in reading
the transcripts. It would seem that neither
certainty nor order can be extracted from these
papers, and that some form should be adopted
by which the pleadings should be stated, and
the points controvert^, whether of fact or of
law. Many objections are made to questions
propounded to witnesses, but no exceptions
seem to have been taken.

A jury seems to have been waived, and the
facts were submitted to the court. In such a
case, the question of law arising on the facts
would appear to have been decided by the
court. Still, no exception is taken. In fact,
there seems to be nothing for this court to try«
except the validity of the mortgage and the
fact of its discbarge. And, even in this mat-
ter, the evidence is in conflict, and it is diffi-
cult to decide the point disputed.

The mortgage was for |4,000, and was to
stand as a security fqr the balance due the plaint-
iffs: and in this way it was intended to give an
additional credit to the company. From the
manner in which the mortgage was treated, it
appears to have been designed as a standing
guaranty for the sum named.

And, in the language of the court, the said
** action having come on to be heard at the Ma}
Term of the District Court of Ramsey County,
upon the complaint of the plaintiffs and the
answer of the said William B. Lawler, before
the presiding judge of said court, a jury trial
therein having been waived bv the respective
parties, the same having been decided in favor
of the plaintiffs, and that there is due on the
notes and mortgage upon which the action is
brought the sum of |4,495.40, with interest
from the 4th October, 1853, amounting in all
to 15.084.07: and, on motion, it was ordered,
adjudged and decreed, that the mortgaged
premises, or so much thereof as may be neces-
sary, be sold by the sheriff for the payment of
the mortgage; and it is further ordered, ad
judged and decreed, that the defendants, and
all i)ersons claiming under them, be forever
barred," &c.

On the appeal of Lawler and others from the
District Court of Ramsey County to thp Su-
preme Court of the Territory, *' the matters at
issue in this cause having been fully considered,
it appears to this court that, in the proceedings,
decree, and judgment thereon, in the District
Court of Ramsey County, to this court ap
pealed from, there is no error. It is therefore
ordered that said decree and judgment be in
all things affirmed with costs," &c.

From ihis last decree there is an appeal now
pending before this court.

In looking into the facts of this case, it doea
not appear that the merits are changed by the
views taken by the District Court of Ramsey
County, or bv the decision of the Supreme
Court of the IPerritory.

The evidence is against the discharge of the
mortgage. After the amount claimed under
the mortgage, there is still a balance due the
plaintiffs on general account.

Upon the whole, the decree of the Supreme
Court of the Territory is aflrmed; and the cause
is remitted to the Supreme Court of the State ef
Minnesota, to he carried into effect as the law au-
thorises.

l'40

EDWIN M. CHAFFEE, Plff, in Br.,

THE BOSTON BELTING COMPANY.

(See 8. C, 22 How., 217-225.)

Purchaser of patented machine may use it dur-
ing extended term — error in charge, to assume
fact not proved.

A party who had purchased a patented machine,
and was using: It during: the orlgrioal term for which
the patent was ^ranted, may continue to use the
macnine during the extended term and until it Ib
worn out, or he may repair it or improve upon It,
as he pleases, in the same manner as if dealloff with
property of any other kind.

That the defendant had a title to the maohinery
and was rightfully in the use of It under that
title, before and at the time the original letters
patent expired, finds no support in the evidence re>
ported.

It*lB clearly error for the court. In its instruction
to the Jury, to assume a material fact as proved, of
which there is no evidence.

And when the findingr of the jury accords wiUi
the theory of the instruction thus assumed witta>
out evidenoe, the error is of a character to deserve
correction.

Argued Dee. 7, 1869. Decided Dec. £7, 1869.

IN ERROR to the Circuit Court of the Unit-
ed States for the District of Massachusetts.

This was an action on the case brought in
the court below, by the plaintiff in error, for
the alleged infringement of certain rights se-
cured by letters patent.

The trial below having resulted in a verdict
and Judgment for the defendant, the plaintiff
sued out this writ of error.

A further statement of the c&se appears in
the dpinion of the court.

Messrit, T. A. Jenckes and C. A. Sew-
ard* for plaintiff in error:

I. The court below erred in charging the
jury that under its title the defendant had a
right to continue to use the same machinery
for the same purpose. This charge was predi-
cated upon an assumption of title in the de-
fendant which had not been proved. This en-
titles the plaintiff to a reversal of the Judgment,
and to a venire faeias de novo.

The court below assumed in its charge that
the defendants, upon the assumption that they,
were rightfully in the use of the plaintiff's pat-
ent dunng its original term, had by operation
of law a right to continue that use during the
extended term. To this we reply:

1. That the license from Gooidyear to Ed-
wards was, by its terms, for so long only as said
Gk)odyear and his assigns shall be posaessed of

6S U.S.

1859.

Chaffbe v. Boston Belting Co.

217-235

any valid patent rights or the United States be-
fore mentioned.

2. The defendants derive no right from the
proviso of the 18th section of the Act of July
4, 1836, to use the invention during the ex-
tended term.

Brooks V. Byam, 2 Story, 525; Curt. Pat.,
sees. 195, 197.

It is well settled that an instrument like that
between G^oodyear and Edwards is not an as*
signmenl or a grant, but a mere license.

Blanchard v. Eldridge, 1 Wall., Jr., 838;
Gayler v. Wild&r, 10 How. , 477.

Mr, H. F. Darant, for the defendant in
-error, submitted no argument in this court.

Mr, Justice Clifford delivered the opinion
of the court :

This case comes before tlie court on a writ of
-error to the Circuit Court of the United States
for the District of Massachusetts. It was an ac-
tion of trespass on the case, for the alleged in-
fringement of certain rights secured by letters
patent.

As the foundation of the suit, the declaration
alleges, in effect, that the assizor of the plaint-
iff was the original and first inventor of certain
imt>rovements in the manufacture of India rub-
ber, and that in the year 1886 letters patent for
«uch improvements were duly issued to him by
Ibe Commissioner of Patents, as is therein fully
and correctly set forth and described.

Those improvements, as Is alleged in the
declaration, consist in a mode cf preparing the
rubber for manufacturing purposes, and of re-
-ducing it to a pasty state, without the use of
' the spirits of turpentine or other solvents, and
of applying the same to cloths, and for other
purposes, by the use of heated rollers and other
means, as set forth in the letters patent, saving
thereby, as is alleged, a lar^ portion of the ex-
pense of reducing the onginal material to a
proper degree of softness, and of fitting and
preparing it for the various uses to which it
mav be applied.

On application subsequently made to the
O>mmis8ioner of Patents, in due form of law,
by the original inventor, the patent Was ex-
tended for the further term of seven years,
from the 81st day of August, 1850; and the

Slaintift alleges that the patentee, on the 1st
ay of July, 1853, transferred, assigned and
-conveyed to him all his title to the inveption
and to the patent for the extended term.

By virtue of that deed of transfer, it is claimed
in tne declaration that the plaintiff acquired the
right to demand and recover the damages for
all infringements of the letters patent prior to
the date of the transfer, as well as for those
that liave been committed since that time ; and
accordingly the plaintiff alleges that the de-
fendants, on the 81st day of August. 1850,
fraudulently commenced the use of those im-
provements, without law or rieht, and so con-
tinued to use them to the day of tiie commence-
ment of this suit; averring, at the same time,
that the defendants have prepared large quan-
tities of the native rubber for manufacturing
purposes, without the use of spirits of turpen-
tine or other solvents, thereby making larse
gains, and greatly to the damage of the plaintiff.
Ab appears by the transcript, the action was
-enterea in the circuit court at the May Term,

See 2Si How.

U. 8., Book 16.

1854, but was continued from term to term un-
til the May Term, 1857, when the parties went
to trial upon the general issue.

From what is stated in the bill of exceptions,
it appears that one Charles Goodyear was the
owner of the original letters patent on the 26th
day of January, 1846, and that he continued to
own them for the residue of the term for which
they were originallv granted. On that day he
entered into an indenture with one Henry Ed-
wards, of the City of Boston, whereby, for cer-
tain considerations therein expressea, he sold
and conveyed to the said Henry Edwards, his
executors, administrators and assigns, the ex-
clusive right and license to make, use, and
vend, any and all articles appertaining to ma-
chines, or in the manufacture, construction,
and use of machines or machinerjr, of whatever
description, subject to certain limitations and
qualifications therein expressed.

By the terms of the instrument, it was un-
derstood that the right and license so conveyed
was to apply to any and all articles substituted
for leather, metal and other substances, in the
use or manufacture of macliines or machinery,
in so far as the grantor had any rights or privi-
leges in the same, by virtue of any invention or
improvement made, or which should thereafter
be made, by him in the manufacture of India
rubber or gum elastic goods, and in virtue of
any and all letters patent or patent rights of the
United States granted or belonging to him, or
which should thereafter be granted or belong to
him, for any and all inventions or improve-
ments in the manufacture of such goods in this
country, but excluding the right to make any
contract with the Government of the Unitea
States. In consideration of the premises, the
grantee paid the sum of $1,000, as appears by
the recital of the instrument, and agreed to pay
a certain tariff, at the rate of five cents per su-
perficial yard, or five-cents per pound for the
pure gum, according to the nature of the arti-
cle manufactured.

Reference is made in the declaration to the
letters patent, and to the deed of assignment
from the patentee to the plaintiff, but neither
of those instruments appears in the bill of ex-
ceptions or in any other part of the record.

At the trial of the cause, it was conceded and
agreed that the defendants, before the date of
the plaintiff's writ, used certain machinery,
constructed in conformity with the specification
annexed to the letters patent declared on, and
that the defendants, in using the machinery,
conformed to the directions contained in the
specification, and that the same was so used for
the preparation and application of India rubber
to the manufacture of the articles mentioned
and described in the indenture from Charles
GkKHl^ear to Henry Edwards, and that all the
machinery so used was constructed and in use
as aforesaid before and at the time the original
letters patent expired.

Upon this state of the case, according to the
bill of exceptions, the presiding justice ruled
and instructed the jury, that, under their title,
the defendants had the right to continue to use
the same machinery for the same purpo8es,and
in conformity with the directions contained in
the specification, after the expiration and re-
newal of the letters patent; and consequently,
that the plaintiff could not recover.

16 841

217-225

BUPBBMB COUBT OF THB UmITBD STATBS.

Dkc. Tkbm,

Under th« ruNng and instruction of the
court, the jury returned their verdict for the
defendants; and the plaintiff excepted to the
ruling, and his exceptions were duly allowed.

It u insisted by the counsel of the plaintiff,
that the instruction given to the jury was er-
roneous ; and that is the only question presented
for decision at the present time. In consider-
ing that question, our attention must neces-
sarily be confined to the evidence reported in
the bill of exceptions, as the only means of
ascertaining the precise state of facts on which
the instruction to the Jury was given. Whether
the report of the evidence, as set forth in the
bill of exceptions, may or may not be incom-
plete, or imperfectly stated, cannot be known
m an appellate court. Bills of exception,
when properly taken and duly allowed, become
a part of the record, and, as such, cannot be
contradicted.

By the admission of the parties in this case, it
appears that the defendants, before the date of
the plaintiff's writ, had used certain machin-
ery, ooBStructed in conformity with the speci-
fication of the plaintiff's patent. In the ab-
sence of any explanation or suggestion to the
contrary^ it must be inferred that the use of the
machinery so admitted was without the license
or consent of the plaintiff, and subsequent to
the period when he became the owner of the
patent for the extended term; and if so, the
admission was sufficient, under the pleadings,
to make out a prima fade case for the plaintiff.
To maintain the issue on their part, the de-
fendants, proved in effect, or it was admitted,
that all the machinery so used by them had
been constructed, and was in use, as aforesaid,
before and at the time the original letters pat-
ent expired, and that in using the machinery
they had conformed to the directions contained
in the specification ; and that the same was so
used for the purposes and in the manufacture
of the articles specified, and described in the
before mentioned indenture. As before stated,
they tiad previously proved, or it had been ad-
mitted, that the owner of the original term of
the patent had granted the exclusive right and
license to a thira party to use the invention for
the same purposes for which the defendants,
both under the original and extended term of
the patent, had used their machinery; but they
did not prove, and there is no evidence in the
case to show, any privity between themselves,
and that license, either by assignment or in any
other manner. They offered no proof tending
to show that their use of the machinery in
question, under either term of the patent, was
with the license, consent, or knowledge, of the
patentee, or of any other person who ever had
or claimed to have any power or authority
under him to convey the right. Provision is
made by the 18th section of the Act of Con-

fress, passed July 4th, 1836 (6 8tat. at L., p.
25), for the extension of patents beyond the
time of their limitation, on application there-
for in writing, by the patentee, to the (Com-
missioner of the Fatent Office, setting forth the
grounds for such extension. By the latter
clause of that section, the benefit of such re-
newal is expressly extended to assignees and
grantees of the right to use the thing patented
to the extent of their respective interests there-
in. Under that provision, it has been repeat-

842

edly held by this court, that a party who had
purchased a patented machine, and was using^
It during the ori^nalterm for which the patent
was granted, might continue to use the ma-
chine during the extended term. Bloomer v.
McQuewan et al., 14 How., 649; WiUon v.
BauMeau, 4 How., 646. That rule rests upon
the doctrine that the purchaser, in usdng the
machine under such circumstances, exercises
no rights created by the Act of Congress, nor
does he derive title to it by virtue of the fran-
chise or the exclusive privilege granted to the
patentee.

When the patented machine rightfully paasoa
to the hands of the purchaser from the patent-
ee, or from any other person by him authorised
to convey it, the machine is no loni^r within
the limits of the monopoly. According to the
decision of this court in the cases before men-
tioned, it then passes outside of the monopoly,
and is no longer under the peculiar protection
granted to patented rights. By a valid sale and
purchase, the patented machine becomes the
private individual property of the purchaser,
and is no longer protected by the laws of the
United States, but by the laws of the State in
which it is situated. Hence it is obvious, that
if a person legally acquires a title to that which
is the subject of letters patent, he may contin-
ue to use It until it is worn out. or he may re-
pair it or improve upon it as he pleases, in the
same manner as if dealing with property of
any other kind. Applying these principles to
the present case, as it is exhibited in the bill of
exceptions, there would be no difficulty in sus-
taining the instructions given to the jury, pro-
vided it appeared that the machinery used by
the defendants had been leeally purchased by
them of the patentee or his assigns during the
original term of the patent. But nothing ap-
pears in the evidence reported to warrant the
inference that they were either assignees or
grantees of the thing patented, within the
meaning of the Act of Congress or the decis-
ions of this court. All that the indenture of-
fered in evidence showed, was the nature and
extent that the defendants had used the inven-
tion, but, as is well contended by the counsel
for the plaintiff, it proved nothin? more. It
did not prove, or tend to prove, uiat the de-
fendants were rightftiily in the enjoyment of
the thing patented during the original term of
the patent, and having failed to establish any
right or license to use their machinery during-
the extended term by anv other proof, they
appear in the record as naked infringers.

Their right to continue to use the machinery
as against the plaintiff is predicated in the in-
struction upon the assumption they had a title
to it, and were rightfully m the use of it under
that title, before and at the time the original
letters patent expired. That assumed fact
finds no support in the evidence reported. It
is clearly error for the court, in its instruction
to the jury, to assume a material fact as proved^
of which there is no evidence in the case.
UnUed 8taie$ v. BrsitUng, 20 How., 255. And
when the finding of the jury accords with the
theory of the instruction, thus assumed without
evidence, the error is of a character to deserve
correction.

Another position is assumed by the counsel
of the plaintiff, which ought not to be paassed

OS U. 8.

1859.

SiNNOT T. Davenport.

227-244

over without a brief notice. They contend
that the invention of the plaintiflf, as described,
in the letters patent, is for a process, and not
for a machine or machineiy; and that the Act
of Congress, extending the benefit of renewals
to assignees and gran tees of the right to use the
thins patented, when properly construed, does
not include patents for a process, but should
be confined to patents for machines. That
question, if properly presented, would involve
the construction of the letters patent in this
case as well as the Act of Congress; but as the
patent Is not in the record, it is not possible to
determine it at the present time, and we only
advert to it that it may not appear to have es-
caped attention.

The decree of the Circuit Court is reccrsed,
with costs, and with directions to issue a new
venire.

Oited-«8 U. S. (1 Wall.). 851; 83 U. 8. (16 WaU.),
M7 ; 86 U. S. (18 Wall.), 416; 106 U. 8., T70: 2 Btes.,
flf7; 10 BIAS., 370; 6 Blatchf ., 91 : 1 Cliff., 856; 2 CUff.,
488; 8 Cliff., 276; 2 Dill., 889; Holmes, 41-44; 41 N.
r., »74.

JOHN C. SINNOT, SAMUEL WOLF and
JAMES SANDS, Plffs. in Er,,

60RHAM DAVENPORT kt al., Commis-
sioners of Pilotage of the Bay and Harbor of

MOBILB.

(See 8. C, 22 How.. 227-244.)

Act of State regulating coasting trade, invalid, as
inconsistent with Act of Congress,

Where the Act of a State im poaes a condition to the
privilege of carrying on the coasting trade vitbln
ner waters, namely: the filing of a statement in
writing, in the offioe of the Probate Judge, setting
forth : 1. The name of the vessel : 2. The name or
the owner, &o.,and provides that unless thin condi-
tion is complied with, the vessel is forbidden to
leave the port, under the penalty of $600 for each
offense, held, that there is a direct conflict be-
tween this Act of the State and the Act of Congress
regulating this trade.

This Act of the State is not merely the exercise
of a police power, which has not been surrendered
to the General (Government, but reserved to the
States.

When an Act of a State prescribes* a regulation
repugnant to and inconsistent with the regulation
of Congress, the state law must give way; and this,
without regard to the source of power whence the
State L^islature derived its enactment.

Such Act of the Legislature of the State of Ala-
bama is in conflict with the Constitution and law
of the United States and, therefore, void.

Argued Dec. 7, 1859. Bedded Bee. 27, 1869,

IN ERROR to the Supreme Court of the
State of Alabama.

This was an action in the nature of a libel
filed in the City Court of Mobile in the Slate of
Alabama, by the Commissioners of Pilotage for
Uie bay and harbor of Mobile, against the
steamboat William Bagaby, claiming the sum
of $4,000 for eight separate violations of the
Act of said State, entitled *' An Act to provide
for the registration of the names of steamboat
owners," approved Feb. 16, 1854.

In the answer and exceptions filed to this
libel, it is insisted that the General Assembly
of the State of Alabama had no constitutional
authority to require the owners of said boat to
comply with the requirements of said Statute,

See 22 How.

the said Act bein^ in conflict with the Con-
stitution of the United States.
» The case was tried on an agreed statement of
facts, from which it appears to be admitted
" that the said boat was regularly engaged in
navigation and commerce TOtween the port of
New Orleans in the State of Louisiana, on the
one hand, and the cities of Montgomery and
Wetumpka on the other; that the said boat
touched Mobile only for the purpose of better
carrying on the said business between New
Orleans and Montgomery and Wetumpka."

It is also stated in the answer, and admitted
to be true, that the said steamboat was built at
Pittsburg and that on her way to New Orleans,
to wit: at Cincinnati, she took on board freight
for New Orleans, for Mobile, and for Mont-
ffomery and Wetumpka: that previously to
leaving Pittsburg, she was regularly enrolled
and licensed in pursuance of the laws of the
United States; that while at New Orleans she
was regularly cleared, at the customhouse of
that port, for Montgomery and Wetumpka;
that having discharged her freight for Mobile
on arrival there, she proceeded to Montgomery ;
and that on her return thence to New Orleans,
she passed Mobile without stopping.

The Judge decreed in favor of libelants.

On appeal to the Supreme Court, the decree
of the judge of the city court was affirmed;
whereupon the appellant sued out this writ of
error.

A further statement of the case appears in
the opinion of the court.

Mr. P. Phillips, for plaintiffs in error:

The power to regulate commerce, conferred
bv the Constitution of the United States, iu-
cfudes the regulation of navigation, and was
one of the primary objects which led to its
adoption.

Gibbons v. Ogden, 9 Wheat., 67; Pennsyl-
vania V. Wheeling Bridge Co., 18 How.. 481.

The power to regulate navigation is the power
to prescribe rules, in conformity with which
navigation must be carried on. It extends to
the persons who conduct it, as well as to the
instrument used.

Oooley V. Port Wardens, PhU., 12 How., 816.

Is the power to regulate commerce, thus

f ranted to the Federal Government, exclusive?
n Gibbons v. Ogden, the court say: "It has
been concluded that as the word to regulate,
implies in its nature full power ovet the thing
to be regulated, it excludes necessarily the action
of all others that would perform the same opera-
tion on the same thing. That regulation is de-
signed for the entire result applying to those
parts which remain as they were as well as to
those which are altered. It produces a uniform
whole, which is as much disturbed and deranged
by changing what the regulating power deslgus
to leave untouched, as that on which it nas
operated. There is great force in the argu-
ment, and the court is not satisfied that it has
bcifiii refuted

In City ofN. T. V. MUn. 11 Pet., 180. which
involved the constitutionality of an Act requir-
ing captains of vessels arriving in the port of
that State to furnish a list of passengers, &c. ,
and which was sustained as a police regulation,
the court waived the examination of the ques-
tion whether the power to regulate commerce
be or be not exclusive to regulate the States. '

248

227-244

SuPRRicB Court of thb United Statjbs.

Dec. Tbkx .

In commenting on this case, Judge Wayne
Bays that the power to be exercised under state
Authority was after the passensers have landed.
That on the question as to the exclusiveness
of the power, the judges were divided, four
being in favor of the exclusiveness, and three
opi)med, and to this state of opinion was owing
the waiver above quoted.

7 How.. 481.

In the Passenger Cases, 7 How., 400, JxMtiee
McLean' said: The power to regulate com-
merce, foreign and between the .States, was
vested exclusively in Congress.

Juitiee Wayne: This power '' includes navi-

gation upon the high seas and in the bays,
arbors, lakes and navigable waters within
the United States, and any law by a State in
anv way affecting the right of navigation, or
subjectmg the exercise of the right to a condi-
tion, is contrary to the grant " (p. 414).

Jtuticeti Catron and Orier: ** That Congress
has regulated commerce and intercourse with
foreign nations and between the several States
by willing that it shall be free, and it is there-
fore not left to the direction of each State in
the Union, either to refuse a right of passage to
persons or property through her territory, or to
exact a duty for permission to exercise it " (p.
464).

In Cholmf v. Pcfrt Wardetu of PhU., the court
say: ** Although Con^^ress has legislated on
the' subject of pilotf^ge, its legislation manifests
an intention, with a single exception, not to
regulate this subject, but to leave its regulation
to the several States. To these precise questions,
which are all we are called on to decide, this
opinion must be understood to be confined. It
does not extend to the question what other sub-
jects under the commercial power are under the
exclusive control of Congress, or may be regu-
lated by the States in the absence of all con-
gressional legislation," &c.

12 How., 820.

But whether this power is exclusive or not,
when Congress, in pursuance of the power,pro-
ceeds to regulate the subject-matter, it neces-
sarily includes state interference with the same
subject-matter.

In Hbueton v. Moore, 5 Wheat., 1, the court
say: ** We are altogether incapable of compre-
hending how two distinct wills can at the same
time be exercised in relation to the same sub-
ject, to be effectual and at the same time com-
patible with one another."

In Prigg v. CommontoecUth of Penn., 16 Pet.,
617, the language of the court is: ''If Con-
gress have a constitutional power to regulate a
particular subject, and they do regulate it in a
particular manner and in a certain form, it
cannot be that the State Legislatures have a
right to interfere, and as it were by way of
complement to the legislation of Congress, to
prescribe additonaJ regulations, and what they
may deem auxiliary provisions for the same
purpose. In such a case the legislation of
Congress in what it does prescribe, manifestlv
indicates that it does not intend that there shall
be any further le^Iation to act upon the sub-
ject-matter. Its silence as to what it does not
do, is as expressive of what its intention is, as
the direct provisions made by it.

The license granted to the steamer to carry
on the coasting trade, is a grant of authority to

844

do whatever it purports to authorize. The States
cannot add to the regulations made by the
paramount authority, nor subtract anything
from. them.

OibbonsY. O^cfen, 9 Wheat. , 79: TheP^opl^v,
Brooka, 4 Den., 479.

The Act of the State is in du^t conflict with
these principles; for, in effect, it declares that
vessels engaged in foreign commerce or the
coasting trade, shall not navigate its waters
without complying with a condition not pre-
scribed by the Acts of Congress. If the Stat«
has power to inflict a penalty for the violation
of the condition, it is eaually authorized to use
force to prevent the violation.

It is not pretended that the Act is based on
the police power of the State; neither the pres-
ervation of the health, morals, nor the peace
of the community is affected by it. In the
langua^ of the Supreme Court of the State, its
object IS merely to '* advance the remedies for
torts or contracts done or made by the agents
of steamboats," &c.

While the power of the State over its legal
remedies is aamitted, this, like the taxing power
of the State, cannot be exercised so as to inter-
fere with the power delegated to Congress to
regulate commerce.

Brown v. State of Maryland, 12 Wheat, 419,
Half 8 V. Steanuhip Company, 17 How., 599;
lowboat Company v. Steamboat Company, Law
Reg., March, 1857, p. 284.

The Act of Congress of 29th of July, 1850,
provides the mode by which sales and transfers
shall be made, and what shall be the evidence
of ownership, while the Act of the State disre-
gards the moide thus provided, and declares a
different rule shall prevail in its courts.

Mes8rs. C. C. Clay, Jr., and J. T. T&jr-
lor, for appellees:

1. There are three cases on appeal from the
Supreme Court of Alabama against this defend-
ant, now pending. The same question arises
alike in all. See the cases reported in 28 Ala. ,
185. The only question to be determined by
this court, is whether the Act of the Legislat-
ure of the State of Alabama is in violation of
the Constitution of the United States.

The object sought and the evil intended to
be cured by the Act, is clearly indicated on
its face. The narrow and shallow channels
in the bay and interior rivers of Alabama,
required the aid of legislative protection.
Navigation would be imp<^ed by the sinking
of wrecks, discharged ballast, &c., by careless,
negligent and irresponsible seamen. On the
narrow nvers particularly, competition, strife,
explosions and collisions were of frequent oc-
currence, against all which the Legislature
found it necessary to provide for the safety of
navigation, and the protection of the life, prop-
erty and rights of all persons trading or navi-
gating the waters. But the whole of these
police regulations were rendered inefficient
and irresponsible, employees rendered more
reckless, from the fact that the responsibility
could not be fixed on the owner and real wrong-
doer.

To remedy this the Act referred to was
passed. The Act does not in any way prohibit ,
obstruct or interfere with free and uncon-
trolled navigation, and a compliance with it
would not injure, but would encourage, both

68 U. S.

lt»9.

81NNOT V, Davenport.

327-244

domoBtic and foreign trade and commerce.

Neither is the law partial ; it acts alike on all,
and is for the benefit and protection of all.

The Act. therefore, being for the purpose of
carrying out and tendering effectual the undis-
puted and police regulations of the State, is it-
self of the same police character admitted by
undisputed authority to be within the power of
tbfi states.

The coasting license authorizes the nayigation
of the waters, and the carrying on of trade and
commerce within the States, but it does not
pretend to authorize a disregard of the police
laws passed by the States for the observance of
its own citizens. All laws for the protection
of life, health and property, inspection laws,
and laws to prevent strife and confusion in
bays, harbors and rivers, and to secure the
rights of vessels navigating the waters, are of
this kind.

18 Ala., 185; 11 Pet., 102; 4 Sand., 492; 12
How., 299; 7 Ired., 821; 16 B. Mon., 699; 1
Park. C. R., 659, 588; 18 Miss., 288; 4 Rich..
286; 14 Tex.. 168; 5 Tex., 426; 81 Me., 860;
18 Conn.. 560; 82 Me., 888; 4 Oa.. 26; 12
Conn.. 7; 7 Shep., 858; 2 Spear, 769; 2 Pet.,
251: 14 How., 574.

The Legislature of New York passed ** An
Act reouirinj; the master of every vessel arriv-
ing at New York f rom^a foreign port, or any
port of any other of the States, under cer-
tain penalties, to make a report in writing con-
taining the names, &c., of all passengers. The
ship in question landed passengers, and failed
and refused to file a report as required. A
suit was brought for the penalty. The defense
was that the law was unconstitutional; but it
was held good, by the Supreme Court of the
United States, as a police law. The case at bar
and that above cited, differ in this only —
one requires the names of passengers to be re-
corded, and the other requires the owners'
names to be recorded. The law of New
York was for tl^e protection of her citizens
only. The Act of Alabama was for the mutual
benefit of all persons and vessels.

4 Pet., J 02; 2 Paine, C. C, 429.

The State of Pennsylvania passed an Act
requiring all vessels to take a pilot, and on re-
f usaI, to pay to the master woraenof the pilots,
for the use of the society, &c., one half the
regular amount of pilotage. The Supreme
Court of Pennsylvania and the Supreme Court
of the United btates held, that this law was not
void or inconsistent with the Constitution or
any of the Acts of Congress

Cooley V. ^[frt Wardens, etc., 12 How., 299.

In the case of Veassie v. Moor, 14 How., 574,
this court say : " The design and object of the
clause of the Constitution under consideration
was, to establish a perfect equality between the
States, and to prevent unjust discrimination,
&c., and in accordance therewith have been the
expositions of this court in the decisions quoted
by counsel, &c.

In nearly all the cases above referred to, it is
held that a State has the right to make improve-
ments in its navigable waters, in order to make
the common right more beneficial to all. and to
pass laws for mutual proteclion.

See. also, U Conn., 500; 4 Rich., 286; 44
Tex., 157; 4 Sand., 462, and the numerous
esses there cited.

See 22 How.

2. If it should be considered that the Act of
Alabama is not a police regulation,' still, as it is
necessaiT for the protection and security of the
rights of all persons trading and navigating the
rivers, and is not in direct conflict with any
Act of Congress, it will be held good. It was
never intended by Congress, in passing general
laws for all the waters of the Union, to pro-
hibit the States from passing such other regu-
lations not in conflict, that might be found
necessary for safe and peaceful navigation on
particular streams or localities. In 14 How ,
296, it is said that " The grant of commercial
power to Congress does not forbid the States
irom passing laws, not in conflict with the
Acts of Congress. The power to regulate
commerce includes various subjects, upon
some of which there should be uniform rule,
and upon others different rules in different
localities

In the case 4 Sand., the court, after comment-
ing on the authorities of the Supreme Court of
the United States, says: *'If any principle
may be deduced from the decisions and
opinions of the judges of that high tribunal, it
is this: that each State may pass such laws af-
fecting commerce to operate within its own
limits, not in conflict with the provisions of the
Constitution of the United States or Acts of
Congress, as are necessary for the preservation
of the life, the health, thd personal rights and
property of its citizens, and of those enjoying its
protection.'* A great majority of the cases al-
ready cited hold the same. The object of the
Act of Alabama, was to afford all passengers
and persons trading or navigating the waters,
some certain evidence bv whicn to sustain
their rights or redress their wrongs, and a
means of getting at the secret wrong-doers; to
give fair play and readv redress to ful. Upon
examining this Act with the 'Acts of Congress,
it will be seen that it does not conflict witn the
Acts of Congress; it is rather in addition or in
aid of the objects of those laws.

8. There are three classes of these cases ap-
pealed from the Supreme Court of Alabama,
one of which was engf^^ed in running from
Mobile to Montgomery, one in towing vessels
in and about the port of Mobile, ana one be-
tween New Orleans and Montgomery. As to the
first two boats mentioned, they are domestic
vessels entirely, running on our own waters
and within our limits, and so regularly occu-
pied and engaged, and not between the ports
of different States. The mere fact, therefore,
that thev happened to have a coasting license
on board.cannot help them. The Supreme Court
of the United States, in 14 How., 578, says:
** These categories are, 1st. Commerce with for-
eign nations; 2d. Commerce among the several
states; 8d. Commerce with the Indian tribes.
Taking the term ' commerce ' in its broadest
acceptation, supposing it to embrace not merel v
traflic but the means and vehicles by which it is
prosecuted, can it properly be made to include
objects and purposes such as those contem-
plated by the law under review ? Commerce
with foreign nations must signify commerce
which, in some sense, is necessarily connected
with those nations; transactions which either
immediately or at some sta^e of their progress,
must be extraterritorial. It can never be ap-
plied to transactions wholly internal,*' &c.

246

227-244

SUFBBICB COUBT OF THB UNTTBD StATBA.

Dbc. Tbrx,

Mr, Justice Nelson deliyered the opinion of
the court:

This is a writ of error to the Supreme Court
of the State of Alabama.

The suit was brought by the plaintiffs below,
commissioners of pilotage of the harbor of
Mobile, against the steamboat Bagaby, of
which Sinnot, the defendant, was master, to
recover certain penalties for a vidation of the
law of the State of Alabama, passed Febru-
ary 15, 1854. entitled "An Act to Provide for
the Registration of the Names of Steamboat
Owners."

The 1st section of the Act provides, that it
shall be the duty of the owners of steamboats
navigating the waters of the State, before such
boat shall leave the port of Mobile, to file in
the office of the probate Judge a statement in
writing, setting forth the name of the steam-
boat and of the owner or owners, his or their
place or places of residence, and their interest
therein, which statement shall be signed and
sworn to by the owners, or their agent or at-
torney, and which statement shall be recorded
by the said judge of probate; and. also, incase
of a sale of said boat, it is made the duty of
the vendee to file a statement of the change of
ownership, his place of residence, and the in-
terest transferred, which statement shall be
signed by the vendor and vendee, his or their
agent or attorney, and recorded in the office of
the aforesaid judge.

The 2d section provides, that if any person
or persons, being owner or owners of any
steamboat, shall run, or permit the same to be
run or navigated, on any of the waters of the
State, without having first filed the statement
as provided by the <^ Act, he or they shall for-
feit the sum of $500, to be recovered in the
name of the Commissioners of Pilotage of the
Bay of Mobile, either by a suit against the
owners or by attachment against the boat, the
one half to Uie use of the Commissioners, and
the other half to the person or persons who
shall first inform said Commissioners.

The steamboat Bagaby in question was
seized and detained under this Act until dis-
charged, on a bond being ^iven to pay and sat-
isfy any judgment that might be rendered in
the suit. A judgment was subsequently ren-
dered against the vessel in the City Court of
Mobile, for the penalty of $500, with costs,
which, on an appeal to the Supreme Court, was
affirmed.

The material facts in the case are, that the
steamboat was engaged in navigation and com-
merce between the City of New Orleans, in the
State of Louisiana, and the cities of Montgom-
ery and Wetumpka, in the State of Alabama,
and that she touched at the City of Mobile
only in the course of her navigation and trade
between the ports and places above mentioned;
that she was an American vessel, built at Pitts-
burg, in the State of Pennsylvania, and was
duly enrolled and licensed in pursuance of the
laws of the United States, and had been regu-
larly cleared at the port of New Orleans for the
ports of Montgomery and Wetumpka, whither
she was destined at the time of the seizure and
detention under the Act in question.

The plaintiffs in error, the master, and stip-
ulators in the court below, insist that the judg-
ment rendered against them is erroneous, upon

240

the ground that the Statute of the Le^slature
of the State of Alabama is unconstitutional
and void, it being in conflict with that claute
in the Constitution which confers upon Con-
gress the power '* to regulate commerce with
foreign nations and among the several States,"
and the Acts of Congress passed in pursuance
thereof. The Act of Congress relied on is that
of the 18th Feb., 1798. 1 Stat, at L., »05. pro-
viding for the enrollment and license of vessels
engaged in the coasting trade. The force and
effect of this Act was examined in the case of
Gibbons v. Ogden, 9 Wheat., pp. 210, 214, and
it was there held that vessels enrolled and li>
censed in pursuance of it had conferred upon
them as full and complete authority to carry
on this trade as was in the power of Congress
to confer.

The Chirf Justice says (speaking of the 1st
sectiony*. ** This section seems to the court to
contain a positive enactment that the vessels it
describes shall be entitled to the privileges of
ships or vessels employed In the coasting trade.
These privileges cannot be separated from the
trade, and cannot be enjoyed unless the trade
may be prosecuted. '* Again ; the court say, to
construe these words otherwise than as en-
thling the ships or vessels described tocarr^ on
the coasting trade would be, we think. *to disre-
gard the apparent intent of the Act. And
again ; speaking of the license provided for in
the 4th section, the word ''license" means per-
mission or authority; and a license to do any
particular thing is a permission or authority to
do that thing, and if granted by a person hav-
ing power to grant it, transfera to the grantee
the right to do whatever it purports to author-
ize. It certainly transfers to him all the right
which the grantor can transfer, to do what is
within the terms of the license.

The license is general in its terms, aocor<l-
inff to the form given in the Act of Congress
" License is hereby granted for the said steam-
boat (naming her) to be employed in carrying
on the coasting trade for one year from the
date hereof, and no longer."

In the case already referred to, it was denied
in the argument that these words authorized a
voyage from New Jersey to New York. The
court observed, in answer to this objection: It
is true that no ports are specified; but it is
equally true that the words are perfectly intel-
ligible, and do confer such authority as un-
questionably as if the ports had been men-
tioned. The coasting trade is a term well un-
derstood. The law has defined it, and all know
its meaning perfectly. The Act describes with
great minuteness the various operations of
vessels engaged in it; and it cannot, we think,
be doubted that a voyage from New Jersey to
New York is one of those operations.

On looking into the Act of Congress regu-
lating the coasting trade, it will be found that
many conditions are to be complied with by the
owners of vessels, before the granting of the
enrollment or license. 1. The vessel must pos-
sess the same qualifications, and the same
requisites must be complied with, as are made
necessary to the registering of ships or vessels
engaged in the foreign trade by the Act of De-
cember, 31, 1792(1 Stat, at L, 287). These
conditions are many and important, as will be
seen by a reference to the Act. 2. A bond

«3 U. 8.

I^f59.

SiNNOT V. DaVENPOBT.

227-244

must be given by the husband, or managing
owner, and the master, with sureties to the sat-
isfaction of the collector, conditioned that such
vessel shall not be employed in any trade by
which the United States shall be defrauded of
its revenues; and also the master must make
oath that he is a citizen of the United States;
that the license shall not be used for any other
vessel or any other employment than that for
which it is granted, or in any trade or business
in fraud of the public revenues, as a condition
to the granting of the license. These are the
^ards and restraints, and the only guards and
restraints which Coneress has seen fit to annex
to the privileges of snips and vessels engaged
in the coasting trade, and upon a compliance
with which, as we have seen, as full and com-
plete authority is conferred by the license to
carry on the trade as Congress is capable of
conferring.

Now, the Act of the Legislature of the State
of Alabama imposes another and an additional
condition to the privilege of carrying on this
trade within her waters, namely: the tiling of a
statement in writing, in the office of the Pro-
bate Judge of Mobile County, setting forth: 1.
The name of the vessel; 2. The name of the
owner or owners; 3 His or their place or places
of residence; and 4. The interest each has in
the vessel. Which statement must be sworn
lo by the party, or his agent or attorney. And
the like statement, mutatis mutandis, is re-
quired to be made each time a change of own-
ers of the vessel takes place. Unless this con-
dition of navigation and trade within the wa-
ters of Alabama is complied with, the vessel is
forbidden to leave the port of Mobile, under
the penalty of $500 for each offense.

If the interpretation of the court, as to the
force and effect of the privileges afforded to the
vessel by the enrollment and license in the case
of Qiboons V. Ogden are to be maintained, it
can require no argument to show a direct con-
flict between this Act of the State and the Act
of Congress reglating this trade. Certainly, if
this state law can be upheld, the full enjoy-
ment of the right to carry on the coasting
trade, as heretofore adjudged by this court,
under the enrollment and license, is denied to
the vessel in question.

If anything further could be necessary, we
might refer to the enrollment prescribed by the
Act of Congress, by which it is made the duty
of the owner to furnish, under oath, to the
collectors, all the information required by this
atate law, and v^hich is incorporated in the
body of the enrollment. Congress, therefore,
has legislated on the very subject which the
State Act has undertaken to regulate, and has
limited its regulation in the matter to a regis-
try at the home port.

It has been argued, however, that this Act of
the State is but the exercise of a police power,
which power has not been surrendered to the
General Government, but reserved to the States;
and hence, even if the law should be found in
conflict with the Act of Congress, it must still
be regarded as a valid law, and as excepted
out of and from the commercial power.

This position is not a new one; it has often
been presented to this court, and in every in-
stance the same answer givdn to it. It was
atrongly pressed in the New York case of Oib-

See 22 How.

bons V. Ogden. The court, in answer to it. ob-
served: ''It has been contended, that if a
law passed by a State, in the exercise of its ac-
knowledged sovereignty, comesin conflict with
a law passed by Congress in pursuance of the
Constitution, they affect the subject and each
other, like equal opposing forces." But, the
court say, the framers of the Constitution fore-
saw this state of things, and provided for it,
by declaring the supremacy not only of itself,
but of the laws maoe in pursuance of it. The
nullity of any Act inconsistent with the Consti-
tution, is produced by the declaration that the
Constitution is the supreme law. The appropri-
ate application of that part of the clause which
confers the same supremacy on laws and treaties,
is to such Acts of the State Legislatures as to
do not transcend their powers, but, though
enacted in the execution of acknowledged
state powers, interfere with, or are contrary
to, the laws of Congress, made in pursuance of
the Constitution, or some treaty made under
the authority of the United States. In every
such case, the Act of Congress or treaty is su-
preme; and the law of the State, though en-
acted in the exercise of powers not controverted,
must yield to it. The same doctrine was as-
serted in the case of Brown v. The Slate of Mary-
land, 12. Wheat., pages 449, 449, and in nu-
merous other cases. 5 How., pp. 578, 574, 579,
581; 2 Pet., 251, 252; 4 Wheat., pp 405, 406,
436.

We agree, that in the application of this
principle of supremacy of an Act of Con-
gress in a case where the state law is but an
exercise of a reserved power, the repugnance
or conflict should be direct and positive, so that
the two Acts could not be reconciled or consist-
ently stand together; and also that the Act of
Congress should have been passed in the exer-
cise of a clear power under the Constitution,
such as that in question.

The whole commercial marine of the country
is placed by the Constitution under the regula-
tion of Congress, and all laws passed by that
body in the regulation of navigation and trade,
whether foreign or coastwise, is therefore but
the exercise of an undisputed power. When,
therefore, an Act of the Legislature of a State
prescribes a regulation of the subject repug-
nant to and inconsistent with the regulation of
Congress, the state law mu^t give way; and
this, without regard to the source of power
whence the State Legislature derived its enact-
ment.

This paramount authority of the Act of
Congress is not only conferred by the Constitu-
tion itself, but is the logical result of the pow-
er over the subject conferred upon that body
by the States. They surrendered this power to
the General Government; and to the extent of
the fair excercise of it by Congress, the Act
must be supreme.

The power of Congress, however, over the
subject does not extend further than the regu-
lation of commerce with foreign nations and
among the several States* Beyond these limits
the States have not surrendered their power
over the subject, and may exercise it independ-
ently of any control or interference of the Gen-
eral Gk)vernment; and there has been much
controversy, and probably will continue to be,
both by the bench and the bar, in fixing the

247

241-246

bUFKlfiMlfi (JOUKT OF THK UmITKU bTATJfili.

Dkc. Tkbm^

true boundary line between the power of Con-
gress under the commercial grant and the
power reserved to the States. But in all these
discussions, or nearly all of them, it has been
admitted, that if the Act of Conirrees fell clear-
ly within the power conferred upon that body
by the Constitution, there was an end of the
controversy. The law of Congress was su
preme.

These questions have arisen under the quar-
antine and health laws of the Htates— laws im-
posing a tax upon imports and passengers, ad-
mitted to have been passed under the police
power of the States, and which had not been
surrendered to the General €k>vemment. The
laws of the States have been upheld by the
court, except in cases where they were in con-
flict, or were adjudged by the court to be in
conflict, with the Act of Congress.

Upon the whole, after the maturest consider-
ation the court have been able to give to the
case, we are constrained to hold, that the Act
of Legislature of the State is in conflict with
the Constitution and law of the United States
and, therefore, void.

TheJudgmerU of the court below is reversed.

Cited- TO U. S. (12 WaU.), 214; 1 Cliff., 478; 93 U.
S., 102 : 05 U. S., 499, 606, 507 : 99 U. 8., 288: 1 Cliff.,
473 ; 2 Huirhes, 490 ; 34 Cal., 496 ; 44 lod., 195 ; 70 Ul.,

lis.

PHO^EAS O. FOSTER, ROGER A.
HEIRNE AND GEORGE J. SLAKES-
LEE, Owners of the Steamboat Swan,
Piff8, inEr.,

GORHAM DAVENPORT bt al.. Commis-
sioners of Pilotage of the Bay and Harbor of
Mobile, UbU,

(See S. C, 22 How., 244-246.)
Sinrhot a. Davenport, ante, p. £4S, affirmed.

The case Is, in all respects, like the one of Sinnot
V. Davenport, ante.

This steamboat was employed in aid of vessels
eoffaffed in the f oreiflrn or coastwise trade, either in
the delivery of their cargoes in or towingr the ves-
sels to port, which was but the prolon^tion of
their voyaire.

The case, therefore, is not distmrulshable in
principle from the one above referred to.

Argudd Dec. 7, 1859. Decided Dee. S7, 1859.

IN ERROR to the Supreme Court of the State
of Alabama. •

This was an action in the nature of a libel
filed in the City Court of Mobile, in the State
of Alabama, by the Commissioners of Pilotage,
for the bay and harbor of Mobile, against the
Steamboat Swan,claiming $500 for violation of
an Act entitled, ** An Act to provide for the
registration of steamboats owner," approved
Feb. 15, 1854.

The case having been submitted to the court
on an agreed statement of facts, a decree was
entered in favor of the libelants for the said
amount, with costs.

248

On appeal to the Supreme Court, this decree
was affirmed ; whereupon the defendants sued
out this writ of error.

A further statement of the case appears in
the opinion of the court.

See, also, the preceding case.

Mr. P. Phillips, for plaintiffs in error.

Messrs. C. C. Clay, Jr., and J. T. Tay-
lor, for appellees.

For the argument, see argument of same
counsel in the preceding cause.

Mr. Justice Nelson delivered the opinion of
the court:

This is a writ of error to the Supreme Court
of the State of Alabama.

The case is, in all respects, like the one just
decided except it is insisted that the steamboat
was emploved as a lighter and towboat upon
waters witLin the State of Alabama, and there-
fore engaged exclusively in the domestic trade
and commerce of the State.

According to the admitted state of facts, this
boat was engaged in lightering eoods from and
to vessels anchored in Uie lower Bay of Mobile,
and the wharves of the city, and in stowing vee-
sele anchored there to and from the city, and, in
some instances, towing the same bayond the
outer bar of the day, and into the Gulf to the
distance of several miles. This boat waa duly
enrolled and licensed to carry on the coasting-
trade at the time she was engaged in thia
business, and of the seizure under the state
law.

It also appears from the answer, and which
facts are admitted to be true, that Uie port of
Mobile is resorted to and frequented by ahipa
and vessels, of different size in tonnase, en-
gaged in the trade and commerce of the United
States with foreign nations and among the sev-
eral States; that the vessels of small size and
tonnage are accustomed to come up to the
wharves of the city and discharge their cargo,
but that large vessels frequenting said port can-
not come up, on account of the shallowness of
the waters in some parts of the bay, and are
compelled to anchor at the lower bay, and to*
discharge and receive their car^o by lighters;
and that the steamboat of claimants was en-
gaged in lightering goods to and from said
vessels, and in towing vessels to and from the
lower bay and the wharves of the city.

It is quite apparent, from the facts admitted
in the case, that this steamboat was employed
in aid of vessels engaged in the foreign or coast-
wise trnde and commerce of the United States,
either in the delivery of their cargoes, or in
towing the vessels themselves to the port of
Mobile. The character of the navigation and
business in which it was employed cannot be
distinguished from that in which the vessels it
towed or unloaded were engaged. The light-
ering or towing was but the prolongation of the
voyage of the vessels assisted to their port of
destination. The case, therefore, is not dis-
tinguishable in principle from Uie one above
referred to.

Judgment of the court below reversed.

atod>96 U. S., 506, 609 ; di Cal., 496.

68 U. S.

1859.

Ward v. Thompson.

a3(K-Sd4

EBER B. WARD, Survivor of Himself and
Sam'l Ward, Deceased, Owner of the
Steamboat Detroit, Appt,

CHARLES THOMPSON.

(See 8. C, 22 How., 880-334.)

Admiralty has no jurisdiction of contract of
partnership in a ship — what is sn^ih partner-
ship,

A court of admiralty will not assume Juris-
diction of a contract of partnership in theearnin^rs
of a ship.

If the party desires an accountf ms remedy Is in
a court of chanceir.

If bis complaint be for a breach of some inde-
pendent covenant, he should seek his remedy in a
oourt of common law.

Where the parties have Joined together to carry
on a certain adventure or trade, for their mutual
profit—one oontrlbutinfr the vessel, the other his
skill, lalx>r and experience, &c., and there is a
communion of profits, on a fixed ratio. It is a part-
nership.

Of such a contract, a oourt of admiralty has no
Jurisdiction.

£hihmitted Dec. IS, 1859, Decided Dee. 27, 1859.

APPEAL from the Circuit Court of the United
States for the District of Michigan.

The libel in this case was filed in the District
Court of the United States for the District of
Michigan, by the appellant, against Charles
Thompson, the appellee, for breach of a cer-
tain contract.

The libel alleged ' ' that in the month of June.
1 852, the libelant and Samuel Ward chartered
the steamboat Detroit to' said Thompson for
two ^ears as follows: This libelant was to
furnish said steamboat to said Thompson in
good order and condition, which he compiled
with in all respects. The said Thompson was
to run said boat between Penetanguishene and
other ports on the Georgian Bay and the Sault
Ste. Marie, as a passenger and freight boat.
That he was to employ good, careful and com-
petent officers and men on board of said boat,
except the clerk, who was to be employed bv
this libelant. That the clerk was to receive all
the earnings of said boat; and after paying her

expenses, to remit the first net $6,000, to this
libelant, and one half of the further net pro-
ceeds."

These allegations formed the substance of
the contract in question.

A preliminary motion bv the respondent,
Thom])son, to dismiss the libel, was made and
heard on the ground that the contract was one
of partnership. The court held otherwise.
The cause was then heard on the merits, and
the court dismissed the libel on the ground that
Ward had himself violated the contract by in-
stigating a seizure by the United States Col-
lector, and by not restoring the boat afterwards
to Thompson. The libelant thereupon appealed
to the circuit court, which court affirmed the
decree below, but on a different ground, to wit :
on the ground that the contract was one of
partnership, and the court had no jurisdiction.

From this decree Ward has appealed to this
court.

A further statement of the case appears in
the opinion of the court.

Messrs. John S. Newberry and A. Rus-
sell* for plaintiff in error:

We submit that the district court has juris-
diction over contracts relating to vessels en-
gaged in foreign trade upon the lakes, inde-
pendently of the Act of Feb. 26, 1846, by virt-
ue of the Federal Constitution and the Judi-
ciary Act of Sept. 34, 1789. In other words, the
admiralty jurisdiction embraced the lakes and
other navigable waters, and was not confined
to tide waters. This doctrine is fully stated
in the case of The Genesee C?Uef 12 How.^
448, and it is, we submit, the correct doctrine.

2 Conk. Adm., p. 16.

If this be so, then the Act of 1845 is merely
declaratory of the previous law, so far as it
goes.

It cannot be considered a restraining Act, so
far as to exclude jurisdiction not embraced
within its terms; for it purports, and was evi-
dently intended, to be an enlarging Act.

The contract in question was a species of
charter-party, in which the owner parts with
the entire possession to the charterer.

Drinkwater v. The Spartan,! Ware, 149, 156;

Note.— Partnen<^ip ; when a community of profits
creates a partnership ; exceptions.

To constitute a partnership there must be a com-
munity of interests, a participation in profit and
loss. Felichy v. Hamilton, i wash., 491; Coope v.
Eyre, 1 H. BK, 37 ; Forbes, Inst, of Scot. Law, part
2, b. 8, sec. 3, p. 184; Domat. Civ. Law, Vol. I., p.
85 ; 8 Kent's Com., p. 23 ; Gow on Part., p. 1 ; Green
V. Beesley, 2 Bing. N. C, 108; Bond v. Pittard, 8
Mees. A W., 857.

A participation in the profits is sufficient to oon>
stitute a i>artoership, because an agreement to
share profits, alone, cannot prevent the lepral conse-
quences of also sharinjT losses for the benefit of
creditors. Participation in profit will constitute a
partnership as to third persons at least. Ex parte
Lan^ale, l8 Yes., 801 ; Bisset on Part., p. 6 ; Waugh
V. Oarver, 2 H. Bl., 235 ; Cheap v. Cramond, 4 Barn.
k A., 063: Guthwaite v. Duckworth, 12 East, 421;
Wiffhtman v. Townroe, 1 Maule & S., 412; Gilpin v.
Enderby, 5 Barn. & A., 951; 8. C, 1 Dow. & Ry.,
570; Blozon v. Pell, 2 W. Bl., 909; Grace v. Smith,
2iW. Bl., 908; Young v.A xwell, 2 H. Bl., 242 ; Ex paHe
Wheeler, Buck, 48 ; Geddes v. Wallace, 2 Bligh, 270 ;
Kichardson v. Debuys, Itf^Mart., 127.

A dormant partner is liable because he takes part
of the profile, which is part of the fund the credit-
or looks to, to satisfy his demand. Freel v. The
Oampt)ells, Cooke, 8.

As towards third persons a partnership may arise
by mere operation of law, against the intention of

See 22 How.

the parties thereto; but the actual intention or
agreement of the parties will alone constitute a
partnership as between themselves. Hazard v.
Hazard, 1 Stor}% C. C, 371, and cases cited. Gill v.
Kuhn,6 S.& R.,883.

The law will not allow one who participates in
profits to withdraw from the obligations of a part>
ner. Hcsketh v. Blanchard, 4 East, 144 ; Perry v.
Hone, 2 Car. & P., 401 ; Meyer v. Sharpe, 5 Taunt.,
74 ; Peacock v. Peacock, 2 Camp., 45 ; 8. C, 16 Ves.^
66 : Miller v. Hughes, 1 Mass., 54 ; Smith v. Watson^
2 Barn. & C, 401 ; S. C.. 3 Dow. & Ry., 751.

The general rule that actual participation in
profits creates a partnehshlo as towards third per-
sons, has no application to a case of mere service
or special agency, where the employee has no pow-
er in the firm and no such interest in the profits as
will enable him to go into a court of equity to en-
force a lien for the same, or to compel an account,
Berthold v. Goldsmith, 65 U. S.« post.

Share of the profits as interest on money loaned^
or for services, does not constitute a partnership.
Pleasants v. Fauts, 22 Wall., 116; In re Francis, 2
Sawy., 286 ; S. C, 7 Bank. Reg., 359 ; Bigelow v.
Elliot, 1 Cliff., 24 ; Moore y. Walt., 9 Bank. Reg.^
408 ; Jnrc Ward, 25 Int. Itev. Rec. 280 ; 8. C, 8 Rep.,
186 ; .In re Blumenthal, 18 Bank. Reg., 555.

An agreement between two persons that one is to
devote nis time to the manufacture of goods and
receive for his services one half of the nrofitsfrom
sales of one of the articles so manufactured, does

249

830-834

Supreme Court of the United States.

Dbg. Tbbh»

The Phebe, l*Ware, 263; Marcadier v. Chega- '
peaks Itis, Co., 8 Cranch, 89, 49; Clarksan v.
Edes, 4 Cow., 470, 476.

The contract was maritime in its nature, and
to be performed wholly on the sea.

From the nature of the case, no maritime
Hen exists; nor is any claimed here. Our only
remedy is in personam.

The action is between a citizen and an alien,
so that the federal courts have Jurisdiction.

Messrs. QeorgB E. Hand and Oeor^e
V. N. Lothropt for appellee:

The district court had no jurisdiction in
admiralty, of this cause.

The district court has no general admiralty
Jurisdiction. It possesses jurisdiction solely by
the Act of Congress of Feb. 26, 1845. This
objection was not taken below. Before the de-
cisions of this court at the last term, an impres-
sion prevailed that the Act of Congress was to
be construed with greater latitude. But those
decisions have indicated the limitations.

AUen y. Netoberry, 62 U. S, (21 How.), 244.

And it is never too late to interpose this
objection. •

CtiOer y. Bae, 7 How., 729.

Wo also insist that the Wards and Thomp-
son were partners under the agreement of June
10, 1852; and that this court has no jurisdic-
tion of partnership matters.

We insist that the libelant is estopped to
deny the partnership. It was, before this libel
was filed, res acfjudwata.

The very question had arisen in a civil action
brought by Thompson against the Wards in
the Queen s Bench of Canada. The point was
expressly raised by the Wards, ruled in their
favor, and they had the benefit of it.

See Sto. Confl. Laws, sees. 604, 609; 1 Oreenl.
Ev., sees. 22, 207.

As to whether the contract in question was a
partnership, see Coll. on Part., 2, 18; CTiampion
v. Bostwick, 18 Wend., 188.

The last American edition of Coll. Part,
brings together nearly the whole learning of
the Amencan and English law on this subject.

Book 1, ch. 1, sec. 1.

But as we understand it, this point has been
passed on in this court in late decisions.

VandeimUfr v. MUls, 60 U. S. (19 How.). 82;
Grant v. Pailion, 61 U. S. (20 How.), 162.

Mr. Justice Giier delivered the opinion of
the court:

The articles of agreement containing the con-
tract, which is the subject-matter of this suit,
are denominated in the libel a charter- party of
the steamboat Detroit to respondent. The an-
swer denies that he had chartered the vessel,
and alleges that the writing declared on is a
contract of partnership.and not a charter-party.
The circuit court agreed with the respondent
as to the construction oT the contract, and con-
sequently dismissed the bill.

A court of admiralty takes cognizance of
certain questions between part owners, as to
the possession and employment of the ship, but
will not assume jurisdiction in matters of ac-
count between them. Th£ Orleans v. PhabtLs,
11 Pet., 175. It is not disputed that a con-
tract of partnership in the eaminss of a ship
comes within the same category. If the party
desires an account, his remedy is in a court of
chancery. If his complaint be for a breach of
some independent covenant, he (diould seek his
remedy in a court of common law.

A charter-party is defined to be " a contract
by which a ship, or some principal part thereof,
is let . to a merchant, for the conveyance of
goods on a determined voyage to one or more
places."

A contract of partnership is where parties
join together their money, goods, labor or
skill, for the purposes of trade or gain, and
where there is a community of profits.

The only characteristics of a charter-party to
be found in this contract are, that the subject
of it is a ship, and that libelants are owners.
There is no letting or hiring of the ship to the
respondent for a ^ven voyage, to be employed
by him for his own profit. On the contrary,
the Wards contributed a steamboat, to be put
into a line for freight and passengers, which
has also a contract for carrying the mail.
Thompson contributes the good will of an es-
tablished line, together with his care, skill and
experience. He is to have the general man-
agement of the business, and the selection of

not constitute a partnership, inter se. Hoore v.
Allison, 14 Week. Dig., 285.

Where R. advanced to M., a showman, S700, upon
the agreement that after the payment of all exuen-
ees R. was to receive back tho $700, and one half of
the net profits, held, that R. and M. were partners as
to third person, irrespective of any agreement to
the contrary between themselves. Haas v. Roat, 28
Hun, 882; 18 Hun, 526.

A person who has no interest in the business of a
Arm nor in the capital invested, save that he is to
receive a share of the profits for money loaned for
the l>enefitof the business, is not a partner, and is
not liable as such. Curry v. Fowler, 87 N. Y., 33 ; 8. C,
13 Week. Dig., 287, 41 Am. Rep., Afrg46N. Y.,«uper.
(14 J. & 8.), 105: Richardson v. Hughitt, 76 N. Y., 55;
8. C, 32 Am. Rep., 267 ; Eager v. Crawford, 76 N.
Y.,97.

The test of partnership is a community of profit,
a specific interest in the profits, as profits, in con-
tradistlnctton to n stipulated portion of the profits
as a compensation for services. Loomis v. Mar-
shall, 12 Conn., 89; Champion v. Bostwick, 18 Wend.,
175; Vanderburg v. Hull, 20 Wend., 70; Ez parte
Hamper, 17 Ves., 404 : Story on Part., p. 51 ; 3 Kent's
Com., 34: Burnett v. Snyder, 81 N. Y., 650.

An agreement between creditors of a particular
debtor to advance the moneys necessary to carry
on the bueiness of their debtor for their own profit,
they to contribute the funds, to purchase stock, in

250

equal proportions, and the profits and losses of tho
enterprise to be shared by them equally, it seems,
makes them partners in respect to that enterprist*.
Wills V. Simmons, 61 How. Pr., 48.

As to the community of profits constituting a
partnership or a mere rate of compensation, see,
also, Bisset on Part., pp. 0-32.

Where seamen take a share, by agreement vith
the ship owner, in the profits of a whale fishery, hy
way of compensation for their services^ or in ship-
ments to India, which is usual, the responsibility-
of partners has never been supposed to attach.
Dixon V. Cooper, 8 WiUes, 40 ; Benjamin v. Por>
teus, 2 H. Bl., 590; Wilkinson v. Frazier, 4 Esp., 182 ;
Mair V. Glennie, 4 Maule & 8., 240 : Wallace v. Gcd-
des, 1 Biigh, 270: Ex parte Rawllnson, 1 Rose, 89 : J5z
XHirte Watson, 19 Ves., 458 ; Barklie v. Scott^ 1 Hud.
& Bro., 83; Goode v. Harrison, 5 Barn. & Aid., 150:
Muzzey v. Whitney, 10 Johns., 226; Rice v. Austin,
17 Mass., 206; Cutler v. Windsor, 6 Pick., 335; Har-
den V. Taxcoft, 6 Oreenl., 76 ; Lowry v. Brooks* S
McCord, 421; Chase v. Barrett, 4 Paige, 148; Bond
v. Battard, 2 Mees. & W., a57; Turner v. Russell, 14
Pick., 193 ; Ambler v. Bradley, 6 Vt., 119 ; Porter v.
McClure, 15 Wend., 187 ; Campbell, v. Calhoun, 1 Pa.,
140; Boyor v. Anderson, 2 Leigh, 650; Ross v.
Drinker, 2 Hall, 415; Green v. Beesley, 2 Bing.N. S..
108; The Crusader, Ware, 437; Loomis v. Marshall,
12 Conn., 69 ; Story on Part., pp. 80-75 ; Call, on Part..
17 ; 3 Kent's Com., 34 ; Cary on Part., 11.

68 U. S.

1859

Maxwbll y. MooBB.

185-191

the officers and crew; but the clerk, or receiv-
ing and disbursing agent, is to be appointed by
the Wards, and to be under their control.

The receipts of the steamer are to be ap-
plied—

1st. To pay expenses.

dd. Insurance.

8d. Six thousand dollars to Ward.

4th. Three hundred to Thompson.

5th. The balance of the proflts to be equally
divided.

Here we have everything necessary to con-
stitute a partnership.

Ist. The parties have joined together to carry
on a certain adventure or trade, for their mut-
ual profit — one contributing the vessel, the
other hib skill, labor, and experience, &c.

2d. There is a communion of profits, on a
fixed ratio.

Of such a contract, a court of admiralty has
no Jurisdiction.

Thi decree of the circuit court is, therefore,
afflrmed, toUh costs.

Affff.— Newb., 05.
Cited— 6 Ben., 257.

DAVID MAXWELL and THOMAS WAT-
KINS, AKD MARY W ATKINS, ras Wife,
Plffs.inEr,,

ISRAEL M. MOORE, MADISON M. MOR
RIS, HENRY MORRIS, JAMES P. KEL-
LEM, JOHN F. BLACK, JAMES F.
BATTE AND WILLIAM M. CRAIG.
(See 8. C. 22 How., 186-191.)

State decision, <ts to State Statute, conclusive —
soldier^s land — courts cannot add exception to
Statute,

Where it has been decided by the Supreme Court
of Arkansas that a special Act of that State au-
thorized the administrator to make a valid deed,
and devest the title of the heird, such decision on
the eflTect of the state law, is conclusive on this
court.

The Act of 1828, allowinsr the soldier to exchange
his land, did not carry with it the prohibition
ttjrainst alienation, contained in the Act of 1812.

Where the Lesrislature makes a plain provision,
without making: any exception, the courts of Jus-
tice can make none, as it would be legrlBlatlngr to
do so.

Sulnnitted Dec. 8. 1869. Decided Dec. 2 7,1859.

IN ERROR to the Supreme Court of the State
of Arkansas.

This was an action of ejectment brought in
the Circuit Court of White County, Arkansas,
by the plaintiffs in error, the grantees of the
heirs at law of Allen McVey, deceased, to re-
cover a certain quarter section of land.

The trial resulted in a verdict and judgment
for the defendants. This judgment having
been affirmed by the Supreme Court of Arkan-
sas, the plaintiffs sued out this writ of error.

A further statement of the case appears in
the opinion of the court.

Mr. A. Fowler, for plaintiffs in error:
By the Act of Congress approved May 6,
1812, granting bounty lands to soldiers, their

See 22 How.

heirs and legal representatives, it is expressly
declared that "all sales, mortgages, contracts
or agreements of an^ nature whatever, made
prior thereto" — the issuance of the patent —
" should be held null and void."

2U. 8. Stat. atL., 729.

The Act of May 22, 1826, on the same sub-
ject, declares that a soldier or his heirs to whom
bounty land has been patented in Arkansas,
and is unfit for cultivation, who has removed
or shall remove to Arkansas with a view to
actual settlement on the land, &c., may relin-
quish such land to the United States, and enter
a like quantity of land elsewhere in the dis-
trict, &c., which may be patented to him, &c.

4 Stat. atL., p. 190, ch. 147.

This latter Act was afterwards revived and
continued in force by Act of May 27, 1840.

See 5 Story U. S. L. , p. 2792.

The several amendatory Acts engrafted on
the Act of May 6. 1812, continue also in force
the prohibitory clause declaring all sales, con-
tracts, &c. , void where they are made before the
Satent issues. The contract of sale made by
[cVey to Pelham was null and void; and the
land entered and patented in McVey's name,
inured to the benefit of his heirs and their as-
signees after the patent was issued — and not to
Pelham or his assignees under such void con-
tract.

The circuit court twice expressly decided
that the contract of sale from McVey to Pel-
ham was valid, denying distinctly the rights of
McVey's heirs and their assignees under these
Acts of Congress; which the Supreme Court
of the State broadly affirmed.

18 Ark.. 475, 480.

Hence the plaintiffs have a right to a revis-
ion of the judgment, under the 25th section of
the Judiciary Act of 1789.

The whole legislation upon these bounty
lands, especially the Acts above referred to,
shows exclusivly the intention of Congress to
guard and protect the rights of the soldier and
his heirs, and to prevent speculation in the lands.

And in all such cases, the courts construe
such Acts favorably and liberally for the pro-
tection of the recipients of the bounty of the
government, and against the speculators in such
bounty.

Opinion of Atty-Gen. Taney, No. 115, sec.
2, Laws Instr. & Opin., p. 177; Nick'n Heirs v.
Rector, 4 Ark.. 279; Robs v. Doe, ez dem. Bar-
land, 1 Pet., 667; Wynn v. Garland, 16 Ark.,
462; McElyea v. Hayt^r, 2 Port. Ala., 152.

The established rule of construction, and
which it is insisted on the part of the plaintiffs
in error is applicable to and protects them in
this case, is, that where there are several leg-
islative Acts inparimateria,rfi\2Xmg to the same
subject-matter as these are, they must be taken
together and compared, m their construction as
one Act. They must be considered as all govern-
ed by one spirit and policy, and intending to be
consistent andharmooious in all their parts and
provisions.

1 Kent's Com., 5th ed., 463; White v. John^
son, 23 Miss., 74; Bex v. LoxdcUe, 1 Burn.,
447; AHesbury v. Pattison, 1 Doug., 30; Sm.
Const. & Stat. Const., sees. 686-639, 642, 643.

And the foregoing rule applies, although
some of the statutes mav have expired or are
not referred to in the subsequent Acts.

851

185-191

SUFRBMB COUBT OF THS UnTTBD 8taTB8

Dbc.Tbbm^

1 Kent's Com., 5lh ed. 463; Bex v. Loxdale,
1 Burn., 447; Sm. ConBt. and Stat. Constr.,
sees. 687, 638.

Even in case of a subsequent and amendatory
Act of Limitation not providing for a case speci-
fied in the former Act. it will, by the court, be
intended and presumed that the Legislature de-
signed the latter to be governed by the former
Act.

Robei'Uon v. DeM<m, 28 Miss , 801 : see, also,
on this point, Sm. Const, and Stat Const.,
bees. 688 and 648.

The intention of Congress, from a fair con-
8t ruction of the several Acts on the subject,
was manifestly to protect the soldier in his
float, as much as in his original warrant, and
in either ca^ to make all contracts of sale' be-
fore the issuing of the patent, void. And an
object or thing which is within the intention of
the Legislature in making a statute, is as much
within the Statute as if it were within the
letter

PeapU V. UUca Iru, Co., 16 Johns., 380, 881 ;
Sm. Const, and Stat. Const., sec. 510.

Mr. Geo. C. Watkins, for the defendants
in error:

1. Both parties claim title to the land in con-
troversy, under a patent from the United States
to Allen McVey. It is not, therefore, in the
mouth of either party to question that title.
The presumption would be that the patent
emanated regularly and in accordance with law,
even if that did not appear on this record; for
example, the patent was not issued until after
McVey's death, but since the Act of Congress
of May 20, 1886, that defect is fully cured:

See OcMoway v. Finley, 12 Pet., 264.

Whether the patentee had died before the
patent issued and before the location was made,
the patent was held valid under that Act.

See, also. Hanrford v. Minorca Heirs, 4 Bibb.,
885; McCracken v. Beal, 8 A. K. Marsh., 208;
Bowman v. Violet, 4 Mon. , 851 ; AdarM v. Lo-
gan, 6 Mon., 177; Lem» v. McOee, 1 A. K.
Marsh.. 200; Skeene v. FUhbaek, 1 A. E.
Marsh., 856.

It is true that the Military Bounty Act of
1812 contained a prohibition against any sale
or assignment by the soldier, of his bounty, un-
til after the issuance of the patent, declaring
all such assignments void. There was a motive
as expressed in the Act itself, which was to
prevent the land, so long as the title remained
in the government, from being subject to the
debts of the soldiers. And the reason of the
law was, to take away from the soldier the
temptation of selling his equitable interest in a
tract of land situate in a new and wild region
of countiT, at a great distance from the soldier,
and which he had never visited, nor had any op-
portunities for judging of its value.

But as those military bounties were selected
by lottery, it inevitably resulted that in many
instances the lands proved unfit for cultivation
and worthless, and on the 22d May, 1826, an
Act of Congress was passed, authorizing the
soldier to surrender and reconvey to the United
States the bounty tract which had been pat-
ented to him, and to locate in lieu of it a like
quantity of the public land within the military
district, on proof to the satisfaction of the
proper Register and Receiver that the tract
originally patented to him was unfit for culti-
268

vation, and that his right to it had not been de-
vested or incumbered by sale or otherwise; and
in ordier to entitle himself to the benefits of the
Act, the soldier must have removed to the Ter-
ritory of Arkansas, with a view to actual set-
tlement on the land drawn by him. This Act
was revived and extended by various Acts un-
til the Act of 27th May, 1840, which revived
and extended it for five years from that date.
Such rights to locate were caUed " floats," and
as provea in this case, and indeed a part of the
public histoiT of Arkansas, were the common
subject of safe and transfer. At the time Mc-
Vey sold his right of float to William Pelham,
the Act of 1840, authorizing such floats, was in
force. If it was a power coupled with an in-
terest, it did not cease after McVey's death.
But if it was a mere naked power, it did cease,,
and the location, &c., was void, and the plaint-
iffs, as heirs of McVey, cannot claim under it.
But the plaintiffs are bound to claim under the
patent, and so recognize the validity of Pel-
ham's acts, and as a consequence, the validity
of his title, because, unless he acted for him-
self, and not as the mere naked agent of Mc-
Vey, he had no power to act.

This restriction against assignment in the
Bounty Act of 1812 is not included within the
terms, spirit or policv of the Acts of 1826, 1830
and 1840, allowing floats. Here the sale was
not of the land drawn by the soldier, but of hia
floating right, a mere chose in action {Mulhol'
Ian V. Thomson, 18 Ark., 282), and after all
the purposes of the Act of 1812 had been ac-
complished. McVey, in receiving pay for the
sale of his float, would be guilty of an ioi-
moral and fraudulent act, to attempt to repudi-
ate it. His supposed heirs, or rather those who
tampered with them, stand in no better situa-
tion. Besides, according to the whole theory
of our government, laws restricting alienation
are to l£ strictly construed and not extended,
without an express intention appears. It is in-
consistent with the nature of property, if the
individual owning property or a ri^ht to prop-
erty has not the power to alienate it.

4 Kent's Com., 479.

But again, both parties in this action must
concede that the title is out of the government
by the patent to McVey, because without that
neither has any pretense of title. The Act of
Assembly authorizing the administrator of Mc-
Vey to convey, was passed after the issuance
of the patent, and when the title was beyond
the control of the General Government, and so
far as the legal title is concerned, the question
is not whether the Legislature ought to have
passed such an Act; but the question is, had
that body the power; just as the question is,
whether a court has jurisdiction.

But the right of the defendants to the land
in controversy is good and available to them in
this action, without reference to the Act of the
Legislature, and without being bolstered up by
it in any ws^. When it is considered that Max-
well and Walker must have known of the sale
of his float by McVey to Pelham. they must
have known that the fact of the sale from Mc-
Vey to Pelham could be established.

Man^ worthless lands were relinquished to
the United States, and floats obtained for othera
to be located in lieu of them. Floating rights
were freely bought and sold for the then mar-

68 U.S.

1809.

MOKRILL V. CONB.

75-88

ket value, and because of the delay, often sev-
eral years, in the issuance of patents, the lands
when located frequently change owners, the
6ame as other lands before the issuance of a
patent. Many valuable improvements have
been made on lands thus acquired and held.

In a newly settled country, wild lands are
only made valuable by the toil and expense of
clearing and improving them. If, then, there
be any question whether all of the restrictions
of the Bounty Act of 1812, upon the alienation,
before the issuance of the patent, of the tract
originally allotted to the soldier, apply to the
lands located in lieu of them, under the Act of
1826, and the subsequent Act continuing it in
force, such a question becomes one of serious
magnitude. Disaster and confusion must ever
attend the disturbance of titles settled and ac-
quiesced in.

The Act of 1812 was passed for a specific
oblect, i. e., to give and secure a bounty to the
soldier, restricting and protecting his rights
down to the issuance of the patent. After
that object had been accomplished, ensued the
operation of the Act of 1826. That Act is in
no sense supplementary to the Act of 1812.
It does not re-enact or revive, or extend any of
its provisions, so as also to revive by implica-
tion any of its restrictions. It granted no
bounties, but dealt with those who had received
their bounties and, by the issuance of patents,
had become clothed with all the authority and
free agency of ownership. They were no long-
er soloiers, but citizens and inhabitants of the
territory to which they had removed with a
view to actual settlement. The whole scope of
the Act of 1826, is to make provisions for an
exchange of lands in certain cases, pre-suppos-
ing that all the provisions of the Act of 1812
had been accomplished.

• Mr. JtuUee Catron delivered the opinion of
the court:

This cause is brought before us by writ of
error to the Supreme Court of Arkansas, and
presents a single question for our consideration.

Allen McVey served as a regular soldier in
the war of 1812, and was entitled to a tract of
160 acres of land as a bounty for his services.
The land was located and granted in what is
now the State of Arkansas. By the Act of
May 6, 1812 (2 Stat, at L., 728). which granted
the bounty lands, all sales or agreements made
by a grantee of these lands, before the patent
iasued, were declared to be void.

Many tracts of the lands granted turned out
to be unfit for cultivation,so that the soldier took
no benefit; and, as compensation, the Act of
May 22, 1826 (4 Stat, at L.. 190), declares that
the soldier, or his heirs, to whom bounty land
has been patented in the Territonr of Arkan-
sas, and wliich is unfit for cultivation, and who
has removed or shall remove to Arkansas with
a view to actual settlement on the land, may
relinquish it to the United States, and enter a
like quantity elsewhere in the district, which
may be patented to him. This Act was con-
tinued in force by that of May 27th, 1840. (5
Stat, at L., 880.)

McVey surrendered his first patent accord-
ing to the Act of 1826. and in 1842 another is-
sued in his name for the land in dispute.

In 1884 McVey gave William Pelham a bond

See 22 How.

to convey to him the land that might be en-
tered on his certificate of surrender (known as
a float) and a power of attorney to locate the
same, and obtain the patent. McVey died in
1836. In 1842 Pelham entered the land in con-
troversy in McVey *s name.

A special Act of the Legislature of the Stale
of Arkansas was passed, authorizing McVey 's
administrator to convey the land to Pelham,
which was done.

Afterwards, the plaintiffs in error obtained a
conveyance from the heirs of McVey, on which
their action of ejectment is found^. As the
title vested in Allen McVey's heirs by the pat-
ent of 1842, they could well convey the land
unless the administrator's deed stood in the
way. OaUoway v. Mn^. 12 Pet. , 264. That
the special Act of Assembly authorized the ad-
ministrator to make a valid deed, and devest
the title of the heirs, was decided in this ca^e
by the Supreme Court of Arkansas, and- which
decision on the effect of the state law is con-
clusive on this court. We exercise jurisdiction
to revise errors committed by state courts,
where the plaintiff in error claims title by force
of an Act of Congress, and the title has been
rejected on the ground that the Act did not
support it. And this raises the question,
whether the Act of 1826 (4 Stat, at L.. 190), al-
lowing the soldier to exchange his land, car-
ried wit^ it the prohibition against alienation
contiMned in the Act of 1812. (2 Stat, at L.,728).

The court below held that it did not, and that
Allen McVey did lawfully bind himself to Pel-
ham for title.

It is insisted that the Acto of 1812 and 1826
are on the stime subject, must stand together
as one provision, ana the last Act carrv with
it the prohibition found in the first. We are
of the opinion that the Acts have no necessary
connection ; that there was no good reason why
the soldier who removed to Arkansas, and in-
spected his tract of land, then patented, and
alienable, should not contract to convey the
tract he might get in exchange. We can only
here say, as we did in the case of French v.
Spencer, 21 How. , 288, that the Act of 1826 is
plain on its face and single in its purpose; and
that in such cases the rule is, tliat where the
Legislature makes a plain provision, without
making any exception, the courts of justice can
make none, as it would be legislating to do so.

There being no ot?ter queeHon preeented by tfte
record toitJtin the juruSUction conferred on tfiis
court by the 26ih section of the Judieiary Act,
toe order that judgment <f the Supreme Court of
Arkansas be affirmed.

ELISHA MORRILL, Plff. in Br., .

JOHN CONE AND CARLOS J. CONE.

(See 8. C, SB How., 76-88.)

Acts of special agent must be within his cnUhority
— recitals in attorney* s deed not evidence of his
authority— admission of payment in, when good
— principal not estopped — incompetent testi-
mony.

When the authority oonferred by letter of at-
torney is speoial and Umlted, the asrent's acts under
it, ar« valid only as they oome witnin its soope and
operation.

868

75-88

BupRRMx Court of thb Unttbo Ut^tjeb.

Dkc. Tbrm,

Bona >lde purchasers are not entitled to repose
credit In tbe recitals and declarations of the at-
torney, as expressed In his deed, that disclose the
mode in which the authority has been ezerclsed,and
will not be protected a^rainst their falsitv.

The principal is not estopped to deny their truth.

Where the deed, executea by an attorney, is ap-
parently within the scope of his power, the admis-
sion therein of payment of the consideration, is
competent testimony of the fact. But it is compe-
tent to his principal to show that the transaction
was in appearance only, and not in fact, within the
authority bestowed.

Testimony of one of the donors of the power,
that he is Informed and believes that the purchase
money had not been paid to the ^rrantors, was not
admissible.

SubmiUed Dee. 7, 1869. Decided Dec. SO, 1859.

IN ERROR to the Circuit Court of the United
States for the Northern District of lUinoifl.

This was an action of ejectment brought in
the court below, by Morrill, the present plaint-
iff in error, against the present defendants in
error. .

The trial resulted in a verdict and Judgment
for the defendants; whereupon the plaintiff
sued out this writ of error to this court, alleg-
ing error in the instructions of the court.

A further statement of the case appears in the
opinion of the court.

Mewr». Willisuiis, Grimshaw & Will-
iams, for plaintiff in errror.

We insist that Beck's authority to sell and
convey was a special and limited, and not a
general power; that the taking of sufficient
security on real estate, was an indispensable con-
dition upon which his right to sell and convey
depended, and that purchasers claiming under
that power were bound, at their peril, to see
that this condition was complied with, and that
as the land was sold on a credit and no secur-
ity for the purchase money was given or taken,
the conveyance made by Beck was absolutely
null and void.

Sug. Pow.,210, 262, 267. cases cited; 4 Cruise
Dig.. 146. 200; 1 Phil. Ev.. 468; 1 Story on
A^en., sees. 72, 126, 188; 4 Kent's Com., 829;
Thatcher v. P&weU, 6 Wheat., 119; WtUiams v.
Peyton, 4 Wheat., 77; NaUe v. Fenwiek, 4
Rand., 585; WUliavMon v. Berry, 8 How.. 495;
>riZ^tafn«m v. Iruh Prenb. Gang., 8 How., 565;
WilUamsan v. BaU, 8 How. , 566.

It is certainly true as a general principle, that
no person can sell and convey a valid title to the
land of another, without express authority to
do so. It would be extremely dangerous to the
security of land titles, to hold that when a per-
son attempts so to do the owner would thereby
lose his land, simply because he failed to sue for
it or otherwise assert his right to it, when no
person is occupying or otherwise interfering
with it. Without going this length, it is im-
possible to sustain the title of the defendants
and the Judgment of the court below. It is a
new and original idea, that a void title may be-
come valid simply by lapse of time. Soldiers
frequently sold, or gave powers of attorney to
others to convey, their bounty lands, from 1815
to 1817,before the patent issued. If such persons
have paid the taxes to the present time and the
soldier has entirely neglected the land until re-
cently, as well might it be said that these con-
veyances have become valid by lapse of time
and the neglect and acquiescence of the owner;
yet this idea has hardly entered into the con-
ception of any lawyer, and such title has re-

854

cently been sustained by the Supreme Court of
Illinois.

Rose V. BueMand, 17 111., 810.

In both cases the conveyance is void. In tbe
first case the pow^r of attorney is void, in the
other the act of the attorney is void ; but thia
makes no difference in principle . One void act
may be ratified or become valid %y lapse of
time and acquiescence, as well as another, with-
out reference to the particular cause which
renders them void. Being void, they are sub-
ject alike to the same law and incidents.

OanUy v. Eudng, 8 How.. 718.

Mr. O* H. Browning, for defendant in
error:

Nathaniel Abbott, with full knowledge that
Beck, purporting to act as his attorney , had in his
name,on Sept. 12, 1820, signed, sealed, acknowl-
edged and delivered to O'Hara.a deed whereby
he, said Abbott, purported to convey to aaid
O'Hara in fee simple the land in controversy; in
Feb. 1 821 .duly executed and transmitted to Beck
a power of attorney to be spread upon the records
authorizing Beck, for him and in his name, to
sell and convey the land : and deliberately, and
with the express intention of covering what had
been already done by Beck, and to give it the
semblance, lineaments and features of ft pre-
existing instrument, antedated it, July 14, lo20;
and thus antedated, with its apparent priority
in time to the deed made by Beck in Septem-
ber, it was put upon record for the inspection
of all who might afterwards come to purchase
the land conveyed apparently by its authority.

Thirty years after ful this, the defendant, fo
good faith, purchased the land, and now Mr.
Abbott wishes to repudiate the entire tranaaction
upon the ground that when the deed was made
the power of attorney had no existence, in fact»
admitting at the same time, that he did after-
wards execute the power of attorney and ante-
date it. Every pnnciplo of law and Justice
requires that Abbott and all who claim under
him, should be absolutely estopped to deny that
Beck, when he made the deed, had the power
of attorney with its date of July 14, 1820, by
which he was invested with full power to con-
vey.

1 Greenl. Ev., sees. 22, 28, 207, 208; Carter
V. Jackson, 4 Pet., 88; Story, Agen., sees. 289,
242, 244, n. 1; MaeUanv. Dunn, 4 Bing., 722;
Barbour V. Craig, Lit. Sel. Cas., 218; Caimea
V. Bleeeker, 12 Johns., 800; Jackson v. Richt'
myer, 18 Johns., 867; Clark y. VanRiemsdyk, 9
Cranch. 153; Fresh v. OUson, 16 Pet., 827;
Copeland v. Mercantile Ins. (i>.,6 Pick., 208;
McCoy V. Morrow, 18 111., 528.

Mr. Justice Campbell delivered the opinion
of the court:

This suit was brought for the recovery of a
parcel of land lying m the tract appropriated
for military bounties in Illinois, and granted by
the United States in 1818 to Benjamin Abbott,
a private in their army in the war of 1812, as
bounty. The title of the plaintiff consisted of
a certified copy of the patent to Abbott, and
a quitclaim deed of Abbott to him, dated in
1855. He also produced a deed from Nathaniel
Abbott to him. dated in 1888. The defendants
exhibited the original patent to Abbott; his deed
to Nathaniel Abbott, dated in 1818, for the
same land; a deed from Nathaniel Abbott, John

68 U.S.

1»59

Morrill v. Comb.

75-88

Low, and John D. Abbott, dated I2th Septem-
ber. 1820. to William O'Hara, and executed by
Abraham Beck as attorney, and connected them-
selves with this deed by a number of mesne
conveyances, the last of which was to the
defendants, and was executed in April, 1850.
They entered upon the land under this deed,
and paid taxes until the commencement of this
suit. These conveyances were recorded in the
proper office. The Questions presented by the
bill of exceptions sealed for the plaintiff on the
trial arise on the conveyance to Wm. O'Hara,
by Nathaniel Abbott, «fohn Low and John D.
Abbott.

This deed purports to have been made upon
a pecuniary consideration, the amount and
receipt of which is acknowledged. The letter
of attorney to Beck is dated the I4th July,
1820, and was recorded the 80th July, 1821. It
authorizes the attorney to sell and convey some
sixty -four parcels of land, including the one in
dispute, in the military tract de8cril)ed in a
schedule annexed, for such price and to such
persons as he migftit think fit, and to make, exe-
cute and deliver good and sufficient warranty
deeds to them. To the ordinary testimonium
clause a proviso was added, "that the condition
is understood to be such, that our said attorney
is to take sufficient security on real estate for
all the lands which may be sold OiU a credit. "
The donors of this power of attorney reside in
New Hampshire; the attorney in Missouri.

The plaintiff read a deposition of John Low,
one of the donors of the power, from which we
collect that Beck, the attorney, was verbally
authorized to find a purchaser for the lands
described in the schedule, and other parcels in
the military tract in Illinois, and agreed with
O'Hara upon the price and term of credit.
That tliis agreement was communicated by
letter to the witness, who sanctioned it, and sent
a power of attorney to Beck to complete the
sale and to execute the titles, but to reserve a
mortgage on the lands sold to secure the pay-
ment of the purchase money.

O'Hara objected to giving a mortgage upon
the lands purchased by him, but offered to give
security upon other real property. Thereupon
the attorney prepared a deed for all the lands
embraced in the contract to O'Hara, and took
his notes for the purchase money, and gave to
him his guaranty that his constituents would
confirm 4he safe, and received from him a
covenant that whenever Beck should receive a

Sower of attorney to convey said lands and con-
rm his proceedings, and deliver the same to
him, O'Hara, he would deliver to Beck for his
constituents a sufficient mortgage upon real
property to secure the price. The power of at-
torney produced by the defendants was pre-
pared by Beck without the condition, and sent
to Low, to be executed by him and the others,
to enable him to fulfill the agreement. This was
done by them after adding the condition, on
the 12th February, 1821. The witness says
that there was no schedule attached to it. He
answers, from information and belief, that Beck
did not collect from O'Hara any money, or re-
ceive from him any further security. The dis-
trict judge, upon this testimony, instructed
the jury that the defendants had the superior
title, and their verdict was accordingly ren-
dered for them.

tiee 22 How.

The authority conferred upon the mailda-
tary by the letter of attorney is special and
limited, and his acts under it are valid only as
they come within its scope and operation. He
was bound to conform to the conditions i( con-
tains, in its execution to adopt the modes it in-
dicates.

He was authorized to sell the lands for cash
or on a credit with security on real property, to
execute a deed describing the consideration, ac-
knowledging its payment, and to receive the
money or securities the purchaser might render.
P«j* V. Harriott, 6 8. & R., 149; 9 Leigh, 887.
But he was not authorized to exchange the
lands for other property, or to accept the notes
of the vendee as cash, or to accept personal
security, or any form of security except that
specified in the condition. Non est infaeuUate
inandata/rii addere vel demere ordini kbi dato.
These propositions are not disputed as appli-
cable to cases arising between parties to the
original contract, in which the limitations on
the authority and the circumstances of depart-
ure from it in the execution are understood.
But it is contended that bona fide purchasers
are entitled to repose credit in the recitals and
delarations of the attorney as expressed |n his
deed, that disclose the mode in which the au-
thority has been exercised, and will be protected
against their falsity; that the principal is es-
topped to deny their truth. This argument rests
for its support upon the hypothesis that the delin-
quency of the mandatary is a breach of an equi-
table trust, a trust cognizable in a court of chan-
cery only, a court that will not administer relief
against ?kbona fide purchaser having the legal
title. It assumes that the deed made by the attor-
ney invests the grantee with the legal title, not-
withstanding the noncompliance with the condi-
tion. If this were true, the inference would fol-
low. Danburyy.Loekbum.l Mer., 626. But the
assumption is not tenable. The attorney was
not invested with the legal estate. fTe was the
minister, the servant, of his constituent, and
his authority to convey the legal estate did not
arise except upon a valid sale in accordance
with the requirements of the power.

Doey, Martin, 4 T. R., 39; Minotv. Pres-
eott, 14 Mass., 495. The deed executed by the
attorney is apparently within the scope of his
power, and the admission of payment of the
consideration is competent testimony of the
fact. American Fur Co, v. United States, 2
Pet., 858. But it is competent to his principal
to show that the transaction was in appearance
only, and not in fact within the authority be-
stowed.

And the question arises, was there any testi-
mony to be submitted to the jury to repel the
presumption that there was a bona fide execu-
tion of the trust reposed in the attorney. One
of the donors of the power, but who does not
appear to be interested in the land otherwise
than by the recital in that instrument, admits
his knowledge of the terms of the sale made to
O'Hara; that this power was remitted to Beck
to validate the contract, as far as it had been
executed, and to enable him to complete it ac-
cording to the engagement that had been en-
tered into.

The power of attorney and the deed had been
on the public recordn for thirty- four years
before this suit was commenced, and for five

26$

,j6-6e

SuFRXMK Court of thx Unitbd Statbs.

Dbc. Tbvm,

years these defendants had been in the actual
possession of the property. It had been re
peatedly sold during this long period. To the
inquiry made of the witness, whether the pur-
chase money had been paid to the grantors, or
whether the security on real property had been
taken, he answers: " 'This affiant is informed
and believes that most of the lands were sold
to William O'Hara without security, or the pay-
ment of anything in hand upon the promissory
notes of the said O'Hara, which, as this affiant
is informed and believes, were in the hands of
Beck at the time of his death, and copies of
which. * * as he is informed and believes,
♦ * * are annexed." It is the opinion of
the court that this testimony was not admissible ;
and although it was read to the jury, it did not
contain anything to warrant a conclusion un-
favorable to the title of the defendants.
Judgmefit qfflnned.

cited— fle U. S., 4«5.

SPRINGFIELD TOWNSHIP OF FRANK-
LIN COUNTY.

JOHN H. QUICK. Auditor, and WM. ROBE-
SON, Treasurer of Franklin County.
(See 8. C, 22 How., 66-00.)
Indiana acfuxfl fund.

The Indiana state Iawb, apportloningr the school
fund, do not violate the Acts of Conflroes provid-
ing that the proceeds of the sixteenth section shall
be for the use of schools in the township.

SuJmitted Dec, 19, 1869. Decided Jan. 3. 1860.

IN ERROR to the Supreme Court of the State
of Indiana.

This action was brought by Springfield
Township against Quick, Auditor, and Robe-
son, Treasurer, of the said county, in the Frank-
lin Circuit Court. The complaint was for an
injunction to enjoin the Auditor and Treasurer
from distributii^g the school fund in said coun-
ty, in compliance with the provisions of the
School Law of Indiana, approved March 5. 1855.

The clerk of that court, er officio granted a
temporary injunction. This order, at the sub-
sequent term of the court, was made perpetual.

The defendants appealed to the Supreme
Court of Indiana, which court reversed the
judgment of the Franklin Circuit Court.

From this ruling of the Supreme Court of
Indiana, this writ of error is broucrht.

A synopsis of the laws under which the case
arose, appears in the brief for the plaintiff in
error.

The <)uestions as stated b^ the counsel for the
appellees, were, the constitutionality of the
school law of the State of Indiana, approved
March 5, 1855, and whether that law violates
the Act of Congress making Uie grant of the
16th section of lands throughout the State for
the use of schools.

Mr. Lueian Barbour, for the plaintiffs in
error:

An historical statement of the facts involved
in the controversy in this case, will best exhibit
the errors complained of.

266

The counsel referi*ed to the following Acts of
Congress and of the Legislature.

Act of Congress, March 26, 1804; bv the 5th
section of which, section number 16 was re-
served in each township in Indiana for the sup-
port of schools.

Act of Congress, April 19, 1806; Act to en-
able the people of Indiana Territory to form a
constitution and State government, which of-
fered the following propositions to the Terri-
tory for acceptance: First. That the section
numbered 16 in every township (and when such
section has been sold, granted or disposed of
of, other lands equivalent thereto and most con-
tiguous), should be granted to the inhabitants
of such township for the use of schools.

Second. That the salt springs within the
said Territory should be granted to the State for
the use of the people, &c.

Third. That five per cent, of the net pro-
ceeds of the lands lying within the State.should
be reserved for maaing roads, canals, &c.

Fourth. That one entire township should be
reserved for the use of a seminary of learning,
and vested in the Legislature. <&c.

Fifth. That four sections be granted to the
State for the purpose of a seat of government.

This Act also provided that the Ordinance of
the Territory accepting the foregoing proposi-
tion should exempt lands sold by the United
States after the first day of the next December,
from taxation for five years from date of sale.

On the 20th day of June, 1816. the Conven-
tion of Indiana accepted this proposition. On
the 24th of December, 1816, ft passed an Act
entitled "An Act to prevent waste on lands
preserved for the use of schools and aalt
springs. "

The 5th section provided for the incorpora-
tion of any congressional or fractional township
in certain cases, and the election of trustees by
the same.

This Act was re-enacted in 1818. In 1819 an
Act was passed authorizing the trustees to let
out any money of the township sustaining
schools therein.

In 1824, an Act was passed, one section of
which provided that the lands reserved by Con-
gress for the use of schools in each conces-
sional township, should be vested in this Cor-
poration.

On January 25, 1827. and January 28, 1828.
Acts were passed, looking towards procuring an
Act of Congress, authorizing the Legislature of
Indiana to convey, in fee simple, lands reserved
by Congress for the use of schools within the
State. On the 24th day of May, 1828, an Act
of Congress was approved, granting such au-
thority, with the provision that no land should
be sold without the consent of the inhabitants
of the township or district, and that out of the
proceeds of the funds, each township and dis-
trict should be entitled to such part thereof as
should have accrued for the sale of school land
belonging to such township or district.

January 28, 1829, an Act passed by the In-
diana Legislature was approved, which pro-
vides for the incorporation of each congression-
al township in the State, the election of school
trustees therein, and the election of a school
commissioner in each county, and a sale by
him of the 16th section, whenever a majority
of the voters of the township should attend an

«8 U.S.

1859

Spbinqfield Township v. Quick.

06-^9

election to be faeld for that purpose, and direct
such sale. In 1880 an Act was passed authoriz-
ing the lease of school lands, and providing some
restrictions on the sales.

On Feb. 2, 1883, an Act was passed, which
provided that in case of a sale of the school
lands of any township, the inhabitants should
hold an election and determine whether the
proceeds of the sale should be deposited in the
Loan Office of the State, left with or be loaned
by the School Commissioner.

Sections 88 and 89 of that Act read : ' ' The
moneys placed in the Loan Office, belonging
to the inhabitants of any township, shall there
remain a permenant fund for the purpose of
school education for such townships, and shall
yield a legal interest, and not le^ than at the
rate of six per cent, per annum."

"And the faith of the State is herebv solemn-
ly pledged to the inhabitants of each of said
townships for the preservation of the fund be-
longinging thereto, and for the payment of said
annual interest." In 1887 a similar law was
enacted. In 1841 an Act was passed, authoriz-
ing a township to withdraw funds from the
L^n Office, to be loaned out -by the School
Commissioner.

In 1843, the Legislature passed an Act re-
modeling the School Law, section 114 of which
provides " that the several counties should be
held liable to the inhabitants of the respective
congressional townships for the preservation of
the said fund, and the payment of the annual
interest thereon, at the rate established by law.

In 1849, the office of School Commissioner
viras abolished, and his duties transferred to the
Countv Auditor and Treasurer. For the first
tune the proceeds of the sale of the 16th sec-
tion went into the County Treasury for man-
agement and distribution.

The 7th section of this Act contains the fol-
lowing: "Providing that nothing herein con-
tained should be so construed as to divert the
fund, commonly called the Congressional
Township Fund, or any part thereof, from the
objects and purposes for which it was granted
by Congress."

After this, Indiana adopted her new Constitu-
tion, called the Constitution of 1851, in which
an effort is made to consolidate the school funds
of the State.

The 8th article of the Constitution contains
the following provisions on the subject of
education.

Sec. 1. Knowledge and Learning generally
diffused throufchout a community being es-
sential to the preservation of a freegovermnent,
it shall be the duty of the General Assembly to
encourage, by all suitable means, moral, intel-
lectual, scientific and agricultural improve-
ment; and to provide by law for a general uni-
form system of common schools wherein tui-
tion shall be without charge and equally open
to all.

Sec. 2. The common school fund shall con-
sist of the congressional township fund, and
the lands belonging thereto; the surplus rev-
enue fund, and the other funds named.

The 3d, 4th and 5th sections provide for the
funding investment and distribution thereof.

Sec. 6 makes the several counties liable for
the preservation of the fund and payment of
the interest there^x^,

See 22 Uow. y. S., Book 16.

Sec. 7. ' 'All trust funds held by the State shall
remain inviolate and be faithfully applied to
the purposes for which the trust was created."

Sec. 8 provides for the election of a State
Superintendent of Public Instruction.

Pursuant to the provisions of this article of
the Constitution, the first Indiana Legislature,
convened after its adoption by an Act approved
June 14, 1852, and found in the revised Code
of 1852, Vol. I, page 439, undertook to con-
solidate the school funds of 1832, and to dis-
tribute generally over the State the proceeds of
the 16th section of each township, reserved by
Congress to the inhabitants of the respective
townships in which the sections are situate, for
the use of schools therein.

This distribution was controverted by the
present plaintiffs in the state courts, and their
power and right to the exclusive control of this
16th section, and its procc^eds fully established
by the Supreme Court of the State of Indiana
in the case of The State of Indiana and otJters v.
Springfield Totonship, reported in 6th Indiana
Reports, page 84, t&c., and which is especially
referred to the attention of this court, as con-
taining a true statement and history of the leg-
islation of Indiana on this subject, and a full
vindication of the right of the plaintiffs in this
case to the relief sought.

Shortly after this judgment was pronounced
by the Supreme Court of the State of Indiana,
which was at the November Term, 1854, the
Legislature of Indiana, to avoid its force and
effect, and indirectly to accomplish that which
the court determined could not be done, passed
an Act approved March 5, 1856, entitled "An
Act to provide for a general system of common
schools, the officers thereof, and their respective
duties, and matters properly connected there-
with, and to establish township libraries, and
for the regulation thereof."

See Acts of Indiana for 1855, page 161.

The plaintiffs in error insist that the 8th ar-
ticle of the Constitution of 1851, of the State of
Indiana, and the legislation of said Statute of
March 4, 1855, are both in violation of the ordi-
nance and Acts of Congress vesting these said
16th sections in the inhabitants of the respect-
ive townships in which they are situated, and
consequently, void.

It cannot be disguised that this legislation
of 1855 was a palpable evasion of the judgment
pronounced by the Supreme Court of Indiana,
in 6th Indiana Reports, pase 84. And this high
court will certainly not tolerate this petty sud-
terfufl^e, but will hold, as they did ill Trustees
for VincenTieh University v. The State of Indiana,
14 How., 268. that the rights of parties cannot
thus be trifled with, but will be held sacred
from all improper legislation.

The judgment of the Supreme Court of In-
diana, in the case at bar in 7th Indiana Reports,
page 636, pronounced by Judge Gookins, we
think, is a very lame attempt to justifv the 8th
article of the Constitution of 1851 and the Act
of 1255, and cannot be sustained by reason or
authority. With all due respect for the opinion
of that court, it is a mere ok captandum argu-
ment ; and, as will be seen, was the opinion of
a divided court.

Mr. D. D; Jonest for defendants in error:

The appellees conceive the only material
points in the case to be the following two:

17 i'ol

CO-69

BuPHttMA COUBT OF THA UkITAD BtATBA.

Dkc. Tbbm,

Isl. Is tfae Act in question constitutional?
2d. Does it violate the Act of Congress mak-
ing the grant of the,16tb section of lands in the
several congressional townships of the Stato of
Indiana, "to the inhabitants thereof, for the
use of schools?"

Does it contravene any provision of the Con-
stitution of the State of Indiana? It is insisted
that it does not, as the Constitution of the btate
is but an organic rule originating in, and re-
strictive of, the unlimited powers of a sover-
eignty— not defining what alone the Legislature
may do in its capacity as the law-making power
of the State — but postively prohibiting certain
acts of legislation; denying that branch of the
state government the privilege of interfering
with certain defined rights reserved by the peo-
ple, and pointing out the mode in which le^sla-
tion shall be conducted. It does not withhold
from the State the right to prescribe, through
the aj^ncv of her Legislature, a rule for the
taxation of her people and their property within
her limits, for ^ucatlonal purposes. iNor does
it prohibit any distribution the Legislature mav
see proper to direct, of such taxes so collected,
whether that distribution he per capita, or with
reference to existing educational advanta^one
locality may have over another; and whether
donations from the General Government or other
sources shall be taken into consideration in the
mode of distribution, is conceived to be an un-
trammeled power of the Legislature of the
State, the exercise of which is unforbidden by
any provision of eitlier the State or Federal
Consiilution.

The very features of the law complained of
are component parts of the State Constitution;
and if not repugnant to other subsequent pro-
visions of that instrument; their validity is co-
equal with the Constitution itself. These pro-
visions are contained in the 8th article of the
Constitution of the State.

Vide R. S. of Indiana, 1852, Vol. I., p. 62.
The sections of the law held to be excep-
tionable by the appellant, are clearly within
the directory provision of the 8th article of the
Constitution of Indiana, and section 101, so far
from diverting or diminishing the congres-
sional township fund, expressly provides "that
in no case shall the income of the congressional
township fund belonging to any township, or
part of such township, m diminished by such
distribution and diverted to any other town-
ship."
Laws of the State of Indiana, 1855, p. 176.
It is insisted by the appellant, that the Act
is contraventive of that provision of the State
Constitution which requires all laws of the State
to be of uniform operation throughout the
State, which position the appellees deem to
have been properly held untenable by the
Supreme Court of the State in this same case.
The court says: "It does not conflict with the
28d section of the 4th article of the Constitu-
tion of the State of Indiana, which requires all
laws to be of uniform operation throughout the
State; for the Act is not only uniform in itself,
but it produces uniformity in the subjects upon
which it operates."

The entire subject-matters upon which the
Act in (question proposes to operate, is within
the limits of the State of Indiana. She does
not propose, by this legislative enactment, to

258

assume control of any foreign matter whatever.
And it has been held "that a State has the
same undeniable and unlimited jurisdiction
over all persons and things within its territorial
limits, as any foreign nation, when that juris-
diction is not surrendered or restrained by the
Constitution of the United States."
Mayor of New York v. MUn, 11 Pet, 102.
Inasmuch as the Act does not propose to
divert the concessional township fund, but
expressly^ provides against its diversion and
diminution, and for its faithful preservation
and application to the specified use for which
it was granted, it most certainly does not violate
the Act of Congress granting the lands to the
several to wnshi ps of the State. Such construc-
tion can only ^ given to the Act in question
by imputing to the State Legislature an igno-
rance or duplicity inconsistent with common in-
telligence and common honesty.

It being a well settled principle that the
power of a State to levy taxes, to create a revenue
for any specified object, is an incident of sover-
eignty, and only restricted by constitutional
inhibitions; and' there being no such constitu-
tional prohibition^'the sense of honor, justice
and equity of a State alone defining the limits
within which that power shall be exercised —
what feature of the law in question can be said
to exceed the authority of the State? In the
Constitution of the State of Indiana there is no
feature, the appellees insist, prohibiting the
levying and collecting of taxes such as con-
templated by the School Law in question. The
Constitution of the State being silent as to the
mode of distributing the common school fund,
that burden was necessarily cast upon the Leg-
islature. In the exercise of this necessary in-
cidental power, that body directs that all the
funds raised to constitute a common school rev-
enue be so distributed, taking into considera-
tion the congressional township fund, as to in-
insure an equality of educational facilities
throughout the State.

The same power that can rightly divert a
revenue enjoyed by peculiar localities, and dis-
burse it throughout an entire State, most cer-
tainly possesses a sufficient authority over her
own internal affairs, to take into consideration
other funds in her efforts at placing all upon
a uniform basis, as it respects the means of ^u-
cating her people.

Mr. Justice Catron delivered the opinion
of the court:

The 25th section of the Judiciary Act de-
clares, that where is drawn in question the
construction of any statute of the United States,
and the decision Is against the right set up or
claimed bv either party under the Act of Con-
gress, such decision may be re-examined, and
reversed or affirmed, in the Supreme Court, on
writ of error.

Here it is claimed, for the inhabitants of the
township, that the fund arising from the pro-
ceeds of the 16th section shall not be estimated
in distributing the general school fund of the
State derived from taxes paid into the State
Treasury. The Acts of the Legislature equal-
ize the amount that shall be appropriated for
the education of each scholar throughout the
the State, taking into the estimate the moneys
derived from the proceeds of the 16th section,

68 U.S.

1859.

Crosshan y. Parin.

282-285

with the proviso, that the whole of the pro-
ceeds shall be expended in the township. If
it be more than an equal portion to each scholar
elsewhere furnished by the state fund — still,
the township has the benefit of such excess,
but receives nothing from the treasury; and if
it be less, then the deficiency is made up, so as
to equalize according to the general provision.

And the question here is, whether the state
laws violate the Acts of Congress providing that
the proceeds of the 16th section shall be for the
use of schools in the townshfp. And our opin-
ion is, that expending the proceeds of the 16th
section for the exclusive use of schools *' in the
township " where the section exists, is a com-
pliance with the legislation of Congress on the
subject; nor is the State bound to provide any
aidditional fund for a township receiving the
bounty of Congress, no matter to what extent
other parts of the State are supplied from the
Treasury.

The law is a perfectly just one; but if it
were otherwise, and the school fund was dis-
tributed partially, nevertheless those receiving
the bounty from Congress have no right to call
on this court to inte^ere with the power ex-
ercised by the State Legislature in laying and
collecting taxes, and in appropriating them for
educational purposes, at its discretion.

We Jidd t/ial a true construction was given to
the Acts of Congress referred to, and order that
the judgment be afflrmed.

Cited— 94 U. S., 794.

WILLIAM CR0S8MAN, FREEMAN G.
CAREY AND WILLIAM M. P. HEWSON.
Testamentary Executors of Chables Mo-
MiCKKN, Deceased,

FRANKLIN PERIN.

(See S. C, fSt How.,28S-285.)

Where bill is denied by answer, and unsupported
by proof relief refused.

Where, in a bill of review, prayioK relief from a
decree obtained in a previous suit, the excuse
set up by the complainant, for not appearing and
defendinir the former suit, to wit : the fraud and
imposition of the defendant, was fully and oom-
pietcly denied in the answer, and wholly unsup-
ported by the proofs, and the failure to appear and
defend, for augrht that was shown, was attributa-
ble to his own neglect and inattention : held, that
the allegratioos upon which relief in the bill rest-
ed, and upon which alone a rehearing could be
If ranted in the casr, consistent with the established
practice of a court of chancery, were unsustained.

Submitted Dee, 19, 1859, Decided Jan. 3, 1860,

APPEAL from the Circuit Court of the Unit-
ed Stages for the Eeastem District of Loui-
siana.
The case is stated by the court.
See, also, reports of the case in this court out
of which this case arose.

59 U. S. (18 How.). 507; 61 U. S. (20 How.),
133.
Mr, J. P. Benjamin, for appellants.

Mr. F. Perin* in person, and Mr, L, M.
D»y» for appellee.

See 2Sl How.

Mr, Justice Nelson delivered the opinion
of the court:

This is an appeal from a decree of the Circuit
Court of the United States for the Eastern Dis-
trict of Louisiana.

The bill filed by McMicken in the court be-
low is in the nature of a bill of review, praying
relief from a decree obtained a^rainst him by
Perin in a previous suit by means of fraud and
imposition.

he suit by Perin charged McMicken with
holding, in trust for his use, a valuable sugar
plantation, situate in the parish of East Baton
Rouge, on the Mississippi River, in the State of
Louisiana; and sought a discharge of the trust
and a conveyance of the title to the complain-
ant.

The bill of review sets forth as the ground of
fraud in the decree, that after the commence-
ment of the former suit and service of the sub-
poena on McMicken, in an interview with
rerin on the subject of the suit, he agreed to
discontinue it, and prosecute the same no fur-
tiier; upon which understanding the defendant
acted, and discharged the solicitor retained to
defend it, and omitted altogether any defense;
and that in violation of the agreement, and in
fraud of the rights of the defendant, he, Perin,
proceeded with the suit in the absence and
without the knowledge of the defendant, ob-
taining the decree in question by default, de-
claring the trust, and directing a conveyance of
the plantation.

The bill of review further sets fotth that the
advances made by the complainant in the pur-
chase of the property, and the liabilities incurred
by way of raising incumbrances on the same in
securing the title, far exceeded the sum stated
hy Perin in his bill, and which he proposed to
reimburse and satisfy, and of all which he had
full knowledge, but which he fraudulently sup-
pressed and excluded from the decree, which
the complainant is Justly entitled to have al-
lowed upon setting aside the purchase and de-
claring the trust for the*beneflt of Perin.

The defendant, in his answer to the bill of re-
view, denies specifically the fraud charged
therein against him; denies that he agreed to
give up the suit, and not further prosecute the
same, or that he gave any assurances to Mc-
Micken to that effect, or which were calculated
to mislead or induce him to withdraw from the
defense, or that any such understanding existed
between the parties; but, on the contrary, since
the filing of his bill he has, at all times, insisted
upon his rights as set forth therein, and upon
the prosecution of his claim to the t>roperty.

The defendant also denies that the omission
to set forth in his bill any other sums than
those allowed in the report of the master, and
.which entered into the decree, were with a
view to an «r parte proceeding in the suit as
charged by McMicken, and denies all fraud
or concealment in respect to these accounts.

The answer of the defendant is directly re-
sponsive to the charges in the bill, and relates
to facts within his knowledge, and, upon well
settled principles of pleading, must be taken
as presenting the true state of the case, unless
overcome b^ the proofs. The complainant, in
view of this rule, has examined witnesses in
support of the allegations, but they have wholly
failed to sustain them.

259

311-353

SXTFBEMB COUBT OF THB UNTTBD 8tAT90.

Dbc. Tssm,

The bill of Perin against McMicken to en-
force the trust was filed in February, 1851.
The subpcEDa was served personally in Novem-
ber, 1852. McMicken resided in the State of
Ohio, and the service in the suit could he made
only in the State of Louisiana. The decree
pro confenso was entered in Ap''^^* ^^^* ^^^ ^^^
final decree in June, 1854. The suit seems not
to have been hurried, with any unusual speed,
to ilB final determination.

In February, 1855, a petition was presented
to the court containing, substantially, the facts
set forth afterwards in the bill of review, on
behalf of McMicken, to set aside the decree,
and to permit him to come in and defend,
w^hich, afler hearing, was denied. Whereupon
an appeal was taken to this court from the de-
cree in the suit, and also from the order refus-
ing to set aside the decree, and which were af-
firmed in December Term, 1855. 18 How.,
507: 20 How., 133.

The present bill was filed for a review of the
decree and order thus afiirmed by this court in
January, 1857. The case was heard on plead-
ings and proofs, and a decree entered dismiss-
ing the bill in November of the same year, and
is now before us on appeal.

The bill was dismissed upon the ground that
the excuse set up by the complainant, to wit :
the fraud and imposition of Perin, for not ap-
pearing and defending the former suit, was
fully and completely denied in the answer, and
wholly unsupported bv the proofs. The fail-
ure, therefore, of the defendant to appear and
defend, and his rights in that suit, for aught
that was shown, was attributable to his own
neglect and inattention.

The allegations upon which reUef in the bill
rested, and upon which alone a rehearing could
be granted in the case, consistent with the es-
tablished practice of a court of chancery, were
unsustained.

This is familiar doctrine, and is decisive of
the case.

The decree of the court below affirmed,

8. C.-59 U. 8. (18 How.), 507; 61 U. 8. (20 How.),
133.

ALEXANDER REY. WILLIAM R. MAR-
SHALL AND JOSEPH M. MARSHALL,
Partners under the Name, Style and Firm of
Marshall & Co., Plffs. in Br.,

J^MES. W. SIMPSON.
(See 8. C, 2SHow., 341-352.)

BiUsand naie»— proof of ctrcumstanees ofin/doTH-
ment, admistidle—^hen note payable to order
of one, uifir$t indorsed by another, obligation of
latter^pleading, when sufficient.

Parol proof of the attoDdiQg circumstances under
which iodorsers placed their firm name upon the
hack of the note, Is admissible under the general
issue.

When a promissory note, made payable to a par-
ticular person or order, is first indorsed by a third
person, such third person is held to be an original
promisor, guarantor, or indorser, according to the
nature of toe transaction and the understanding of
the parties.

If he put his name on the back of the note at the
time it was made, as surety for the maker, and for
his accomodation, to give him credit with the
payee* or if he participated in the consideration
lor which the note was given, he must be con-
sidered as a joint maker of the note.

If his indorsement was subsequent to the making
of the note, and he put his name there at the re-
quest of the maker, pursuant to a contract with
the payee for further indulirence or forbearance,
he can only be held as a guarantor.

If the note was intended for discount, and he put
his name on the back of it, with the understanding
of all the parties that hts indorsement would be in-
operative until it was indorsed by the payee, he
would then be liable only as a second indorser, and
as such would be entitled to the privileges which
belong to such Indorsers.

Where persons placed their names as indorsers at
the inception of the note, not as a collateral under-
taking, out as Joint promisors with the maker,
they are as much affected by the consideration
paid by the plain tilT, and as clearly liable in the
character of original promisors, as they would
have been if they nad signed their names under the
name of the other defendant upon the inside of the
instrument.

Where the plaintiff alleged, that the defendants,
whose firm name is on the back of the note, placed
it there for the purpose of becoming sureties and
security to him a<4 payee for the amount therein
specified, that allegation is all which is required by
the Code of Minnesota Territory, to maintain the
suit against defendants as original promisors.

Argtied and submitted Dec. 18, 1859. Bedded

Jan. J, 1860.

IN ERROR to the Supreme Court of the Ter-
ritory of Minnesota.

The history of the case and a full statement
of the facts appear in the opinion of the court.

Messrs. Brisbin & Bijrelow* H. Ii«
Stevens and H. W. MerrUl* for the plaint-
iff in error:

1. Marshall & Co. were not liable on the note
as guarantors. Their undertaking, whatever
it was, if regarded as a guaranty, was collat-
eral, and was within the Statute of Frauds, and
void; the same not having been reduced to
writing, expressing the consideration. The
note was simply indorsed in blank when it was
delivered to Rey, and by him to Simpson, and

Note.— Indorser before payeet licU}UUy and rUfhls
of.

With reference to the indorser before the payee,
the decisions are not uniform. The first diversity
of opinion is as to whether such an irregular indors-
er, where the indorsement was made at the incep-
tion of the note, should be held to be a Joint maker
or surety, as has been held in the Supreme Court
of the United States, or as a guarantor.

In the following instances he has been held to be
a Joint maker or surety: Killian v. Ashley, 24 Ark.,
515; Gilpin v. Marley, 4 Houst., 284; Masscy v. Tur-
ner, 2 Houst., 79; Collins v. Everett, 4 Oa., 273
(last case is by Statute); Lawrence v. Oakey, 14 La.,
«» ; Chom v. Merrill, 9 La. Ann., 533 Childs v. Wy-
man, 44 Me., 441; Leonard v. Wilds, 36 Me., 285;

200

Good V. Martin, 95, U. S. (5 Otto), 90 : Ives v. Boa-
ley, 86 Md., 282 ; Walz v. Alback, 37 Md., 404 : Hawka
V. PhiiUpj. 7 Gray, 284; Wltterwax v. Paine, 2
Mich., 559; Kothchtld v. Grix,8lMich., 150; Piersev.
Irvine, 1 Minn., 377 ; Scheider v. Schiff man, 20 Mo.,
571; Martin V. Boyd, 11 N. H., 385 (see, however.
Currier v. Fellows, 27 N. H., 389): Baker v. Robin-
son. 63 N. C, 191: Perkins v. Barstow, 6 R. I.. 507 ;
McCreary v. Bird, 12 Rich., 564; Strong v. Riker,
16 Vt., 5o7 ; Sylvester V. Downer, 20 Vt., 355.

And in the following a guarantor: Pierce v. Kea>
nedy, 5 Cal., 138; contra. Jonc^s v. Goodwin, 39 Cal.,
493; Perkins v. Catlin. 11 Conn., 212; Ransom v.
Sherwood, 28 Conn., 437; Clark v. Merriman, 25
Conn., 576; Webster v. Cobb, 17 111., 459; Knight v.
Dunsmore, 12 Iowa, 85 ; Firman v. Blood, 2 Kan.«

6S U. S.

1850.

Rby v. Simpson.

341-S52

{)arol evidence was inadmissible to vary the
egal effect of this indorsement.

This point rests mainly upon the construc-
tion to be given to the Slinnesota Statute of
Frauds, and this is a literal transcript from the
N. Y. Revised Statutes.

The construction of that Statute has been
settled in favor of the plaintiff in error.

Min. Rev. Stat., 268, sec. 281-282: 2 N. Y.
Rev. Stat., 135, sec. 2, subdivision 2; HaUy.
IfetMomb, 7 Hill. 416; l^ies v. Qilmore, 1 N.
Y.. 824; Dunham v. Minraw, 2 N. Y., 553;
Brewster, v. Silence, 8 N. Y., 207; Ems v.
Brawn, 6 Bard., 282; Waterbury v. Sinclair,
16 How. Pr., 329.

2. Marshall & Co. are not chargeable as
makers of the note in question. In support of
this propo8tion,we refer to the preceding point
and authorities cited.

If parol evidence is inadmissible to change
the contract of indorsement into a guaranty, it
is equally inadmissible to change it into an ab-
solute original promise. In so changing the
contracts, not only must the promise be sup
plied by parol, but the consideration also.

This would, in effect, be a repeal of the Stat-
ute of Frauds.

HaU V. Fa/tmer, 5 Den., 484; Bradford v.
Martin, 3 Sand., 647; Story Prom. N., sec. 134.

In England it has long been held, that not
only the promise must be in writing, but the
consideration must be expressed in the instru-
ment itself.

Wain V. WcvrUers, 5 East, 10; Saunders v.
Wakefield 7 B. &. A., 595; Morley v. Boothby,
8 Bing. , 107.

The Statute of Frauds in those States in
which the courts have dissented from the above
doctrine, is in its language essentially different
from the Statute of Minnesota.

3d. The record shows that no agreement or

contract has ever been written upon the back
of the note, other than the mere indorsement.
The indorsement is still in blank. The position
of the Marshalls is that of second indorsers
only. The note is negotiable, but they are not
the payees. There are numerous cases which
establish the rule that whenever the note is ne-
gotiable— payable to a third person or order,
and is indorsed by a person other than the
payee, he is not to be treated as an original
promisor or maker, nor yet as- guarantor, but
simply as indorser.

^dbury v. Hungenrfwd. 2 Hill, 84; HaU v.
Newcamb, 3 Hill, 283; EUis v. Brown, 6 Barb..
282; Hough v. Gray, 19 Wend., 202; 7 Hill,
416 to 426, note\ Spies v. Oamare IN. Y., 821 ;
CottrellY. ConJdin, 4 Duer, 45; Taylor v. Jfc-
(Mne, 11 Pa., 461; Orozer v. Chambers, 1
Spencer (N. J.), 256; Fear v. Dunlap, 1
Greene (Pa.), 884; Storv Bills, sec. 134.

4. The complaint is defective.

Even this child of modem improvement, the
complaint, must be sensible and state facts suf-
ficient to constitute a cause of action, or like
the somewhat discarded commonlaw declara-
tion, the party must fail. An indorsement is a
contract of transfer, by which the indorser
contracts with, and in favor of the indorsee
and every subsequent holder, and the note
must be transferable or there is no legal indorse-
ment.

Now, to enable Simpson to sue the Mar-
shalls as indorsers, they must first have been
either pavees or indorsees, and thereby been able
to transfer the note by indorsement; but the
complaint shows the reverse of this.

See Waterburyy. Sinclair, 16 How, Pr., 829.

Moreover, no case can be found under any
system of pleading, where the plaintiff has
tieen allowed to recover against the defendant
as guarantor, where the compl&int was against

406; Arnold v. Bryant, 8 Bush., 668; Van Doren v.
TJader, 1 Nev., 880; Champion v. Griffith, 13 Ohio,
288; Chandler v. Westfall, 30 Tex.. 477; Watson v.
Hunt, 6 Gratt., 633 ; Orrick v. Colston, 7 Gratt., 189.
As a guarantor. If payee so elects. Burton v. Hans-
ford, 10 West Va., 470 ; or If he write over a guar-
anty, KUIlan v. Ashley, 24 Ark., 515.

It is held In New York and some other States, that
an Indorsement of note, before Its delivery to

Sayee, will be presumed to be, in absence of^evl-
ence of the intention, for the accomodation of
payee, and is an indorsement subsequent to the
payees that indorser knew that the payee must in-
dorse note before it became operative. Such an in-
dorser cannot be held liable at the suit of the payee
or of an}' person who has taken note of payee eltner
after maturity, or with knowledge of the facts.
Coulter V. Richmond, 59 N. Y.. 478; Dale v. Moffltt,
22 lod., 114 ; Frear v. Dunlap.l Iowa, 3%, changed by
law of 1851 ; Knight v. Dunsmoro, 12 Iowa, 35 ; Ma-
rienthal v. Taylor. 2 Minn., 147; McComb v.Thomp-
Bon,2Minn., 130: Jennings v. Thomas, 13Sm. & M.,
617; Fegenbush v. Lang, 28 Pa. St., 198; Eiibert v.
Finkbeinner, 68 Pa. St.. 243; Cady v. Shepard, 12
W la., 642 : 13 Wle.. 229; 18 Wig., 554; Lester v. Paine, 87
Barb., 617 ; Bacon v. Burnham, 37 N. Y.,614 ; Phelps
V. Vtacher, 50 N. Y., 74.

As between the parties, oral evidcnoe is compe-
tent to show the circumstances of the giving of the
note, its consideration and its indorsement, and that
the Indorsement was given to give the maker credit
with payee. It is sufficient to show that it was in-
dorsed with knowledge that the indorsement was
required to gire the maker credit. Meyer v. Hib-
shcr, 47N. Y.,285; Gfroehner v. McCarty, 2 Abb.
N. C, 76; Draper v. Chase M'f g Co., 2 Abb. N. C,
79; Smith v. Smith, 37 Superior Ct, 208; Coulter v.
Richmond, 60 N. Y., 481 ; Moore v. Cross, 19 N. Y.,
227 : aothierv. Adriance, 51 N. Y., 322; Austin v.

See 22 How.

Boyd, 24 Pick., 64 ; Luft v. Graham, 13 Abb. Pr., N.
8.. 175.

If transferee knew note was indorsed before
payee overwrote his indorsement, he must, to re-
cover of the original Indorser, give the same ex-
trinsic evidence which the payee would have to
give. Phelps v. Vlscher, 50 N. Y., 74.

The Supremc'Gourt of the United States holds the
irregular indorser an original promisor, a guaran-
tor, or an indorser, according to the nature of the
transaction and the understanding of the parties.
Oral evidence is admissible to show the intent and
understanding. If the indorsement was made to
give the maker credit with the payee, or if Indorser
participated in the consideration of the note, he is to
be considered a joint maker. If the indorsement
was after the note was delivered to payee, at re-

?iuest of maker to procure further indulgence or
orbearance for the maker, he can only be held as
guarantor, and there must be legal proof of a con-
sideration to uphold the promise unless it be shown
that he was connected with the inception of the
note. If note was intended for discount, and in-
dorsement was to be inoperative until after paj'ee
Indorsed, he is liable only as second indorser. Good
V. Martin, 85 U. S. (5 Otto), 90. and cases cited ;
Arg, 1 Col., 165; 2 Col., 218; Schneider v. Schiff-
man, 20 Mo., 571; Irish v. Cutler, 31 Me., 538;
Hawks v. Phllll|>8. 7 Gray, 284 ; Piorse v. Irvine, 1
Minn., 360 ; Perkins v. Catlin. 11 Conn., 212.

Oral evidence is admissible to show when indorse-
ment was made. In at>sence of evidence, undated
indorsement will be presumed to have been made
at inception of note. Good v. Martin, 95 U. S. (5
Otto), 90; Badger V. Barnabee, 17 N. H.. 120; Mar-
tin V. Boyd, 11 N. H., 387 ; Parkhurst v. Vail, 78 111..
343 ; Cbilds v.Wyman, 44 Me., 441 ; Gilpin v. Marley,
4 Houst., 284; Massey v. Turner, 2 Uoust., 79.

261

841-^2

BUFBXICB COUBT OF THB UNITED StATBI.

Dec. Term,

him as indorser only. A guaranty is a special
contract, and must be specially declared on.

LamourieuxY, Heioett, 5 Wend., 807; MiUer
V. Qatian, 2 Hill, 188; ElUs t. Brtntm, 0 Barb.,
285.

Complaint is also defective on account of de-
fect of parties. There is no Joint cause of ac-
tion stated in the complaint against the two
Marshalls and Bey.

See AUen v. Fosgate, 11 How. Pr., 218.

The demurrer does not admit the truth of
the allegation and the complaint as to the pur-
poses for which the defendants, Marshall &
Co., indorsed the note, and of the reliance of
the plaintiff upon the indorsement; because
those allegations are not a statement of facts,
but are merely matters of law. The Code in
Minnesota requires that the complaint diould
state the facts constituting a cause of action.
Under this Statute the conclusion of law and
matters of argument are not allowed to be
stated, and the demurrer does not admit them
to be true.

See' BarUm ▼. SaekeU, 8 How. Pr.. 858; 1
Chit. PI., 218, 214 and 541; Story Eo.. PL,
sec. 452, cases cited; HaM t. BarUett, 9 Barb.,
297.

Mestrs. Joseph H. Bradley and M.
£• Amest for the defendant iii error:

If in any case it is competent to show by parol,
an agreement collateral to a bill of exchange or
promissory note in their ordinary form, the
facts admitted in these pleadings would be
such a case, as understood by the counsel for
the plaintiffs in error.

This court has settled that question in Phillips
V. Preston, 5 How., 278; but in this case, the
commercial contract of an indorser of a promis-
sory note never was complete. The indorse-
ment was made before the title had ever passed
by the indorsement of a pavee, and even before
the note had been deliverea to the payee, and it
is admitted to have been done for the purpose
of guaranteeing the payment thereot to the
payee; in such case, the party who puts his
name on the back of the paper authorizes the
payee to write over it such words as may be
necessary to embody the contract between
them, and he may be treated either as a
guarantor or as a party to the original under-
taking. The current of decision is unbroken
except where there are peculiar circumstances
to modify, not to make them exceptions.

82 Me., 339; 86 Me.. 147, 265; 1 N. H., 885;
11 N. H., 885; 7 Post., 866; 9 Vt., 345; 12 Vt.,
219; 16 Vt., 554; 17 Vt., 285; 7 Mass., 232; 9
Mass., 818; 11 Mass., 436; 19 Pick., 260; 24
Pick., 64; 24 Pick., 264;8 Met.,504;9 Cush.,
10|4; 6 Conn., 817-320; 11 Conn.. 213, 440; 13
Johns.. 175; 14 Johns.. 249 ;1 Hill. 91; 7 Hill.
422;17Wend.,214.2l5;4Watte.,448:18Penn.,
446; 9 Ohio, 39; 18 Ohio, 828; 2 McL., 558;
13 III.. 682; 1 Man., 428: 2 Mich., 555; 18 Mo.,
74, 140; 5 Ben., 871 ; 2 Gill., 830; 6 Gill., 181.
and authorities in Yellot's argument; 2 McCord,
388; 9 Tex., 615; 2 Cal., 485, 605; Story Prom.
N., sees. 457, 469, 475, 476, 579. 480.

The contract is not prohibited by the Min-
nesota Statute of Frauos. The note Itself shows
the consideration. Every man who indorses
such a paper, thereby promises to answer for
' debt, default or miscarriage of the maker."
It is a note or memorandum expressing the

268

consideration, that is, forbearance to the maker,
and is in writing by the party to be charged
Uiereon. It is a contract of suretyship, plain,
intelligible and well understood. It is put on
this note for some purpose, for the very pur-
pose which would be implied in an orainary
mdorsement, except as to the person to whom,
and for whom they are to be surety, and this may
be proved by parol.

Bateman v. Phillips, 15 East, 272.

It is conceded in the argument, that where
a person at the inception of a note not negotia-
able, indorses his name in blank on the back,
he is liable as maker, and so as to notes made
payable to bearer, or to A.B. or bearer. The
mdorser may be made liable to the payee, and
to cases of negotiable paper indorsed in blank,
after the same became due. but it is insisted
there is a distinction between such paper, and
negotiable paper.

The case of Tillman v. Wheeler, 17 Johns.,
326, relied on by the plaintiff, was a case on a
contract similar to the present, except that
there was no proof of any privity or contract
between payee and indorser, and on that
CTOund alone the court decided he could not
be held as guarantor.

It is submitted that these admissions cover
this case. At the inception of this note, the
defendants, Marshall & Co., indorsed their
name in blank on the back of this note, when
it was neitlicr negotiated to them nor by them,
and when, in pomt of fact, it was not negotia-
ble, because it was still in the hands of the
maker, and was not, and could not be negotia-
ble until it was delivered to the payee.

See authorities first above cit^.

It would exhaust the patience of this court
to present any analysis of these cases, but it
may be affirmed that they establish three propo-
sitions:

First. Whenever a man puts his name on
the back of a promissory note, whether nego-
tiable, assignable or transferable by delivery
while it is in the hands of the maker, he intends
to make himself reponsible for the default of
the maker.

Second. In some cases that responsibility is
to be worked out in favor of the payee by
writing over the name of the indorser, his
guarantee, or other form of obligation, and
Uiis may be done at any time before judgment

Third. In others, it is held (and this seems to
be the most just and rational result of all the
cases) that such an indorsement is in itself (it
being proved to have been made before the
note was delivered to the payee, and that the
note was never parted with, or indorsed by
him) a guaranty by the indorser of the pay-
ment of the note to the payee; but the form is
of little moment, and if the substance is, that
it is or can be treated as a guaranty, this court
will look to the substance and finally settle this

Suestion which has so long disturbed the ju-
icial mind of the country.

Mr. Justice Clifford delivered the opinion
of the court:

This is a writ of error to the Supreme Court
of the Territory of Minnesota.

According to the transcript, the suit was
commenced by James W. Simpson, the present
defendant, on the 2lBt day of December,

68 U.S.

1850.

Rey v. Simpson.

341-3.n2

lb55. in the District Court of the Terri-
tory, for the second Judicial district, asrainst
the plaintiffs in error, who were the original
defendants. It was an action of ctsitumpsit,
and was brought upon a certain promissory
note for the sum of $3,517. 07^. bearing date at
St. Paul, in that Territory, on the 14th day of
June, 1855, and was made payable to the order
of the plaintiff six months after date, for value
receivea. At the period of the date of the note,
as well as at the time the suit was instituted,
two of the defendants, William R. Marshall and
Joseph M. Marshall, were partners, doing
business under the style and firm of Marshall
and Co.

As appears by the declaration, the note was
made and signed by the defendant first named
in the original suit, at the time and place it
bears date.

And the plaintiff further alleges in the decla-
ration, that after making and signing the note,
the same defendant then and there delivered
the note to the other two defendants ; and that
they then and there, by their partnership name,
indorsed the same by writing the name of their
firm on the back of the note, and then and
there redelivered the same to the first named
defendant, who afterwards, and before the ma-
turity of the note, delivered it so indorsed to
the plaintiff. He also alleges that the defend-
ants, William R. Marshall and Joseph M.
Marshall, so indorsed the note for the purpose
of guarantying the payment of the same, and
of hecoming sureties and security to him, as
the payee thereof, for the amount therin speci-
fied ; and that he, relyina: upon their indorse-
ment, took the note, and paid the full con-
sideration thereof to the first named defendant.

Other matters, such as due presentment, non-
payment, and protest, are also alleged in the
declaration, which it is unnecessary to notice
at the present time, as the questions to be de-
termined arise out of the allegations pre-
viously mentioned and described.

Personal service was made on each of the de-
fendants, but the one first named did not appear ;
and after certain interlocutory proceedings,
conforming to the laws of the Territory and
the practice of the court, he was defaulted.

On the 31 St day of December, 1855, the
counsel of the other two defendants served
notice of a motion to strike out all that part of
the declaration which sets forth the purpose
for which it is alleged they indorsed the note,
and so much of the declaration, also, as alleges
that the plaintiff took the note as payee, rely-
ing upon the indorsement, and paid to the first-
named defendant the full consideration there-
of, as before stated. That motion was subse-
quently heard before the court; and on the 9th
day of Februanr, 1856, was denied and wholly
overruled. Auerthe motion was overruled,
the defendants, whose firm name is on the back
of the note, demurred specially to the declara-
tion.

None of the causes of demurrer need be
stated, as the^ will be sufiSciently brought to
view in considering the several propositions
assumed by the counsel on the one side and
the other, in the argument at the bar. bufflce
it to say. that the demurrer was overruled;
and on the 10th day of July, 1856, judgment
-was entered for the plaintiff against all of the

See 2d How.

defendants for the amount of the note, with
interest and costs.

On the 18th day of September, 1856, the de-
fendants sued out a writ of error, and removed
the cause into the Supreme Court of the Terri-
tory, where the judgment of the district court
was in all things affirmed ; and on the 4th day of
February, 1857, a final judgment was entered
for the plaintiff, that he recover the amount of
the judgment rendered in the district court,
with interest, costs, and ten per cent, damages,
amounting in the whole to the sum of $4,371.-
97. Whereupon thd defendants sued out a
writ of error to this, court, which was properly
docketed at the December Term, 1857.

All civil suits in the courts of Minnesota are
commenced by complaint; and suitors are en-
joined by law, in framing their declarations, to
give a statement of the facts constituting the
cause of action, which statement is required to
be expressed in ordinary and concise language,
without repetition, and in such a manner as to
enable a person of common understanding to *
know what is intended.

Pursuant to that requirement, and the prac-
tice of the courts of the Territory at the time
the suit was commenced, the plaintiff in this
case set forth the facts already recited as con-
tained in the complaint or declaratioiif

Facts thus stated in the declaration, pursuant
to the directions of the law of the Territorj ,
and which were material to the understanding
of the rights of the parties to the controversy,
could not. properly, be suppressed by the court.
Irrespective, therefore, of the question whether
or not the motion of the defendants to strike
out that part of the declaration was waived, be-
cause not pressed in the Supreme Court of the
Territory, no doubt is entertained by this court
that the motion was properly overruled by the
district court upon the merits.

Proof of the attending circumstances under
which the defendants, William R. Marshall and
Joseph M. Marshall, had placed their firm
name upon the back of the note, would clearly
have been admissible In a trial upon the gener-
al issue; and if so, no reason is perceived why
it was not proper for the plaintiff, under the
peculiar system of pleading which prevailed in
the courts of the Territory at the time the suit
was commenced, to state those circumstances
in the declaration. Beyond question, they were
a part of the facts constituting the cause of ac-
tion ; and if so, they were expressly required to
be stated by the law of the Territory prescrib-
ing the rules of pleading in civil cases. And
having been alleged in pursuance to such a re-
quirement, and being material to a jjroper un- '
derstanding of the rights of the parties to the
suit, it must be considered, by analogy to the
rules of pleading at common law, that they are
admitted by the demurrer.

By the admitted facts, then, it appears the
defendants. William R. Marshall and Joseph
M. Marshall, placed their firm name on the
back of the note at its inception, and before it
had been passed or offered to the plaintiff.
They placed their firm name there at the request
of the other defendant, knowing that the note
had not been indorsed by the payee, and with a
view to give credit to the note, for the benefit
of the immediate maker, at whose request they
became a party to the same.

268

144-161

SuFRfiHB COXTBT OF THB tTNITBD StATSS.

Dec. Term,

Whatever diversities of interpretation may
be found in the authorities, where either a
blank indorsement or a full indorsement is
made by a third party on the back of the note,
payable to the payee or order, or to the payee
or bearer, as to whether he is to be deemed an
absolute promisor or maker, or guarantor or
indorser, there is one principle upon the subject
almost universally admitted by them all, and
that is, that the mterpretation of the contract
ought, in every case, to be such as will carry
into effect the intention of the parties; and in
most instances it is conceded that the intention
of the parties maj be made out by parol proof
of the facts and circumstances which took place
at the time of the transaction. Story on Prom-
issory Notes, sees. 58, 59, and 479.

When a promissory note, made payable to a
particular person or order, as in this case, is
first indorsed by a third person, such third per-
son is held to be an ori^nal promisor, guaran-
tor, or indorser, accordmg to the nature of the
transaction and the understanding of the par-
ties at the time the transaction took place. If
he put his name on the back of the note at the
time it was made, as surety for the maker, and
for his accommodation, to give him credit with
the pay%e, or if he participated in the consider-
ation for which the note was given, he must be
considered as a joint maker of the note. On
the other hand, if his indorsement was subse-
quent to the making of the note, and he put his
name there at the request of the maker, pursuant
to a contract with the payee for further indul-
gence or forbearance, he can only be held as a
fuarantor. But if the note was intended for
iscount, and he put his name on the back of
it with the understanding of all the parties that
his indorsement would be inoperative until it
was indorsed by the payee, he would then be lia-
ble only as a second indorser in the commercial
sense, and as such would clearly be entitled to
the privileges which belong to such indorsers.

Decided cases are referrS to by the counsel
of the defendants, which seemingly deny that
such parol proof of the attending circumstances
of the transaction is admissible in evidence; but
the weight of authority is greatly the other way,
as is abundantly shown by the cases cited on
the other side. Whenever a written contract
is presented for construction, and its terms are
ambiguous or indefinite, it is always allowable
to weigh its language in connection with the
surrouuding circumstances and the subject-
matter, and we see no reason, as question of
principle, why any different rule should be
^ adopted in a case like the present. Such evi-
dence has always been received in the courts of
Massachusetts, as appears from numerous de-
cisions, and the same rule prevails in most of
the other States at the present time. 1 Am.
Lead. Cas.. 4th ed., 822. Repeated decisions to
the same effect have been made in the courts of
New York, and until within a recent period it
appears to have been the settled doctrine in the
courts of that State.

Recent decisions, it must be admitted, wear a
different aspect; but they have not had the
effect to produce a corresponding change in
other States, and in our view, deny the admis-
sibility of parol evidence in cases where it clear-
ly ought to be received. Hawkes v. PhUUps, 1
Gray. 284,

2«l

Applying these principles to the present case,
it is oDvious that the contract of the two de-
fendants whose firm name is upon the back of
the note was an original undertaking, running
clear of all questions arising out of Uie Statiite
of Frauds.

Thev placed their names there at the incep-
tion of the note, not as a collateral undertaking,
but as joint promisors with the maker, and are
as much affected by the consideration paid by
the plaintiff, and as clearly liable in the charac-
ter of original promisors, as they would have
been if they had signed their names under the
name of the other defendant upon the inside of
the instrument. Numerous decisions in the
state courts might be cited in support of the
proposition as stated, but we think it unneces-
sary, as they will be found collated in the ele-
mentary works to which reference has already
been made, and in many others which treat of
this subject.

Another objection to the right of recovery in
this case deserves a brief notice. It is insisted
by the coimsel of the defendants that the com-
plaint or declaration is not sufficient to maintain
this suit against these defendants as original
promisors. That objection must be considered
m connection with the system of pleading
which prevailed in the courts of the Territory
at the time the suit was commenced. By that
system, suitors were only required to state the
facts which constituted the cause of action. In
this case the plaintiff followed that mode of
pleading, and we think he has set forth enough
to constitute a substantia] compliance with the
law of the Territory and the practice of the
court where the suit was instituted. He alleges,
among other things, that the defendants,who6e
firm name is on the back of the note, placed it
there for the purpose of becoming sureties and
security to him as payee for the amount there-
in specified. That allegation, to use the lan-
guage of the Statute of Minnesota, !s expressed
in ordinary and concise language, and in such
a manner as to be easily understood, and that
is all which is required by the law of the Ter-
ritory prescribing the rules of pleading in civil
cases. Under the system of pleading which
prevailed in the courts of the Territory, the ob-
jection cannot be sustained.

The judgment of the Supreme Court of the Ter-
ritory M, therefore, affirmed wUh costs.

Denied-a9 Am. Rep., 106 (74 Ind., 629).

Cited— 95 U. S., 04 ; 6 Sawy., 101 ; 6 Am. Rep., 413
(36 Mad., 262) ; 10 Am. Rep.. 281, 268rd5 N. J. L., 517);
27 Am. Rep.. 574 (10 W. & A., 470); 27 Am. Rep., 785,
789 (1 Lea, ((49).

JOHN C. HALE, Plff. in Br.,

WILLIAM H. GAINES, and MARIA
GAINES.hisWifr; albert BELDING;
HENRY BELDING and GEORGE BEL-
DING, Heirs and Legal Representatives of
LuDovicus Beldino, Deceased.

(See S. C 22 How., 144-161 J

ErUry, evffident to sueiain ejectment in Arkan-
sas— A«to Madrid certificate — plaintiff m^ist
claim right under Act of Congress, to giae this
court jurisdiction — claim of defendant, in
answer, not sufficient.

68 U. S.

1859.

Hale y. G^AmBd.

144-iei

Where the plaintiff below derived his title througrb
a preemption claim, as an occu pant u nder the Acts
of Congress of 1830 and 1832, this entry was held to
be valid by the state courts of Arkansas, and a
suflQolent lesr&l title to sustain an action of eject-
ment.

Where the defendant relied on a survey made in
June, 1838, founded on a New Madrid oertiticate ;
held, that until the survey was presented to the
recorder of land titles at St. Louis, and reooffnized
by him as proper and valid, it could have no force,
as this was the only mode of location contemplated
by the Act of 1815.

She New Madrid survey of 1838 was altosrether in-
[d, and properly rejected bv the state courts.

The plaintiff in error must claim for himself some
UUo, ri^ht, privilegre, or exemption, under an Act
of Conarress, &c., and the decision must be against
his claim, to grive this court Jurisdiction.

AMeginff a title in the United States, by war of
defense, is not claiming: a personal interest afrect-
lug the subject in litigation, within 25th section of
the Judiciary Act.

Argued Dec. 16, 1869. Decided Jan. 9, 1860.

IN ERROR to the Circuit Court of the State
of Arkansas.

This was an action of ejectment brought in
the Circuit Court of Hot Springs County, Ar-
kansas, by the defendants in error, to recover
possessidn of a certain quartier section of land,
being the tract on which the Hot Springs are
located.

The trial resulted in a verdict and judgment
in behalf of the plaintiffs for the recovery of the
land in question, and $500 damages, with costs.
This judgment was affirmed on appeal by the
Supreme Court of Arkansas, except as to the
damages, which were then remitted; where-
upon the defendant sued out this writ of error.

A further statement of the case appears in
the opinion of the court.

Mr. Fred P, StaAton* for plaintiff in er-
ror:

The title of Belding's heirs.

The plaintiff below claimed under Ludovicus
Belding. who occupied the land in 1829 and
1830 as a tenant of John Percifull. This state
of facts presents the question whether, under
the Acts of 1880 and 1832, a person can occupy
the relation of tenant to another, and vet be a
'* settler and occupant of pubUc lands, so as to
be entitled to the nght of preemption.

If it be said that the plaintiff in error is con-
cluded by the decision of the Land Office allow-
ing the entnr, we reply that the Act of 1880 re-
quires proof to be made to the satisfaction of
the Register and Receiver; but these officers
differed as to the tenancy, and the question
was decided by the Secretary of the Inter-
ior. The entry was allowed by the order of
the Secretary.

See LyUe v. Arkansaa, 9 How., 814; Wilcox
V. Jaekion, 18 Pet., 513; 3d vol. Opinions,
Atty-Gen., 96.

We insist that the entry made by the tenant
against his landlord was a fraud, not only upon
the Preemption Law, but also upon the real set-
tler. If, for>a reason, the entry ought to have
been allowed to Hale instead of to Belding's
heirs, the former is entitled to keep possession,
notwithstanding the erroneous action of the
Secretary of the Interior. In order to deter-
mine this question, the facts must be examined;
but the court below excluded all the facts.

See Boss v. Barland, 1 Pet., 65; Stoddard v.
Chambers, 2 How., 318.

The Act of 1814, already referred to as the

See 22 How.

foundation of Hale's title, relates back to the
Act of Feb. 5, 1813.

Stat- at L., 2d vol., 797, 798.

These earliest among the preemption laws
have no prohibition against a sale or transfer
of the right derived under them, and hence
such transfers were always treated as valid un-
till subsequent laws made them null. The
record shows Hale*8 title to be regularly derived
from John Percifull, who settled on the land in
1812, and continued to occupy it for many
years afterwards.

Although in 1814 the land in question was
in the County of Arkansas, one of the organ-
ized counties of the Missouri Territory, and
therefore supposed to be subject to settlement
find preemption, the General Land Office sub-
sequently held the contrary, because the Indian
title had not Uien been extinguished. By the
Treaty with the Quapaw Indians, made JS^ov.
14, 1824, the land was ceded to the government.

The Reservation Act above quoted was passed
April 20, 1832.

The Riemedial Act for the benefit of preemp-
tioners under the Act of 1814, was passed
March 1, 1843 (5 Stat., 603). and as everything
depends on the construction of this law, it is
deemed proper to quote it at large, as follows:

An Act to perfect the title to lands south of
the Arkansas River, held under the New Mad-
rid locations and preemption rights under the
Act of 1814.

Be it enactev, &c. , that the locations here-
tofore made of warrants issued under the Act
of Feb. 17, 1815, entitled '• An Act for the re-
lief of the inhabitants of the late Countv of
New Madrid who suffered by earthquakes,"
which were made on the south side of the Ar-
kansas River, if made in pursuance of the pro-
visions of that Act in other respects, shall be
perfected into grants in like manner as if the
Indian title to the lands on the south side of
said river had been completely extinguished at
the time of the passage of said Act.

Sec. 2, ** Ana be it further enacted, that in
all cases in which the locations so made, &c. ,
may have been sold, &c., the owner of the war-
rants, &c. , shall have a right to entor other
lands, &c."

Sec. 3. " And be it further enacted, that
every settler on the public lands south of the
Arkansas River, shall be entitled to the same
benefits accruing under the provisions of the
I^eemption Act of 1814, as though they had
resided north of said river."

Sec. 4. " And be it further enacted, that all
Cherokee preemptions which have been or
may be located ♦ ♦ ♦ ♦ ♦ south of the
base line in Arkansas, shall be confirmed, and
patents shall issue as in other cases."

The Indian title to the lands north of the Ar-
kansas River had been extinguished by the
Treaty with the Osages, made Nov. 10, 1808.

7 Stat., 107.

In view of the rights of a bona fide settler on
the Hot Springs tract ih 1814, does the Act of
1843 repeal the Reservation Act of 1832? The
department holds the negative. Yet it is be-
lieved that the repugnance of the two statutes
is such that they cannot be construed to stand
togeUier.

Not only the title, but the whole scope of the
law indicates that the purpose of Congress

266

144-161

SXTFRBHK COTTRT OF THE UntTKD StATRS.

Dec. Term,

was to remove the difficulty arising from the
Indian title resting on the lands south of the
Arkansas in 1814, and subsequently. . As a
historical fact bearing on this point, the court
is referred to the report of the committee which
introduced the bill into the Senate.

Sen. Rep. No. 36, 2d sess. 27th Cong.

The Act of 184B intended to confirm the pre-
emption rights south of the Arkansas River ab
initio — that is to say, it intended to place the
preemptor in the position he would have oc-
cupied if the Indian title had been previously
extinguished. That Indian title was the only
obstacle, and the professed object of the Law
of 1843 was to remove that obstacle, to cure
that defect of title, and to give full force and
effect to the Law of 1814,south of the Arkansas
as well as north of it.

**A remedial Act shall be so construed as
most effectually to meet the end in view, and
to prevent a failure of the remedy."

Dwar. Stat., 614.

*' Beneficial statutes, therefore, have always
been taken and expounded vUra the strict let-
ter, but not, it is well and wisely said, contra
the letter."

Dwar. Stat., 628.

" Every affirmative statute is a repeal of a
precedent affirmative statute, where its matter
necessarily implies a negative; but only so far
as it is clearly and indisputably contradictory
and contrary to the former Act * in the very
matter,' and the repugnancy such that the two
Acts cannot be reconciled; for then Uge$ poa-
teriores priores contrariaa abrogant."

Dwar. Stat., 630 and 581, and authorities
there quoted.

The enactment of 1848 is, "that every settler
south of the Arkansas shall be entitled. John
Percif ull was one of those settlers, and he is
included in the very words of the law, as much
so as if the settlers had been enumerated and
called by name. The Hot Springs were re-
served in 1832, but John Percif ull was settled
there in 1814. The repugnance of the two
laws is " in the very matter;" they cannot stand
together.

Against this construction have been quoted
Wilcox V. Ja4:kson, 18 Pet., 618, and U. 8. v.
Gear, 3 How., 120. Of these the latter alone
deserves consideration, having an apparent ap-
plication to the case in hand.

In the case of Oear, a lead mine was dis-
covered by preemption, upon the ground that
all the lands in a certain district were directed
to be sold by a law passed in 1834, which law
made some special exceptions, but did not ex-
cept lead mines. This court held that the gen-
eral Law of 1807, which reserved all lead mmes
and salt springs from sale, was operative in the
district mentioned, notwithstanding the broad
terms of the Law of 1884.

The facts in this case are almost the reverse
of those now before the court. The Act of 1807
was a general law reserving all salt spring and
lead mines. On the other hand, the Act of
1832 was a special reservation of an isolated
exceptional tract of land, which at that time
was already occupied by a settler.

The Act'of 1884, in Gear's case, was an Act
of ordinary legislation, establishing a new dis-
trict for the sale of lands.

On the contrary, again, the Act of 1848 was

266

a special Act, designed to operate retrospect-
ively upon a specified class of settlers, and to
confirm a certam number of preemptions from
their inception in 1814.

In the Oear case, the law might very rea-
sonably be understood to mean '*all the lands
in this district shall be sold as far as the general
policy of the laws allow such sales, and no
further." In the present case it would b e nec-
essary to interpolate in the law, words of ex-
ception, thus: ''Every settler on the public
lands south of the Arkansas River," except
the old pioneer John Percif uU, shall be entitled.
&c. ; the remedial policy of curing the defects
of title under the Act of 1814 shall not have
its full effect; it shall cure every body's title ex-
cept John Percif uirs.

Finally, in the one case, the general reserva-
tion was made long before the party had per>
formed any act out of which his claim arose;
in the other case, the act of settlement was
performed long before the reservation, and the
remedial Act comes afterwards to recognize the
meritorious character of the original Act, and
to remove an obstacle which prevented its
operation at the time.

There is not a single argument used by the
majority of the court in Gear's case which
has any bearing whatever on the present con-
troversy.

Qucere. Does the case of Gear v. 77ie U. S.
establish anything more than this: that a sub-
sequent law directing lead mines to be sold,
does not so far repeal the Act of 1807 as to make
such mines subject to settlement and pre-
emption?

It has been already stated, that the Reserva-
tion Act of 1832 presents a similar difficulty in
the way of the Belding title under the Act of
1880, and the supplementary Act of July 14,
1882, but there is this difference in the two
cases: the two Acts — that of the 20tli April
and that of the 14th July, 1832 — were passed
at the same session of Congress, and of course,
according to the established rule of construc-
tion, must have a much more intimate relation
than the Acts of 1832 and 1843. Inasmuch as
Belding had acquired no right under the Act of
1880, the Reservation Act of April might well
be considered as an exception from the terms
of the Act passed in July following.

Unless this Act of 1843 be construed to repeal
the Reservation Act of 1832, it is admitted that
no right accrues under the Act of 1814. The
Land Office having uniformly maintained the
existing validity oi the Act of 1832, the parties
to this record were never in a condition to
make proof of their right to the satisfaction of
the Register and Receiver. In 1851, the Secre
tary of the Interior authorized an investigation,
ana it was then that he allowed the heirs of
Belding to make their entry as stated above,
although he still insisted that the land was re-
served from sale or entry by the Law of 1833.

If the Register and Receiver oonstitute a ju-
dicial tribunal, from which there was no appeal
under the laws of 1814 and 1830, then both
parties stand upon precisely the same footing;
nor can it be of any importance that the Secre-
tary of the Interior has undertaken to pro-
nounce in favor of the one and a^nst the
other. It was not his province to decide at all.

All the latter preemption laws provide for

6IK U.S.

1859.

Hale y. Gainbs.

144-161

an appeal to the commissioner and finally to
the S^retary. In the absence of any appellate
power, the general principle of law applicable,
would pronounce the divided opinion to be
equivalent to an adverse deciAion.

But it may be that the Register and Receiver,
or either of them, have been so grossly partial
or so plainly regardless of credible testimony,
as to give evidence of actual fraud. Is the
false decision of the Register and Receiver in
such a case to preclude K>rever the just claims
which have been either corruptly or capriciously
ignored?

In the case of Gunninffham v. Ashley, 14
How., 377, the Register and Receiver had not
acted on the proof at all ; vet it was held that
the proof ought to have been satisfactory to
them, and this court decreed in favor of the
preemption. What is the distinction between
refusing to hear proof at all, and refusing to
give it a fair and rational bearing upon the
rights of parties? Accordine to the principle
laid down in LytU v. Arkansas, it is only
when the register and receiver *' act within
the law, and the decision cannot be impeached
for fraud or unfairness," that '* it must be con-
sidered final."

In the cases quoted, however, the legal title
had passed from the United States, and was in
litigation between the parties. Xo such ques-
tion is now presented to this court. Neither
party to the record has the legal title; that still
remains in the government. The utmost result
of the present proceeding will be to transfer
the mere possession from one party to the
other, without any power on the part of the
court to compel the issuance of a patent. If,
however, the jurisdiction be such as to authorize
the court to determine the possession according
to the equitable rights of the parties under all
the Acts of Congress, there can be no doubt
that the Department will recognize and act
upon the decision.

If the case is still in that condition which ad-
mits of doing justice through the action of the
executive ofllcers themselves, even undoing all
that may have been improperly done, surely
the court will not hesitate to leave the naked
possession with that party which has the supe-
rior equity and is entitled to remain on the
land.

The court below refused to hear any testi-
mony, either to invalidate the entry made by
Beldin^'s heirs or to establish the pre^iiiption
right of John PercifuU. No opportunity was
given to prove fraud which would make void
the title of the plaintiffs below. The case must be
sent back in onier that the material facts may
be determined by a jury.

Ths New Madrid Location.

This was not merely an outstanding title.
Hale had purchased a portion of that interest,
and produced it in his own right as a defense
to the action. All testimony on this point was
excluded, although all formal objections to
the New Madrid certificate and survey were
waived.

Attorney- General Reverdy Johnson thought
this New Madrid location good and valid.

5 vol. Opinions, 287.

Gushing thought the contrary.

Bee his Opinion, 80th August, 1854

See 22 How.

Messrs. H« Blayf R. J. Brent and Geo.
C. WatkinSf for defendants in error:

This court has only jurisdiction to examine
into the title of the plaintiffs in error so far as
it is derived under an Act of Congress, which
has been misconstrued by the Supreme Court
of the State of Arkansas, to the prejudice of
the plaintiffs in error. It has no authority to
decide whether the title of the defendants in
error was properly maintained by the court be-
low; in other words, the only question is. in
what respect the court below erred in deciding
that the plaintiffs in error had no title under
the Acts of Congress.

Miller Y. Nie?u)Us, 4 Wheat., 811; Davis v.
Packard, 6 Pet., 41; WUliams v. Norris, 12
Wheat., 117; Crowellv. RandeU, 10 Pet., 868;
Mackayv. DiUon, 4 How., 421; Cliouteau v.
Eckhart, 2 How., dU;PoUard v. Kibbe, 14 Pet.,
358; Gity of Mobile v. Eslava, 16 Pet., 234;
Menard y. Aspasia, 5 Pet., 505; Matthews v.
Zane, 7 Wheat., 164.

2. The plaintiffs in error must derive title to
themselves under the New Madrid warrant,
and they have failed to do so. It is not enough
to show outstanding title in somebody else
under that claim.

doings v. Norwood, 5 Cranch, 344; Fisher
V. Cockerell, 5 Pet., 24S; Henderson v. Tennes-
see, 10 How., 311.

In this case it does not appear by the record
that Francis Langlois or his legal representa-
tives ever made the location of the New Mad-
rid grant, but the same was located by Ham-
mond and Rector, 27th Jan., 1819; but the title
of these locations is not sufficiently shown by
t^e exhibits in the record, nor does it appear
that the original grant in lieu of which this
New Madrid certificate issued, was ever sur-
rendered to the government, nor is there any
proof of the New Madrid grant itself, but the
secondary proof relied upon shows that this
New Madrid grant was located prior to any
public survey.

3. As to the New Madrid grants without
patent, they confer no legal title, and the courts
of the United States must disregard these equi-
table claims.

See 21 How., 481.

They must be located on lands then author-
ized to be sold, and they must be located with-
in one year from 26th April, 1822.

21 How., 426.

In this last case the entry was in 1818, and
the patent in 1827; but as the land was not au-
thorized to be sold in 1818 when located, both
title and patent were held void.

The counsel for the defendants in error cites
the following decisions under the New Mad-
rid Acts:

Lessieur v. Price, 12 How., 60; Barry v.
Gamble, S How., 51; BagneU v. Broderick, 18
Pet., 486; Cabunne v. LindeU, 12 Mo., 184;
Wear v. Bryant, 5 Mo., 160; Kirk v. Green,
10 Mo., 263: MitcheU v. Tucker, 10 Mo., 262;
Rector v. Welsh, 1 Mo., 288; KenneUv. Cole,
Co. Ct. 13 Mo., 140.

The counsel reviewed Langlois' claim, and
stated the following objections to it:

1. On the subjects that application was
made to the Surveyor- (General of Missouri for
a survey, on Jan. 27, 1819, and a survev made
on July 16, 1820.

144-161

SUPBKMB COUHT OV THB tjNtTBD StAT&A.

Dec. Tkrm,

{a) The application was not the location. The
survey was not the. location. The location was
not made so as to become the inception of the
title, until returned to the Recorder with plat,
notice, &c., and approved by him, and record-
ed, &c.

BagrMv, Broderick, 18 Pet., 486; Barry v.
OanMe, 8 How., 61; Lemeur v. Price, 12
How., 60, above cited.

(5) The Indian title was not extinguished at
the time of the passage of the New Madrid
Act. The tract of countir was not public
land, the sale of which, in the language of the
Act of Feb. 17. 1815, is authorized by law.

Bee 7 U. 8. Stat, at L., 176; GaiuM v. Nich-
olson, 9 How., 865;/S0attv. Sandfwrd, 19 How.,
404.

The Indian right of possession is sacred, and
cannot be disturbed without their consent.

Opinion of Mr. Wirt, 2 Ins. and Opin., No.
100, p. 58; No. 25. p. 28; Opinion of Mr.
Butler, 2 Ins. and 0pm., No. 54, p. 814; No.
69, p. 91; see, also, 2 Ins. and Opin., .No. 10,
p. 10; No. 11, p. 11; No. 12, p. 18; No. 23, p.
26; No. 787, p. »16.

(0) At the Gate of the supposed location, the
lands in question were not authorized to be sold.
The lands had not been surveyed. The loca-
tion could, under the most liberal interpreta-
tion of the law. only be made on lands au-
thorized to be sold at the time of location.

See MiU$ v. Stoddard, 8 How., 865; Stoddard
V. Chambers, 2 How., 284; Barry v. OanMe,
8 How., 58.

The case of Easton v. SaLOmry, 23 Mo. , 100,
is predicated upon these decisions, and is a
strong authority to the effect that a New Mad-
rid location is void when made upon land re-
served from sale by reason of its being covered
by a Spanish claim.

(d) At the time of the supposed survey in
1820, there was no authority for locating a
New Madrid claim in the Territory of Arkan-
sas, which had been organized by the Act of
March 2, 1819.

(e) The survey is not evidence of title; it is
only of the steps in which the claimant is the
actor. The evidence of title docs not remain
in the office of the Surveyor-General, or eman-
ate from it. The patent certificate, when is-
sued by the recoraer, is the evidence upon
which ejectment is to be maintained.

All the foregoing objections are but a base-
less fabrication, resting upon a mere supposi-
tion. There never was a survey, or what is
the same thing, there is no evidence of it.

No title passes under the patent certiticate,
so called, for June 16, 1838.

1 . Because, after the admission of Arkansas as
a State, in 1836, there was no authority in the
Surveyor-General of Arkansas to order a sur-
vey in 1837, or for one to be made in 1838 or
returned to the Recorder of Land Titles of Mis-
souri.

2. Because, by the Act of April 26, 1822,
the time for making locations had absolutely
expired, and never was extended, except in a
qualified manner, for 18 months, by Act of
March 2, lo31, in a particular class of cases,
of which this is not one.

8. Because the land had been reserved by the
Act of April 20, 1882.
4. Because the land was appropriated on,

268

and by the Act of May 29, 1830, by means of
the Belding preemption.

The junior certificate on the elder right is
superior to the senior certificate on the junior
right. The inception of title governs.

9 How., 234; 6 Smedes & AL, 789;6 Cranch,
234; 4 Wheat., 488; 9 Cranch, 164; 3 Scam.,
79,839; 16 Ark., 9,434.

Mr, Justice Catron delivered the opinion
of the court:

A contest for the ownership of the Hot
Springs, in Arkansas, has been pending for
some years before the General Land Office, and
in the courts of that State. One partjr derived
their title through a preemption claim, as an
occupant under the Acts of Congress of 18S0
and 1832, and the other by the location of a
New Madrid warrant on the same land.

In December, 1861, the heirs of Belding were
allowed to enter the quarter section, including
the springs. This entrv was held to be valid
by the state courts, and to clothe them with a
sufficient legal title to sustain an action of eject-
ment, according to the laws of Arkansas. They
held the decision of the Register and Receiver,
in favor of the occupant claimants, to be conclu-
sive evidence of title, as against all persons
who could not show a better opposing claim.

As between the titles of the United States and
Belding's heirs, the state courts did not decide;
but only, Uiat the outstanding title in the
United States could not be reliea on by the de-
fendant in this action ; nor is the validity of the
entry of Belding's heirs drawn in question in
this court.

The defendant relied on a survey made in
June, 1838, founded on a New Madrid certifi-
cate for 200 arpents.

To support this survey, an application was

Sroduced, dated 27th January, 1819, signed by
. Hammond and Elias Rector, addressed to
William Rector, surveyor of the public lands,
&c., asking to have surveyed and to be allowed
to enter the Recorder's certificate for 200 arpent«.
granted by him to Francis Langlois. or his
legal representatives, and dated the 26th No-
vember, 1818 (No 467). The survey to be
made in a square tract ; the lines to correspond
to the cardinal points, and to include the Hot
Springs in the center. In 1818, the spring was
in the Indian country, to which, of course, no
public surveys extended. And as the Act of
1815 (8 Stat, at L., 211), providing for New
Madrid sufferers, only allowed them to enter
their warrants on lands "the sale of which
was authorized bv law," the unsurveyed lands
could not be legaJly appropriated; and. of ne-
cessity, the Surveyor General disregarded the
application to have a survey made for Lang-
lois. And thus the claim stood from 1818 to
1838.

The defendant offered in evidence the certifi-
cate of a private survey of the claim of Langloia,
made by James S. Conway, D. S., dated July
16th, 1820, which includes the spring. This
paper the court also relected.

Until the survey on Langlois' claim was pre-
sented to the Recorder of Land Titles at St.
Louis, and recognized by him as proper and
valid, it could have no force, as this was the
only mode of location contemplated by the Act
of 1815 (8 Stat, at L., 211). So it has been

68 U.S.

1859.

Nel&on v. LsLAin).

48-56

unifonnly held. Bctgnell v. Broderick, 18 Pet.,
436; Lemeur v. Price, 12 How., 9.

The Act of April 26th, 1822» validated loca-
tions of New Madrid certificates then existing,
aDd which had been made in advance of the pub-
lic surveys; but the 2<1 section of the Act de-
clared that future locations should conform to
the public surveys, and that all such warrants
should be located within one 3'ear after the pas-
sage of the Act.

As the public surveys then existing in Mis-
souri and Arkansas Territory were open to sat-
isfy these claims, there was no difficulty in
complying with the Act of 1822 (3 Stat at L.,
668).

Reliance is placed on the Act of Congress of
March, 1848 (5 Stat, at L., 608), to maintain the
survey of 1838, of the New Madrid certificate.
That Act provides, that locations before that
time made on New Madrid warrants, on the
South side of Arkansas River, if made in pur-
suance of the Act of 1815 (3 Stat, at L., 211) in
other respects, shall be perfected into grants,
in like manner as if the Indian title to the lands
on the south side of the river had been com-
pletely extinguished at the time of the passage
of said Act of 1815. The Act of 1843 (5 Stat.
at L., 603) does not apply to the survey and
location of Langlois made in 1838, for several
reasons:

1st. The sale of the land thus surveyed was
not authorized by law ; the Act of April 20th,
1832 (4 Stat, at L., 505), having reserved from
location or sale the Hot Springs, and four sec-
tions of land including them as their center.

2d. The attempted location was void, because
barred by the Act of 26th April, 1822 (3 Stat.
at L. , 668). which Act was not repealed or modi-
fled by the Act of 1843. This Act referred to
locations made on the south of the River Ar-
kansas, of lands regularly surveved and subject
to sale, and which locations had been made on
or before the 26th April, 1823, when the bar
was interposed.

We are of opinion that the New Madrid sur-
vev of 1838 was altogether invalid, and prop-
erhr rejected by the state courts.

It has been earnestly pressed on our consid-
eration, that the entry of Belding's heirs is also
void, because the land it covers was not sub^
ject to entry by an occupant claimant, or any-
one else, after the Act of April 20th, 1832 (4
Stat, at L. , 505), had reserved it from sale.

Admitting it to be true, that the Act of April.
1832(4 Stat, at L., 505), was passed when no
individual claimant had a vested right to enter
the land in dispute, still the 25th section of the
Judiciary Act only gives jurisdiction to this
court in cases where the decision of the state
court draws in question the validity of an au-
thority exercised under the United States, and
the decision is against its validity. Here, how-
ever, the decisidn was in favor of the defend-
ant's entry, and sustained the authority exer-
cised by the Department of Public Lands, in
allowing Belding's heirs to purchase. More-
over, the plaintiff in error is not in a condition
to draw in question the validity of Belding's
entry. He relies on an outstanding title in the
United States to defeat the action. Being a
trespasser, without title in himself, he cannot
be heard to set up such title. ** To give juris-
diction to this court, the party must claim for

See 22 How.

himself, and not for a third person, in whose
title he has no interest." Henderson v. TennM-
see, 10 How., 828. The plaintiff in error must
claim (for himself) some title, right, privilege
or exemption, under an Act of Congi^, &c.,
and the decision must be against his claim, to
give ti^is court jurisdiction. Setting up a title
in the United States, by way of defense, is not
claiming a personal interest affecting the sub-
ject in ntigation. This is the established con-
struction of the 25th section of the Judiciarv
Act. Montgomery V. HerrutndiiA^ Wheat., 182.

If it was allowed to rely on the United States
title in this instance, the right might be decided
against the government, where it was no party
and had not been heard.

A claim is set up in defense, that John Perci-
f ull was entitled to a preference of entry under
the Act of 1814 (8 Stat, at L., 121); which Act.
it is insisted, was revived by that of 1848 (5
Stat, at L., 608), sec. 8. Suppose that Perci-
full's right to appropriate the land in dispute
was undoubted, and that the Register and Re-
ceiver had allowed the heirs of Beiding to enter
wrongfully ; still, the courts of Arkansas, in
this action of ejectment, had no right to inter-
fere, and set up Percif uU's rejected claim.

But this is of little consequence, as, when
the Act of April, 1832 (4 Stat, at L., 505), was

Passed, reserving the Hot Springs from sale,
'ercif ull had no vested interest in the land that
a court of justice could recognize. Then, the
United States Qovemment was the legal owner,
and had the power to reserve it from sale; so
that the offer to purchase in 1851, under the as-
sumed preference to entry claimed for Perci-
fuU, was inadmissible. Had the entry been
allowed, in face of the Act of Congress, such
proceeding would have been merely void.

Tfiesebetna the only questions within our juris-
diction worthy ofconstderation in the causes Nos,
15, 16, 17, 18 and 19, U is ordered that tits re-
speetive judgments rendered therein, by the Su-
preme Court of Arkansas, be affirmed.

Cited- 91 U. 8., U4 ; 9S U. 8., 713 ; 87 Cal., 403, 608.

STEPHEN O. NELSON, ELLISON BLACK
SMITH, HENRY C.WALKER and THOS.
A. NELSON, Partners under the Firm of 8.
O. Nblson & Co., Appts,,

«.

LUCIUS C. LELAND, JOHN H. COOKE,
DUNCAN C. WILLIAMS and McRAE,
COFFMAN & CO., Claimante of the Steam
er Brigadieb Gbnbbal R. H. Stokbs.
(See S. C, 22 How., 4S-56.)

Collision between flat boat and steamer— whet^
both boa^ in fauU, damages and costs divided
— admiralty jurisdiction

In case of ooUislon on the Yazoo River, between
flat boat and steamer, held that the flat boat was in
fault. It should have had steadv and flxed lights,
and occupied near the shore of the river, giving- a
sufficient passaxe to the ascending steamboat, and

Note.— CoQision. Rights of steam and taUing ves-
sels with reference to each other, and in 'pasting aand
meeting. See note to St. John v, Patne, 61 U. 8. (10
How.), 557.

269

48-56

BUFBBMB COXTBT OV THB UkITBD STATBS.

D£C. Tkbm,

kept on a straight line of the water and not In a
diajronal oourse.

There was also fault In the steamer. Seeing the
light ahead the master should have stopped his
boat at once, and reversed her wheels, until the
locality of the light was clearly ascertained. He
could naved backed his boat, until he avoided the
flat boat.

In cases where both boats are in fau1t,the damages
' and also the costs* must be divided between them.

The admiralty Jurisdiction applies to ail na\'iga-
ble waters, except to a commerce exclusively with-
in a State.

Argued Jan, 5, 1860. Decided Jan. 16, 1860.

APPEAL from the Circuit Court of the United
States for the Eastern District of Louisi-
ana.

The libel in this case was filed in the District
Court of the United States for the Eastern Dis-
trict of Louisiana, by appellants, against the
steamer Brigadier- General R. H. Stokes, to re-
cover damages resulting from a collision. The
claimants first pleaded to the jurisdiction, and
then denied that the steamer was in fault. The
district court entered a decree in favor of the
libelants, for $7,616.44. with five per cent, in-
terest and costs. The circuit court, on appeal,
held that the admiralty court had no jurisdic-
diction, and reversed this decree; whereupon
the libelants appealed to this court.

A further statement of the case appears in
the opinion of the court.

April 9, 1858, ** Mr. Gillet, of counsel for
the appellees, moved the court to dismiss this
appeal on the ground of a want of jurisdiction
originally in the district court, on considera-
tion whereof, it is the opinion of this court
that the question of jurisdiction in the lower
court is a proper one for appeal to this court,
and for argument when the case is regularly
reached, and that this court have juri^iction
on such appeal; whereupon it is now here
ordered by the court, that the motion to dismiss
this appeal on that ground be, and the same is
hereby overruled. Per Mr. Chief Justice
Taney.

Mr. Albert Pike* for appellants :

The limits of the admiralty jurisdiction of the
courts of the United States under the Constitu-
tion, are not those of the admiralty jurisdiction
in England. The grant in the Constitution ex-
tending judicial power " to all cases of ad-
miralty and maritime jurisdiction, " is neither
to be limited to, nor interpreted by, what were
cases of admiralty jurisdiction in England at
that d&y.

Wanng v. Clarke, 5 How., 441 ; JV. J. Steam
Nat. Co. V. Merehanta* Bank, 6 How., 844;
Newton v. Stebbins, 10 How., 586.

It was within the constitutional power of
Congress to enact that this jurisdiction should
extend to the great fresh-water lakes and the
rivers connecting the same.

Ths Oenesee Chief, 12 How., 443; see, also,
The Vengeance, 8 Dall., 297; The Beteey, 4
Cranch. 443.

The Etdmiralty jurisdiction extends upon our
great navigable rivers above tide-waters, in the
absence of any law of Congress extending the
jurisdiction ; and under the Constitution itself.

Tfie Genesee xjhief, 12 How., 443; Fretz v.
BuU, 12 How., 468: Gaslee v. 8huie, 59 U. S.
(18 How.). 463; Oulbertson v. The Southern
BeOe, 59 U. ». (18 How.), 584.

270

Messrs. R. H« CMllet and C* Cnahing^t

for appellees:

Congress can confer no broader jurisdiction
than is authorized by the Constitution.

Marbury v. Madison, 1 Cranch, 187; U. 8. ▼,
Tale TSStd, 13 How., 52, note.

The language of the Constitution must be
construed to mean what it did at the time it
was written

Cathcart v. Robinson, 5 Pet., 264, 280: FlateWs
case, 8 Watts & S., 197; Ex parte WeUs, 59 U.
8. (18 How.), 307, 311.

At the time of framing the Constitution, the
words *' admiralty and maritime jurisdiction**
had a distinct legal meaning, as much as the
words ''judicial power."

U. 8. V. Ferreira, 13 How., 40; De Lovio ▼.
Boa, 2 Gall., 898, 471.

In law, at the date of our Constitution, navi-
gable waters extended no further than the tide
ebbed and fiowed, and from the last bridges
seaward.

Ex parte Jennings, 6 Cow., 518, 528; Hooker
V. Ctfmmings, 20 Johns., 90, 99; Faliner v.
Mulligan, 8 Cai., 307; Adams v. Peojte, 3
Conn. , 481 ; Ingraham v. Wilkinson, 4 Pick. ,268.
272: Berry v. Carle, 8 Grecnl., 269, 274; Caics
V. Wadlington, 1 McCord, 582; Commonwealth
v. Chapin, 5 Pick., 199; MUesv. Rose, 5 Taunt.,
705; King v. The ln?iabitants of Eanwood, 2
Doug., 439.

The Act of 1845, extending the admiralty
jurisdiction to the lakes and navigable waters
connecting them, distinctly recognizes this
view

5 Stat, at L., 726.

This court had then settled the law and the
country was acting under it, as the following
cases will show :

The Thomas Jefferson, 10 Wheat.. 428; Pey-
roux V. Howard, 7 Pet., 324; Waring v. Clarke,
5 How., 441; The Orleans v. Phosbus, 11 Pet.,
175, 183; U. S. v. Coombs, 12 Pet., 72, 76.

The Act of 1845 did not alter the law except
as to the lakes and their connecting waters, if
in fact it altered it there.

If the territorial jurisdiction is not bounded
by the ebbing and flowing of the tide, then it
is not and cannot be limited by any definite
boundaries.

This case is not within the ruling of Th^
Oenesee Chief, and therefore must be dismissed.

12 How., 443, 458.

The steamer in this case is not averred to
have been enrolled and licensed for the coast
ing trade, nor engaged in a commerce between
different States and Territories. It is excluded
by the express words of the decision in the case
of T/ie Oenesee Chief; and without now revok-
ing that decision, this court must decree that it
has no jurisdiction over it, and therefore must
dismiss it.

Further argument of counsel to the merits of
the case, being confined to the facts involved, is
not here given.

Mr. Justice McLean delivered the opinion
of the court:

This is an appeal in admiralty from the Cir-
cuit Court of the United States of the Etastem
District of Louisiana.

The libelantfl allege that they were the con-
signees of a certain flat boat called '* Clear the

68 U.S.

1859.

Nelson v. Leland.

48-56

Track," and of three hundred and sixty-six
bales of cotton, which were shipped to them
by various persons by said flat boat ; that said
boat left Sardinia, on Yakana River, in the
State of Mississippi, on the 19th February.
1853, bound for New Orleans; that on the 2d
March ensuing, on said voyage, descending the
Yazoo River, about eight miles below the head
of Honey Island, and within the admiralty
jurisdiction, about four o'clock on the morning
of said day, the flat boat, being a stanch, tight
and well built vessel, completely rigged and
well provided with tackle, apparel and furni-
ture, and having on board a full complement
of men to navigate the boat, being about the
middle of the said Yazoo River,1eaving sufflcient
space on either side for a steamboat or other
large vessel to pass, and having a light upon
the flat boat, the captain and crew of the boat
being up, the steamboat Brigadier-General R.
U. Stokes, ascending the said river, struck the
flat boat *• Clear the Track" in the bows, which
caused her to .fill with water, and become a
complete wreck; that the steamboat rung her
bell, recognizing the light of the flat boat, but
continuing to run up the middle of the river.

In their answers, the respondents say that
the collision set forth in the lil)el occurred on
the Yazoo River, about fifty miles above the
foot of said island, and more than two hundred
miles above the mouth of the Yazoo, where it
falls into the Mississippi River; and that the
entire length of the Yazoo River is within the
State of Mississippi; and they allege that the
district court has not jurisdiction of the mat-
ters and things, or the claim alleged in the libel
against the respondent. And the respondent
denies that the collision was caused or did hap-
pen by any fault, negligence or want of skill
in the officers or crew of the steamboat; and
they say it was caused by the unskillful man-
agement of the flat boat; and the proper place
for the fiat boat, it is said, was at the shore at
night; and that there was not sufficient space
for the steamboat to pass between the flat boat
and the shore.

D. B. Miller says: I have seen the flat boat;
she seemed to have a sufficient number of
bands on board, and to be well managed. From
the size of the boat, witness thinl^ she was
suitable for the navigation of the Yazoo and
Mississippi rivers, and from her size she would
carry three hundred and fifty bales of cotton
and more.

Jackson Harris is of the same opinion.
James D. Bell examined the boat well, and con-
feidered her strong and well built. Saw her
loaded with three hundred and forty bales of
cotton, and savs she would have carried fifty
more bales safely. Capt. Williams was cap-
tain of the fiat boat **Clear the Track" when
the collision occurred. Besides himself, he
had five hands and one passenger, who also
worked. Witneas began his trip at Sardinia,
on the Yakana River. The flat boat had three
hundred and seventy- one bales of cotton on
board. Nothing of importance occurred until
tne morning of the second of March, 1853,
when a steamer was heard coming up the river,
which afterwards proved to be The Brigadier-
General R. H.Stokes. Witness had laid down
about twelve o'clock that night, but was short-
See 22 How.

ly afterwards awakened by Johnson, one of his
hands, who informed him a steamboat was ap-
proaching, and he desired witness to be on deck.
Witness saw the steamer approaching, at a dis-
tance of about half a mile. A light on deck
was immediately prepared. At this time, the
steamboat was about four or five hundred
yards out of sight round the point. The wit-
ness ordered his men. four of whom were on
deck at the time, to throw the boat out from
the point, so as to give the steamer room to
pass. Continued efforts were made for this
purpose, until the collision occurred.

When the boats came together, all hands
were at the oars, except Mr. Johnson, who
held the light. The steamboat could be seen
across the point. It was some fifteen minutes,
the steamboat being in full view, before the
boats came into collision. The fiat boat was
struck on the first stanchion from the corner of
the bow nearest the point of the nosing, about
three feet from the jackstaff of the steamer.
The collision was very severe — so great as to
knock every one down on the flat ^at. Wit-
ness was knocked down senseless by the crane
neck of the oar, but he saw all the others
fall before he fell. When witness recovered
from the effect of the blow, he perceived the
steamer had passed out of his view. Every
effort was made to stop the hole made in the
flat boat by the steamer, and, by working the

Cap, to keep the boat from sinking. The
t floated down some twenty-five miles be-
fore they could land her. In less than an hour
after the collision, the boat sank six feet deeper
in the water, and became unmanageable ; and
a landing was made, with great mfficulty, at
some three or four o'clock in the afternoon.

The steamer Stacy came down the river the
next day, and she took on two hundred bales
of the cotton, including the thirty five on shore.
Before the arrival of The Stacy, witness had
engaged the steamboat McLean to go up and
take up the cotton that could be saved.

Witness has been engaged in flat boating on
the Yazoo River for the last eighteen years.
He does not consider the place where the col-
lision happened as unsafe to run a float boat
at night, and that it is not usual to tie up flat
boats in that part of the river.

The witness says the flat boat had a torch
made of split pine boards, as usual on such oc-
casions. The Stacy met the flat boat in a very
narrow part of the river, much narrower than
where the flat boat met The Stokes. The Stacy
was much nearer the flat boat when she rang
her bell than The Stokes, but she backed out
of the way. The Stacy is double the size of
The Stokes, it being the' largest boat that runs
up the Yazoo.

Mr. Johnson is corroborated by others in his
statement. Thomas Barnes says the steamer
did not change her course after seeing the flat
boat. The steamer was not hurt. Her jack-
staff was knocked off, which was replaced.
Did not hear Captain Williams offer any as-
sistance to the flat boat. At the time the
steamer struck the flat boat she was nearly in
full headway.

Witness thinks there was time enough for
the steamer to get out of the way of the flat-
boat. The master of the boat entered a regu-

271

48-58

SUFRBICR COUBT OF THB UnTTBD StATBS.

Dac. T&RM,

lar protest against the steamer. A number of
witnesses referred to facts which have no ma-
terial bearing in the case.

On the part of the respondent, it was proved
bj William F. Mouldin, the pilot on the Yazoo
since 1845, and was so acting on The Stokes
when the collision occurred, eight miles from
the head of Honey Island. The bell was rung
to stop at Hairs Landing. Directly after ring-
ing the large bell to land, saw a light, as he
supposed at the landing. The river was nar-
row and the current swift. After running a
short distance, and rounding the point, saw the
flat boat about three hundrS yards above the
steamer. He immediatelv ran^ the bell to stop
the engines, and then to back her, which was
done. When she had made about six revolu-
tions the collision took place. The steamboat
was nearly at a stand. The flat boat was float-
ing nearly broadside down the river. There
was no possible means by which a collision
could be avoided. The steamboat could not-
pass on either side of the flat boat. This, how-
ever, is controverted by other witnesses, who
say that there was space on each side of the
flat boat for the steamer to pass up the river.

That the lieht on the flat boat was seen some
two or three hundred yards by the steamer ap-
proaching the flat boat, is admitted ; but it is
urged that a steady light should have appeared
on the flat boat ; that a waving lighted torch
often misleads an ascending boat, on the sup-
position that it is on shore, and designates a
landing place. Several of the witnesses say,
that on observing the approach of the flat boat,
the wheel of the steamer was reversed, and
some five or six revolutions had been per-
formed when the collision occurred. Some of
the witnesses think that the force of the steam-
er was checked, so that its movement up the
river could scarcely be perceived when the
steamer struck the flat boat.

It has happened in this case, as in all other
cases of collision, that the witnesses on board
of their respective boats, from the circum-
stances which surrounded them, and the favor-
able impressions naturally felt in regard to the
efforts made by their respective crews to save
the property and lives under their charge, dif-
fer widely in their opinions. The steamboat
received but little or no injury by the collision ;
but the flat boat, in its structure and careo.
received material injury. The evidence fully
proves this, not only in regard to the flat boat
and cargo, but also as to the expense and loss
to which the owner was subjected.

It is unnecessary to go into detail to show the
facts proved. It is enough to know the char-
acter of the transaction, and the responsibilities
incurred by the respective parties.

The general rule is, w^iere two vessels meet
each other, one propelled by steam and the
other by the winds, the steamer must give way,
and avoid a collision. To this no one can ob-
ject; but, like other general rules, it may be
subiect to exceptions.

The Yazoo extends, from its junction with
the Mississippi River, some two hundred miles
and upwards into the State of Mississippi, and
in some parts its navigation requires care and
experience. Its channel widens and deepens
as the volume of water increases; but it is a
narrow river, and its course is crooked — ^but

272

The Stacey and other boats, of a large class for
inland boats, navigate it with success.

Several of the steamboat witnesses think that
a flat boat, laden with three hundred and seventy
bales of cotton, ought not to run on a dark
niffht, but sl^ould l^ tied up, where the chan-
nel is narrow, and hav% fixed lights, which
distinguish it from a place of landing. Other
witnesses differ from the above, and say that
an inland navigation so long and important as
this, ought to be left free to the enterprise of
its inhabitants. This is more congenial to the
spirit of our people than a regulation which
would retard commerce, without any adequate
beneficial results. No measure of this charac-
ter could well be adopted, without an accurate
survey of the river, in which the points of
danger should be designated. Until this shall
be done, it would seem most judicious not to
go beyond a regulation for boats, passing each
other in ascending and descending this river.
having iigbts, and giving notice of their ap-
proach. There are regulations which apply to
our internal navigation, embracing our rivers
and other waters. Under these, every master
of a boat should act with a presumed knowl-
edge of his duty, and be held responsible ac-
cordingly.

We think, in several particulars, the captain
of the flat boat was in fault. He should have
had one or more steady and fixed lights on one
or more conspicuous parts of his boat. He
should have been careful, by having the upper
and lower end sweeps or oars so worked as to
have occupied near the shore of the river, giv-
ing a sufficient passage to the ascending steam-
boat. Especially he should have so guided his
boat as to have kept it on a straight line of the
water, and not on a diagonal course. It is
easily perceived that, from the position of the
flat boat, it was difficult, if not impracticable, to
ascend the river by the steamer without striking
the flat boat, in the position it occupied.

But we think there was also fault in the
steamer. In rounding the point, it is admitted,
the steamer was at least three hundred yards
below the flat boat. Seeing the light ahead,
the master, in the use of ordinary caution,
should have stopped his boat at once, and re-
versed her wheels, until the locality of the light
was clearly ascertained. It is no excuse, that
he mistook the light for a place of landing.
The commander cannot lessen his responsibfl-
ity by alleging his mistake. He is bound to
make no mistake, for it is his duty to stop his
boat where he doubts, until he ascertains the
facts. Had this been done, the collision could
not have occurred. He could have backed his
boat, until he avoided the flat boat. In not
having done this, the steamer was in fault,
and the damages must be divided between the
two boats, ana also the costs.

Some doubts have been suggested whether,
in the exercise of the admiralty jurisdiction,
some limit may not be interposed.

Under the English system, Uie ebb and flow
of the tide, with few, if any, exceptions, estab-
lished the fact of navigability; and this was
the course of decision in this country until re-
cently.

The vast extent of. our fertile country, its in-
creasing commerce, its inland seas, bays and
rivers, open to us a commercial pros{H'rity in

63 U.S.

1859.

Adams y. Pjlbstok.

473-491

the future which no nation ever enjoyed. Our
contracted views of the English admiralty,
which was limited by the ebb and flow of the
tide, were discarded, and the more liberal prin-
ciples of the civil law. equally embraced by
the Constitution, were adopted.

This law is commercial in its character, and
applies to all navigable waters, except to a
commerce exclusively within a State. Manv of
our leading rivers are sometimes unnavigaole;
but this cannot affect their navigability at other
times. A commerce carried on between two
or more States is subject to the laws and regu-
lations of Congress, and to the admiralty juris-
diction.

Upon the whole, the decree of the circuit court
i$ reversed, and the catue u remanded, under the
above order of this court.

Mr. Justice Campbell* dissenting:
The decree in the circuit court, dismissing
the libel in this cause, was rendered before the
Judgment in this court in the case of Jackson v.
The Magnolia, 20 How. , 296, was given. There
is no material differences in the cases. The
reasons for the Judgment of the circuit court
in this case are contained in the opinion filed
by me in that case. I do not consider it neces-
sary or proper to repeat them here. I concur
in the Judgment of the court upon the merits of
the cause.

Mr. Justice Catron concurs with the opin-
ion of the court, because the question of Juris-
diction, involved in this cause, was ruled in the
case of The Magnolia, referred to by Mr. Justice
Campbell.

ated— 86 XT. 8. (1 Black), 681; 76 tT, 8. (9 Wall.),
457 ; 1 Brown, 286: 1 Low., 204, 206; 2 Low., 44; 2
Bond., 971, 378 ; 2 FUp., 297 ; 42 N. J. L., 893.

AIARY FORT ADAMS, Adm'x of John

Hag AN, Jr., Deceased, Appt.,

f>.

JOHN S. PRESTON and CAROLINE M.
PRESTON, HIS Wife.

(See 8. C, 22 How., 473^91.)

JudgmefU of state court cannot be remewed, as
contrary to st<Ue law — U. 8. courts have no
jurisdiction of insolvencies settled in state
courts — cancellation of mortgages in Louisiana
—appearance of creditor in insolvent proceed-
ings waivei payment by insolvent.

This oourt cannot review a Judgrment of the Par-
ish Court of New Orleans, for any Irregrularity or
lllc^Hy in the proceedlnssof that court, if either
existed, when there could have been an appeal to
the Supreme Court of Louisiana for Its correction.

This court has never done so, in any case in which
the subject-matter of a suit was within the juris-
diction of a state court, upon the alleflratlon that
its judflnnent had been given contrary to the laws
of the State.

Nora.— Jurfodfctimi of U. S. Supreme Court: to
declare state Jaw void as in conflict loith State Con-
stitution; to revise decrees of state courts as to con-
struction of state la^cs. It in for state courts to con-
strue their own Statutes. Supreme Cfmrt wiU not
review their deciMons except when specially authm"-
ized to hy statute. See note to Jackson v. Lam-
phlre, 7 U. S. (3 Cranch), 280 ; and note to Commer-
cial B'k V. Buckingham, 46 U. S. (5 How.), 317.

aee ^ How. U. S., Book le.

The Parish Court of New Orleans had, by law,
full power over the property ceded by an insolvent,
and over the claims of creditors, and exercised its
jurisdiction, and the legality of its judgment can-
not be questioned by this court.

The courts of the United States have no jurisdic-
tion over the settlement of insolvencies in the
state courts. The parish court had exclusive ju-
risdiction.

The erasure and cancellation of mortgages may
be made in Louisiana, by the judgment of a court
of competent jurisdiction ; where it has the effect
of a res judicala.

After the erasure and cancellation so made, there
can be no subsequent reinscription of a mortgage.

Neither the reinscription nor the assignment to
the plaintiir, could have the effect to give to the
plaintiff any claim upon property of the insolvent,
which had been sold under the judgment of a
oourt having jurisdiction in insolvency.

The appearance in the concurso of the creditors,
and acquiescence with them in fixing the terms for
the sale of the property of the insolvent, must be
taken as a waiver of all rights of the payment of
judgments against the insolvent.

Argued Dec. SO, 1859. Decided Jan. 16, 1860.

A PPEA.L from the Circuit Court of the Unit-
ul ed States for the Eastern District of Loui-
siana.

The history of the case, and a very full
statement of the facts involved, appear in the
opinion of the court.

Messrs. Miles Taylor and Alex. T«
Steele, for appellants:

1. A mortgage in the State of Louisiana,
duly inscribeid in the register of mortgages, in
the parish where the debtor has his domicil,
will affect or bind the slaves of the debtor, no
matter in what part of the State such slaves may
be employed.

C. C.. 458, 454, 458, 461, 8216. 8288, 8246,
8247, 3248, 8250; Hyams ▼. Smith 6 La. Ann.,
868;Poftnv. Ore(Utors,9lA.,n;Hoopery. The
Union Bank of La., 10 Rob. La., 68; 11 Rob.
La., 20; Oumming v. Biossatt, 2 La. Ann., 794;
Grouch y. Lockett, 8 La. Ann., 121; Bibb v.
Union Bank, 8 La. Ann. , 884; Spencer v. Amis,
12 La. Ann,, 127; Voorhies v. De Blanc, 12 La-
Ann., 864.

2. No mortgage of any kind existed in favor
of the heirs of Hampton upon the slaves, which
are the object of the present action, on the 2d
day of February, 1841, when they filed their
intervention in the suit then pending in the
Parish Court of New Orleans, wherein the
syndics of the creditors of Thomas Barrett were
plaintiffs and Robert Bell was defendant, nor
at any time thereafter, nor did anv privilege
exist on them in favor of the heirs of Hampton;
and these slaves were then affected by, and
subject to, the judicial mortgages resulting
from the judgnients duly recorded against
Thomas Barrett in the Parish of New Orleans,
where he had his domicil.

C. C, 8833; Transcript, 104 to 108; C. Q.,
2216, 8246, 8247, 3248, 8250, 8238, 8289, 8317,
3818, 8290.

' 8. The prooeedines had in the case of The
Syndics of the Chreditors of Thomas Barrett v.
Bobert BeU, in the Parish Court of New Or-
leans, upon the intervention of the heirs of
Hampton filed therein, were and are, so far as
to the mortgage rights of the Union Bank on
the property of the insolvent Barrett res inter
(tlios acta, and can have in law or equity no ef-
fect in sheltering the slaves in question from
pursuit, when the object is to subject them
to the operation of the judicial mortgages

18 Si«

473-491

SUFBElfB COUBT OF THB UlOTBD StATBA.

Dec. Tsbm,

which existed in favor of that Bank at the time
of making such intervention. Neither was
there any th ins: in the proceedings in the case of
Bnrrett v. Bis Creditors, 4 Rob. La., 408,
which could have had anj such effect.

Bullard & Curry's Dig.. 479, et seg., sees. 10,
11, 12, 15, 16, 81, 35. 44, 45, 46; Brotonv. Ken-
ner, 8 Mart., 278; JSavl v. Creditors, 7 Mart.
N. 8., 425; Bivas v. Hunstock, 2 Rob. La.,
187; Egerton v. Creditors, 2 Rob. La., 201;
Coiron v. Miliatidan, 8 La. Ann., 664; Oravier
V. Lafon, 7 Mart., N. S., 618; PandeUy v.
Creditors, 9 La., 887; Morgan v. Syndics, 4 La.,
174; Morgan, Dorseydt Co. v. Iheir Creditors,
19 La., 84; Sue. ofPetayvin, 10 Rob. La., lib;
1 La. Ann.. 92; C. C 1169, 1170; Bobert v.
Creditors, 2 La. Ann., 535; Lee v. Creditors, 2
La. Ann., 994; West v. Creditors, 8 La, Ann.,
582; WiUiams v. Meholson, 5 La. Ann., 720.

In conclusion, we claim that at the date of
Barretts surrender and afterwards, the heirs
of Wade Hampton had no mortgage upon the
slaves of Barrett which we now desire to sub-
ject to the payment of our debt, and that at
the same time the Union Bank did have a
mortgage on those slaves: that the heirs of
Hampton (of whom the defendants are two) re-
ceived the property in payment of a debt which
they claimed to be due to them with mortgage
without any payment whatever, and that the
Union Bank received nothing; and, that the
sale of the prof)erty to Hampton's heirs did
not cancel any mortgages which were upon
the property, and that the questions presented
in this case were not and could not have been
examined in the case of T?i£ Syndics of Barrett
V. Bell, or of Barrett v. His Creditors, and also
that the plea of prescription tiled by defend-
ants, could not apply to the case: and also that
the acts of the syndics, in pretending to cancel
the mortgages of the Union Bank, were void.

These are all the questions raised by the
pleadings.

Mr. J. P. Benjamin* for appellees:

1. The bill must be dismissed for want of
proper parties. This objection was taken in
the court below, and is insurmountable.

The bill prays to annul a judgment rendered
in a suit between the syndics of Thomas Bar-
rett and Robert Bell and the heirs of Wade
Hampton intervening; yet, neither of the
original parties to the suit is before the court,
and only one out of the three intervening
parties.

It seeks to set aside a sale made by Barrett's
syndic and Robert Bell to the three heirs of
Wade Hampton; yet none of the vendors are
before the court, and only one of three pur-
chasers is made party.

The bill attempts to excuse the want of par-
ties that it admitfl to be necessary, by averring
them to be beyond the jurisdiction of the court.

This excuse cannot avail.

Shields v. Barrow, 17 How. , 180 Coiron v.
MilUiudon, 19 How., 118.

2. The Parish Court of New Orleans was
vested by law with full power over all the prop-
erty ceded by the insolvent, and over the re-
spective claims of the creditors.

Any error or illegality in the proceedings of
the parish court, should have been corrected
by appeal to the Supreme Court of Louisiana.

Tarver v. Tarver^ 9 Pet., 174; Gaines v. Chew,

^74

2 How., 619, 644; JFbuverffne v. Oiiy ofN. O.,
18 How., 471.

That the law of Louisiana vested in the par-
ish court full and conclusive jurisdiction over
the property surrendered and the distribution
of its proceeds against the creditors, is too clear
to admit of dispute.

Insolvent Law of La. of 1817; Insolvent Law
of La., 18th March, 1837; Act of Legislature,
La.. 1826.

AH the property previously owned by the in-
solvent, become vested in the creditors repre-
sented by the syndics as their trustees.

Schroeder v. ifichalson, 2 La., 354; Morgan ▼.
Creditors, 7 La., 62; Dwight v, Simon, 4 La.
Ann., 492.

And all creditors who are parties to the in-
solvent proceedings, are absolutely prohibited
from seeking remedies in any other court,
even of the State of Louisiana, than that in
which the insolvency is pending.

Jacobs V. Bogart, 7 Rob. La., 162; Marsh v.
Marsh, 9 Rob. La., 46; 7\/ler v. Cred's, 9 Rob.
La.. 378.

And not only is th.8 so, but previously exist-
ing suits in other courts are all rec^uired by law
to oe transferred to the court having jurisdic-
tion of the insolvency.and to be there cumulat-
ed with the insolvent proceedings.

Code of Prac., art. 165, sec. 8.

8. If, however, it be pretended that the cir-
cuit court had jurisdiction of the complainant's
demand on the ground of the frauds charged
in the bill, the answer is, that those frauds are
denied in the answer, and not one scintilla of
proof has been offered in support of them.

4. Should it be decided by the court that the
foregoing points are not sustainable, and that
the merits of the controversy between the par-
ties are open for examination, then it is con-
, tended in behalf of appellees:

I. That complainant has no such mortgage
rights as are alleged by him, because the mort-
gages were canceled many years before he ac-
quired the judgments assigned to him.

These mortgages were canceled by consent
of complainant's assignor.

Independently of this consent, they were
canceleid by the syndics by virtue of power
vested in them by law, and this was done on
the 2d of June, 1841.

These mortgages claimed by complainant
were also ordered to be erased and canceled by
judgment of the court rendered contradictorily
with the Union Bank, more than four years be-
fore the transfer by the Bank to the complainant.

The complainant seems to think, that be-
cause the law (C. C, 8883) provides that mort-
gages cease to have effect after a lapse of ten
years from the registry, unless the registry be
renewed, it is, therefore, in the power of a mort-
gagee to revive a mortgage legally canceled and
erased by the ex parte act of reinscribing it on
the boo&s of the mortgage office. No argu-
ment can be needed on such a pretension.

Observe, in the transfer from the Bank, to
Hagan. the Bank does not profess to sell any
mortgage claims; does not pretend that there
then, 1A49, existed any inscription of the jugd-
ments, but simply transfers its claim without
any warranty. The idea on which this suit
was brought, is plainly an after-tliough!, and
the suit itself purely a speculation in licigaliou.

68 U. 8.

1869.

Adams y. Pubston.

473-491

The appearance and action of the Bank in the
concursor or meeting of creditors, and fixine the
terms of sale of the property, was a legal
waiver of any ririit to follow the property, and
an agreement to look alone to the proceeds in
the bands of their agents, the syndics.

Egerton v. CredUari, 2 Rob.. 201; 8aul v.
Creditars, 7 Mart. N. S., 446. 447.

Finally, the sale of the property by order of
court in the partition suit extinguished the
mortgages, and left the parties entitled to them
no otiber recourse than to claim the proceeds of
the sale. The law is the same in probate and
insolvent sales.

Fabre v. Hepp, 7 La. Ann., 6,; OHmore v.
Menard, 9 La. Ann., 212; WtRiarMon v. Ored-
iters, 5 Mart., 620; Kohn, Syndic, y. Manh, 8
Rob. La., 48.

The rights of the Union Bank as judgment
creditors were finally settled in the parish
court, and the Judgments therein rendered for
the application of the proceeds of the sale to
the payment of Hampton's heirs; and the judg-
ments finally homologating the accounts of the
83'ndics, are final and conclusive adjudications
of the subject matter of this suit, and form res
jtidicaia against complainant.

Moraan v. Creditors, 4 La., 174; Ory v.
Creditors, 12 La., 121; Lang v. Creditors, 14
La., 237; Smich v. De LaLande, 1 Rob. La.,
884; Egerton v, CredUors, 2 Rob. La., 201;
Coiron v. MiUaudon, 8 La. Ann.. 664.

And it makes no difference that the price
was not actually paid to the syndics, but re-
tained b^ Hampton*s heirs in satisfaction of
their claim, as this was their legal right.

Chodale v. Creditors, 8 La., 302; Rodriguez
V. Dupertrand, 1 Rob. La., 536; Bobert v.
Creditors, 2 La. Ann., 535.

Complainant's claim is barred by prescrip-
tion. The suit to annul the judgments and de-
crees of the parish court, is barred by the lapse
of one year.

La. Code of Pr., 607, 713.

And the mere lapse of time, long acquiescence,
and laches of the complainant and assignors,
from the sale in 1841 till the filing of the bill in
1853. coupled with the fact that the complainant
is a mere assignee of a right to file a bill in equity
for fraud, form a suflScient ground for the dis-
missal of the bill.

2 Story Eq. Jur., sec. 1520, and authorities
there cited; Prosser v. Edmonds, 1 You. &
Coll.. 481; Ward v. Van JSokkelen, 2 Paige,
Ch., 289; Worsham v. Brown, 4 Ga., 284.

The complainant's right to enforce his mort-
gage, even if it were vaSid, is prescribed by the
lapse of ten years.

C. C, 8495. 3374, sec. 6, 3508, 3444; La-
nusse V. Mintum, 11 La., 256.

The original inscriptions of the mortgages
claimed by Hampton's heirs were valid , and
the registry of the sale from Leroy Pope to
Barrett created a privilege in their favor, and
operated as a valid reinscription of the origi-
nal mortgages.

C. C, 3315, 3316; MaOard v. Carpenter, 6
La. Ann., 397; Sauvinet v. Landreaux, 1 La.
Ann., 220; EUsy. Sims, 2 La. Ann., 251; Bon-
nafe v. Lane, 5 La. Ann., 227.

The heirs of Hampton were legally and
rightfully recognized as entitled to the privi-

See 22 How.

lege accorded by law to partnership creditors,
in the partnership assets.
C. C, 2806, 2794.

Mr. Justice Wayne delivered the opmion
of the court :

We have given our best consideration to this
record, in connection with the minute state-
ment made from it by the counsel of the com
plainant, without having been able to find any
cause for the reversal of the Judgment.

The plaintiff sued the defendants, John 8.
Preston and Caroline M. Preston, his wife, as
the joint )x)ssessors of one hundred and thirteen
negroes, and their increase, to subject them,
and the revenues which had been derived from
their labor, to the payment of certain judgments
which the plaintiff savs he owns, as the assignee
of the Union Bank oi Louisiana.

Those judgments had been obtained by that
Bank a^inst Thomas Barrett, a resident of the
City of New Orleans. He alleges that Barrett
was the owner of the slaves when the judg-
ments were obtained, and that, by reason of
that fact, and the Bank's assignment to him, he
had a judicial mortgage upon them, their in-
crease and revenues, to pay the judgments.

The suit was brought in the Third District
Court of New Orleans, when the defendants
were sojourners there ; and being cited to answer,
they appeared. Being citizens of the State of
South Carolina, they removed the cause to the
States Circuit Court for the Eastern District
of Louisiana, in which it was filed in the chan-
cery side of the docket. There the defendants
filed a dilatory exception in bar of the action
against them ; which being overruled, they were
required Answer. And they did so.

They neither admit nor deny the original
validity of the Judgments against Barrett, nor
the assignment of them to the plaintiff; and
they admit that the one hundred and thirteen
slaves had belonged to Barrett; but giving at
the same time their narrative of the manner in
which Barrett had ac<}uired title to them and
the judicial proceedings under which they
bought the property. They state, in their an-
swer, that Wade Hampton, of South Carolina,
being the owner of Whitehall plantation, in
the parish of St. James, in Louisiana, sold it
on the 8th April, 1829, to Leroy Pope, for
$100,000, pavable in twenty years from the
1st day of January, 1880. with interest at six
per cent, per annum, payable annually. That
the seller took from Pope a mortgage on the
plantation, and also an obligation that he would
add to the plantation seventy working hands,,
and mortgage them to Hampton, with their in-
crease, to secure the payment of Pope's pur-
chase and interest. Pope, on the 23d of Feb-
ruary following, complied with his obligation,
by mortgaging seventy working hanas and
thirty-one chilaren to Hampton. He was then
a resident of the parish of St. James.

Pope, two years afterwards, on the 18th
Marcn, 1833, sold the plantation and slaves to
Thomas Barrett, of New Orleans, for $151,034.
In payment, Barrett assumed to pay the debt of
$100,000, and the accruing interest annual) v,
to Hampton, and received the property, sub-
ject to Uie rights of Hampton upon the planta-
tion and slaves. Two days afterwards, Bar-

275

47»-491

SUPBBMB COVBT OF THB UkITBD St ATB8.

Dec. TiERx,

rett conveyed one half of his purchase to
Robert Bell, with an agreement that Bell's in-
terest should be considered as having attached
from the day of Barrett's purchase. Barrett
failed to pay the interest; and Hampton being
dead, his heirs brought suits for it, and these
judgments were obtained against him in Janu-
ary, 1838, March, 1889, and April, 1839. The
judgments were recorded in New Orleans,
where Barrett lived; but the mortgages and
conveyances given to Hampton, and his con-
veyance of the plantation, were recorded,
when thev were executed, in the parish of St.
James, where the slaves were, and where Pope
and Bell both lived.

Barrett became embarrassed, and applied for
the benefit of the Insolvent Laws of Louisiana,
on the 12th Mav, 1840. In the schedule of
property surrendered to his creditors is found
an item of Whitehall plantation and one hun-
dred and fifty slaves, valued at $210,000, sub-
ject to the bond for $100,000, and the interest
due thereon.

A meeting of Barrett's creditors was held on
the 15th June, 1840. Syndics were elected by
them, with general discretionary powers, par-
ticularly wiUi the power to sue for the parti-
tion of any property whatsoever held and owned
by the insolvent jointly with others, and to
claim partition in kind or by sale ; also, to ap-
point agents for the disposal of property out of
New Orleans. Amongst the creditors at this
meeting who elected the syndics, was the Bank
of Louisiana, by its representative, its president.
In October, after this meeting or the creditors,
the heirs of Hamption intervened in the insolv-
ent proceedings, claimed their rights under
the mortgages upon Whitehall and upon the
negroes; and they took a rule upon Magoffin
and Morgan, the syndics of the creditors, to
show cause why the plantation and negroes
should not be sold, and the proceeds applied to
the payment of their claim. The rule was made
absolute, by a judgment recognizing their
right as mortgagees, and ordering a sale of the
property.

At a subsequent meeting of the creditors, at
which the Union Bank of Louisiana was again
represented by its president, the creditors gave
to the syndics a power to raise all mortgages
recorded a^inst the insolvent on anv estate
owned by him alone, or jointly with other per-
sons, which had been surrendered to his cred-
itors, with authority to make partition of the
same with the co-proprietors, either amicably
or judicially.

Upon the petition of the syndics to the Judge
of the Parish Court of New Orleans, that act
of the creditors was homologated, and the
syndics were authorized by the court to do all
which it empowered them to perform, by the
votes of the creditors who appeared, or who
were represented at the meeting.

In conformity with such powers, the syndics
instituted a suit, alleging that Whitehall planta-
tion and slaves had been purchased for the
joint account of Barrett & Bell, and that an
action of partition was necessary, to enable
them to liquidate that special partnership.
They also asked that the proceeds of the crop
maae on the plantation might be deposited in
Bank, subject to the order of the court; that an
inventor}' and appraisement of the property

should be inade and returned into court; and
that such proceedings might be had as would
lead to a prompt and final settlement of the
partnerdup.

Bell united in this petition, and declared him-
self to be a creditor of the partnership; prayed
for a settlement of its aflPairs, and for the al-
lowance in his favor of a lien on the partner-
ship property, for such sum as might bie found
due to him.

The heirs of Hampton intervened in this
partition suit, stating their claims upon the
property as mortgage creditors; and insisted
that the property uiould be sold, subject to
the assumptions, oy whoever might become at
the sale vendee, for the payment of their claim,
principal and interest.

On the 6th of February, 1841, the court gave
a judgment, sustaining the claims of Hamp-
ton's heirs, and directing the sale of the prop-
erty, with the condition, "that the vendees
should assume the payment to Mary Hampton,
John 8. Preston and wife, and John L. Mann-
ing and wife, of $100,000, payable on the 1st of
January, 1856, with six per cent, interest from
the 1st of January, 1841 ; and further, that it
should be taken as a term and condition of the
sale, that the purchaser should specially mort-
age and keep mortgaged the plantation to the
intervenors, and the eighty-one slaves described
in the inventory, to them and their heirs and
assigns. '*

The property was advertised and sold by the
sheriff, pursuant to this judgment ; was bought
by the heirs of Hampton for $116,000; was
paid for by surrendering to the sheriff the bond
of Leroy Pope for $100,000, and by applying
arrears of interest due on that bond to the pay-
ment of $16,000. An account was filed a few
days afterwards, by the heirs of Hampton, of
the whole amount due them, and after ^ving
credit for the $116,000, and there was still re-
maining due $Ll,248.1U.

A rule was then taken on both the plaintiff
and defendants, by the heirs of Hampton, for
them to show cause why the account should not
be approved, and their demand against the part-
nership of Barrett & Bell be liquidated, at the
sum 01 $11,248. Hi; and why the same should
not be paid out of any money belonging to the
partnership.

Upon the rule a judgment was rendered on
the 23d April. 1844, according to its purport,
declaring that, after having credited the ac-
count with $116,000, there was still due to the
heirs of Hampton, by the partnership of Bar-
rett & Bell, the sum of 11, 248. Hi, and a judg-
ment was passed in their favor for that sum,
against Mrs, Caroline Bell, the heir of Rob-
ert Bell and J. B. HuUen, who had been elect-
ed the syndic of the creditors in the place of
Magoffin and Morgan. A representative of
the Union Bank was present, and voUng for
Hullen.

A final iudgment was afterwards rendered,
settling all matters in dispute between the par-
ties to the suit. The proceeds of the crop
were appropriated to the payment of legal
charges; and that being insufficient for that
purpose, the heirs of Hampton were required
to pay $2,020.51, in satisfaction of them — it be-
ing declared that the legal charges were higher
in TtLDk than' their privilege upon the copartner

63 V. S.

idso.

Adahb Y. PaBS'TOK.

41'3-491

ship fund. The heirs paid the amount, and that
was a final settlement of all the matters in con-
troversy between plaintiff, defendants and in-
tervenors.

Contemporary with the proceedings in the
partition suit, the matters connected with Bar-
rett's insolvency were concluded in the same
court.

Among other acts done by the syndics, Ma-
goffin and Morgan, was their petition to the
Parish Court of l^ew Orleans to be discharged
from their office of syndics in the insolvency of
Thomas Barrett and Thomas Barrett & Co.
They annexed to their petition an account of
the collections and disbursements which had
been made by them since their last account had
been filed.* They showed that they were, as
syndics, parties to a number of suits, which
were still pending; refer particularly to the
partition suit instituted by them, and still pend-
mg, against Robert Bell, as the partner of Bar-
rett; pray that the creditors of the insolvent
may be ordered to meet to elect other syndics,
on account of their not being able to act longer
in that capacity, as their private affairs com-
pelled them to leave the State of liOuiBiana.

The court gave an ordef upon this petition,
that the parties interested show cause, within
ten days from the publication of the order,
why the accounts of the syndics should not be
homologated, why the funds stated by the syn-
dics should not be distributed in accordance
therewith, and why the syndics should not be
discharged. And it further ordered, that a
meeting of the creditors should be held on
Wedn^ay, the 9th May, to elect another syn-
dic in place of Magoffin and Morgan. (

Such a meeting was held. James B. Hullen
was elected by the creditors sole syndic, with
all the powers which had been conferred by
the creditors at former meetings upon Magoffin
and Morgan. They were then discharge by
the court from their functions as syndics, upon
their paying the balances in their hands to
the parties entitled thereto, reserving to them-
selves, however, whatever claim they might
have on the sale of the Whitehall plantation ;
and James B. Hullen was confirmed as sole
ayndic of Barrett and Thomas Barrett & Co.
This order was given by the court on the 30th
May, 1842.

Seven days after the meeting of the creditors
had been held, pursuant to the order of the
court, Christopher Adams, Jr., President of
the Union Bank, filed a paper in the court, ac-
knowledging himself to be fully cognizant of
all the proc^ings of the meeting; that he was

S resent at it; that the Bank was a creditor; that
[ullen had been unanimously elected by the
creditors sole syndic, in place of the former
syndics, on the same terms and conditions that
they had been, with the same powers which
the creditors had conferred upon the former
syndics; and further shows that at the meet-
ing on the 9th May, 1842. he had voted for the
dispensation of ilullen from giving the securi-
ty required by law to be given by syndics.

This narrative discloses the connection of
the Hamptons with the proceedings of the syn-
dics, and in the partnership suit which they
had brought against Bell to settle his claim as a
partner in the purchase of the Whitehall plan-
tation and slaves. Thus matters remaincxl for

Bee 22 How,

nine years, no one supposing that there was
any irregularity in the judicial proceedings
under which the heirs of Hampton had bought
the property, the Bank all the time acquiescmg
in the result. Indeed, nothing was done with-
out the knowledge of the Bank; everything
that was done was with its approbation. The
record shows that every step taken by the syn-
dics for the settlement of Barrett's insolvency
was in conformity with the powers which the
creditors had given to them. But nine years
after the final and conclusive settlement of the
whole matter in controversy, the president and
directors of the Bank assigned to the plaintiff
in this suit five judgments, which the Bank had
obtained against Thomas Barrett in 1838 and
1889. Upon this assignment it is that the plaint-
iff now claims that these judgments were a mort-
gage upon the Whitehall plantation and slaves.
He alleges that all the proceedings in the Parish
Court of the Parish and City of New Orleans,
in the matter of the insolvency, were irregular;
that the disposition of property surrendered by
Barrett for his creditors, and the creditors of
Thomas Barrett & Co., "were irregular, insuf-
ficient, null and void, and had been procured
by fraudulent combination between the heirs of
Hampton with Bell, and with the syndics of
the creditors, for the purpose of defrauding the
Union Bank particularly. He also alleges
that the Union Bank has not been a party to
the suit of the syndics, and that neither the
Bank nor himself are in any way bound bv its
proceedings. And the fraud with which he
char^ the defendants is, that they claimed as
creditors of Barrett, under the mortgage which
Leroy Pope had made for their ancestor, Hamp-
ton, when the plantation was bought from
him, and which Barret assumed to pay when
he purchased from Pope, well knowing at the
time that the efficacy of the inscription of the
mortgages upon both plantation and slaves had
expired, according to law, without any renew-
al of the registry of them. The defendants
deny, in their answer, the fraud charged, or
fraud of any kind, in their intervention in the
proceedings in insolvency. No attempt was
made to prove it; consequently, the plaintiff's
whole case depends upon his assertion that there
are irregularities in the suit, and in the rendi-
tion of a judgment, and under which the heirs
of Hampton purchased the property at sheriff's
sale, which made that judgment a nullity. The
plaintiff is the assignee of the Union Bank, and
the argument in support of his claim as as-
signee is, that he is entitled to a judgment,
siibjecting the propertv to the payment of the
judgments which the Bank had obtained against
Barrett, unless the mortgages of the Bank were
extLDguished by the sale made bv the sheriff to
the heirs of Hampton, and unless the settle-
ment between the syndics, Robert Bell, and
the heirs of Hampton, upon the judgments
rendered in the cases of the syndics and Bell,
are res judicata.

These positions are, in themselves, an aban-
donment of the charge of fraud originally
made, and for no other purpose than to give to
the circuit court jurisdiction of the case
against the defendants, and without which the
court could not have taken jurisdiction. With
what propriety, then, can this court now be
called upon to review a Judgment of the Parish

877

478-491

BtTFBEIIE COTTBT of THB UnTTBD StATBS.

Dec. Tbrm,

Court of New Orleans for any irregularity or
illegality in the proceedings of that court, if
either existed, when there could have been an
appeal to the Supreme Court of Louisiana for
its correction? This court has never done so in
anv case in which the subject-matter of a suit,
being within the jurisdiction of a state court,
upon the allegation that its judgment had been
given contrary to the law of a state. See the
cases of Fouvergne v. CUy of N. 0., 18 How.,
471; Oaines v. Chew, 2 How., 619, 644; and
Tai-ver v. Tarcer, 9 Pet., 174. The Parish
Court of New Orleans had, by law, full power
over all the property ceded by the insolvent,
and over the claims of each of the creditors.

It exercised its jurisdiction, and the legality
of its judgment cannot be questioned by this
court. Besides, the courts of the United States
have no jurisdiction over the settlement of in-
solvencies in the state courU. The parish
court had not only jurisdiction, but exclusive
jurisdiction, over the property surrendered,
and the distribution of it among the creditors
of the insolvent. By the laws of Louisiana,
the property surrendered becomes vested in the
creditors, represented by the syndics as their
trustee. Schroeder v. NichoUian^ 2 La., 864;
Morgan v. Creditors, 7 La., 62; Dwight v.
Simon, 4 La. Ann. , 492. And the creditors of
an insolvent who become parties to the insolv-
ent proceedings are prohibited from seeking
remedies in any other court of the State oi
Louisiana. Jacobs v. Bogart, 7 Rob. La., 162;
Marsh V. Ma^sh, 9 Rob. La., 46; Tj/lsr v.
Creditors, 9 Rob. La. , 372. It is also declared,
in the Civil Code, art. 165, sec. 8, "that, in all
matters relative to failures, all suits already
commenced, or which may be subsequently in-
stituted against the debtor, must be carried be-
fore the court in which the failure has been de-
clared ; " and " where a party claims from the
syndics goods which had been surrendered by
an insolvent, the suit may be brought before
the court where the concarso is pending." 2
liob. La., 848.

The want of jurisdiction, then, in the courts
of the United States, to review the proceedings
of the Parish Court of New Orleans, in a ca^je
of insolvency, is, of itself, sutficient to prevent
the court from giving to the plaintiff a decree
in this suit.

There are, however, other grounds sufficient,
to be found in the record, from which we have
concluded that the plaintiff has neither an
equitable claim against the defendants in this

Eroceeding, nor any right, under the law of
louisiana, to subject the property in contro-
versy to the judgments of wiiich he is the
assignee. But we shall contine ourselves to
the discussion of one of them.

The judgments of the Union Bank if they
ever had, at any time, mortgage rights against
the Wiiitehall plantation and the slaves upon
it, better than the mortgages eiven by Leroy
Pope at the time of his purchase, and which
were assumed by Barrett when he bought the
property, and which were equally obligatory
upon Bell, when himself and Barrett formed
their particular partnership in respect to that
property, those judgments had been legally
canceled before they were assigned to the
plaintiff by the Bank. It will be found, at
pages 20 and 21 of the record, tiiat the assignor

27^

of the plaintiff united with the other creditors
in giving to the syndics the power to raise all
mortgages ^ranted by or recorded by Thomas
Barrett, or Thomas Barrett & Co., on any real
estate owned by Barrett, jointly with other
persons, and surrendered by him to. his cred-
itors, with power also to effect partitions of the
said property with his co-proprietors, either
amicably or judically, &c. , &c.

The creditors, too, authorwed the syndics, or
either of them, to vote, deliberate, and give
their opinion for them, at any subsequent
meeting of the creditors of Barrett, or Thomas
Barrett & Co. And the powers so given to the
syndics were homologated by the Jndge of the
Parish Court of New Orleans. Under such a
power, the syndics might have enu^ the ju-
dicial mortgages of the bank in the fair and
bona fide discharge of their relation to the
creditors as their trustees, and the Bank would
have been bound by their action. But they
proceeded, according to law, to have the ju-
dicial mortgages of the Bank canceled ; and they
were canceled on the 1st of February, 1841.
This cancellation was made by the syndics, in
conformity with the 32d section of the Act of
February, 1817, entitled, " An Act relative to
the voluntary surrender of property, and to the
mode of proceeding, as well for the direction
as for the desposal of debtors* estates," &c., &o.
The erasure and cancellation of mortgages may
be made in Louisiana, by consent or by order
of the court. Articles 8835, 8336. In this in-
stance, the erasure was made by the judgment
of a court of competent jurisdiction; when, by
the latter, it has the effect of Sk res judicata. 7
Rob. La.. 882, 518; 11 Rob. La., 171. After
the erasure so made, there can be no subse-
quent reinscription of a mortgage. That which
was made in 1848 revived no Uen upon the
property which the Bank's mortgages may
have had before they were erased. But there
was another erasure of the Bank's judicial
mortgages in a suit brought by Barrett against
it, before its assignment was made of its j.udg-
ments against Barrett to Hagan, the plaintiff.
Rec., 83, 88, 94, 99, 103. ft was done bv a
court having competent jurisdiction, and it
concluded the right of the Bank to convey its
judgments to the plaintiff as judicial mort-
gages, though they might be transferred as judg-
ments to entitle the assignee to a participation
in any unadministered proceeds made from
the sale of the property surrendered by the in-
solvent for his creditors. But neither the
reinscription of 1848, nor the assignment to the
plaintiff, could have the effect to give to the
plaintiff any claim upon property oi the insolv-
ent which had been sold under the judgment
of a court having jurisdiction in insolvency.
The property now claimed by the plaintiff, as
subject to his assignment, had been recognized
by the judgment of the parish court to be
subject to the claims of the heirs of Hampton ;
had been ordered by the court to be sold by the
sheriff; had been sold by him, and adjudicated
to the purchasers: and the consideration money
of the purchase had been accounted for by the
sheriff to the syndics of the insolvent, and by
them accounted for to the court, in strict ac-
cordance with its order, nine years before tlie
Bank made an assignment to Hagan. The sale
could not have been in any way subject to the

68 U.S.

1850.

Whitb v. Wright.

ld-2S

Judicial mortgages of the Bank, nor could it in
any way effect the property purchased by the
defendants. Indeed, there can be no doubt
that, after the appearance of the Bank in the
coneuna of the creditors, and its acquiescence
with them in fixing the terms for the sale of
the property of the insolvent, it must be taken
as a waiver by the Bank of all its rights to pur-
sue it for the payment of its judgments against
Barrett, the insolvent, and that it would look to
the proceeds of its sale, as the creditors did, for
the satisfaction of their respective claims.
SgerUm v. OrediUn^s, 2 Rob. La , 201; Saul v.
Creditors, 7 Mart. N. 8., 446. 467. Without
pursuing the discussion further, we have con-
cluded tliat the Bank, when it assigned its judg-
ments to the plaintiff, had no mortgage lien on
tne Whitehall plantation and slaves to transfer;
that the language of the assignment, interpreted
by the acknowledged acts of the Bank m the
insolvency, cannot mean any such transfer,
and that the judgment and s^e under the par-
tition suit barred the Bank from making such
an assignment, and the plaintiff from any such
claim as he has made in his bill.

We direct the affirmance of the decree of ths
circuit court.

J. J. B. WHITE (Defendant), and GILBERT
8. HAWKIN8 AND PETER J. COCK-
BURN, Composing the Firm of Oakst,
Hawkins & Co., and Mrs. W. C, W.
FAUST, Widow, and MRS. REBECCA J.
WHITE, aided and assisted by her Husband,
J. J. B. White (Intcrvenars), Plffs. in Er,,

HAMILTON M. WRIGHT, and the sole as-
signee of the rights and interests of the late
Commercial Firm of Wright, Williams

A Co.

(See S. C, 22 How.. 19-83.)

Decision of State Court, when reviewable.

This court has no jurisdiction to revlBe the de-
cUion of a State Ck>urt where there Is no complaint
that the obligation of a contract has been im-
paired, nor that any lifht has been claimed and
refused under any treaty or Act of Gonflrress.

Argued Jan, 20, 1860. Decided Jan. SS, 1860.

IN ERROR to the Supreme Court of the State
of Louisiana for the Eastern District.

This action was commenced by petition in the
Fourth District Court of New Orleans, by
Wright, Williams & Co. , in liquidation, against
J. J. B. White. Oakey, Hawkins & Co. inter-
vened under the practice in Louisiana. Sub-
sequently Mrs. R. J. White and Mrs. W. C. W.
Faust also intervened. After various proceed-
ings, the above court dismissed the petition.

The plaintiffs appealed to the Supreme Court
of the State. The following is the opinion of
the Supreme Court:

This is an attachment suit for the recovery
of $9,500.32, with eight per cent, per annum
interest, from the 9th day of June, 1855, for
money advanced in payment of defendant's
draft li^iven on a final settlement of his account
with Hill, McLean & Co., his former factors.
One hundred and fifty-four bales of cotton were

See 2d How.

attached as the property of the defendants, on
board the steamboat Sally Robinson, at the port
of New Orleans, consigned in the name of P.
O'Donnel to Oakev, Hawkins & Co. The con-
signees, Oakey, Hawkins & Co., intervened in
the suit, and claimed the option as the property
of O'Donnel. On Nov. 25, 1856, Oakey, Hawk-
ins & Co. obtained an order of court permitting
them to bond the cotton, and accordingly, on
27th day of same month, gave bond and secur-
ity as required by order of court. On the same
day, to wit: Nov. 27, 1856, Rebecca J. White,
the wife of the defendant, and Mrs. W. C. W.
Faust filed their petition of intervention in this
suit, and claimed the cotton attached &s their
joint, undivided, separate proper tv. To this
petition of intervention the plaintiff pleaded, in
his answer thereto, the following peremptory
exception: '* That the cotton claimed had been
delivered on bond anterior to the filing of the
intervention to Oakey, Hawkins & Co., and is
not now in court," and prayed that the inter-
vention be dismissed.

On May 29, 1857, the plaintiff filed a supple-
mentary petition, in which he alleged that since
the institution of this suit he hM obtained a
judgment in the Circuit Court of Yazoo Coun-
ty, in the State of Mississippi, against the de-
fendant, for the same subject-matters stated in
the original petition filed in this cause, and
prayed for judgment as in said original peti-
tion, and that defendant decided to answer there-
to. After the filine of the supplemental petition
the attorney appdnted to represent the defend-
ant filed the following exception: *' That the
original cause of action, if any existed, has been
merged in the judgment renaered in the State
of Mississippi and the proceedings therein had,
as shown by the supplemental petition and doc-
uments annexed; that this court, by the said
proceedings of plaintiffs, has been devested of
jurisdiction in the matters in controversy, and
this suit should be dismissed at plaintiff's cost.
Defendant further pleads resjudieaia."

The interveners also filed an exception to the
supplemental petition as follows: "That the
same is a change of the original cause of action
and is contrary to law; and further pleaded the
exception of res judicata."

1. The intervention of Oakey, Hawkins &,
Co. is unsustained by the evidence. It does
not appear that O'Donnel was the owner of the
cotton attached, or that it was even shipped
with his knowledge or consent, nor does it ap-
pear that he or the consignees were in posses-
sion of the bill of lading prior to the attachment
of the cotton by the plaintiff. This interven-
tion, therefore, must be dismissed.

2. The peremptory exception filed by the
plaintiff should have been sustained. The bond
given by Oakey, Hawkins & Co. was only a
substitute for the property attached with regard
to the plaintiff, and not as to the interveners or
third FNEurties, claiming title thereto. The inter-
veners cannot avail themselves of the bond, and
their remedy was against the property itself, in
the hands of the party having possession of it.

Dorry. Kershaw, 18 La., 57; Beaiv. Alexan-
der, 1 Rob. La., 277; 7 Rob., 849.

8. The exception filed by the attorney ap-
pointed to represent the defendant, should have
been overruled. The plaintiff had the right
under the law of. Louisiana, to sue the defend-

879

^e-2M

SuFRBldS CotmT OF THS tJlHTEb ^TATfeg.

t)BC. TerU,

ant in the courts of this State, and also in the
courts of Mississippi at the same time, and for
the same cause of action. This right necessa-
rily carries with it the accessonr right to pros-
ecute the suit in the courts of the two different
States, to final Judgments on the merits. This
right is remedial, and is intended to secure to
the creditor all possible means for the collec-
tion of his debt in different jurisdictions. If
the exception filed on behalf of defendant were
suflicient in law to dismiss the plaintiff's ac-
tion, the right to institute separate actions in
different States for the same debt, would be
nugatory; for so soon as a Judgment should be
obtained in one State, it could be made the
means of dismissing the suit in the other, and
thereby deprive the creditor of the fruits of his
diligence in the undecided suit.

Conceding that the account sued on was
merged in the Mississippi Judgment, the debt
was not thereby extinguished, but established
to be due and owing from the defendant to the
plaintiff. This Judgment in Louisiana is only
evidence of the existence of the debt for the re-
covery of which this suit was instituted, the
affidavit was made, the attachment bond was

S'ven and the writ of attachment issued, and
ere is no legal reason why this Judgment
should not be substituted,by way of amendment,
as the cause of action in place of the account,
for tiie purpose of maintaining the attach-
ment.

The fact that the Judgment is for a greater
amount than claimed and sworn to by the
plaintiff is immaterial, for the reason that the
attachment is only valid as against the proper-
ty for the amount sworn to, whatever may be
the amount claimed In the petition.

The supplemental petition did not change
the substance of the demand. The prayer of
the ori^nal petition is, that the attachment be
maintained and that the defendant be con-
demned to pav the sum of $9,600.82 and inter-
est, with pnvilege upon the property attached,
and the prayer of the supplemental petition is
Uie same.

It is therefore ordered, adjudged and decreed,
that the interventions of Oakev, Hawkins &
Co., and of Mrs. White and Mrs. Faust, be
dismissed at their cost ; and it is further or-
dered, adjudged and decreed that the Judgment
be avoided and reversed; and proceeding to
render such Judgment as should have been
rendered bv the lower court, it is ordered, ad-
Judged and decreed, that the plaintiff do have
and recover of the defendant the sum of $9,-
609. S2, with five per cent per annum, interest
thereon, from the 9th day of June, 1866, and
costs of the lower court; and that plaintiffs'
privilege upon the property attached be recog-
nized and enforce. It is further ordered and
decreed, that the defendants pay one third of
the costs of this appeal; that Oakey, Hawkins
& Co. pay one third, and Mrs. White and Mrs.
Faust the remaining third.

A petition for a rehearing by the defendant
and intervenors having been refused, they sued
out writs of error to this court.

On motion by defendant in error to dismiss
for want of Jurisdiction.

No counsel appeared for the plaintiffs in
error.

Mr, J. P. BenjamiB for defendant in error.

290

Mr. Justice McLean delivered the opinion
of the court:

This is a writ of error to the Supreme Court
of the State of Louisiana.

The defendant in error, bv his counsel, J.
P. Benjamin, Esq., moves the court that the
writ of error issued in this cause be dismiiised.
for the reason that this case is not one in which
the court has Jurisdiction to revise the decision
of the Supreme Court of Louisiana.

On lookine into the record, there appears to
be no ground on which this writ of error can
be maintained. There is no complaint that
the obligation of a contract has been impaired^
nor that any right has been claimed and refused
under any treaty or Act of Congress.

The eaum muet, thertfare, be di$mis»ed for

want ofJuriediieHon.

SIDNEY E. COLLINS, Appt,

f).

DRURY THOMPSON, WILLIAM F.

CLEVELAND, and JAMES CAMP-

BELL'S WIDOW, Heirs and Devisees.

(See S. C, 2S How., 24ft-256.)

Where fraudulent arrangement has been given
up, and a fair one subetituted, fraud ie cured.

The arranflrement between the parttes in respect
to the property, entered into with a view to the
Institution of the suit, which is complained of aa
fraudulent, havln^r been given up, and a new one
substituted, which was not only unexceptionable,
but highly equitable andjust as concemea the com-
plainant, the charge of fraud and imposition de-
pending: upon it, even if it originally had any
foundation, falls with it.

The facts of the case were examined; and the
court held that there is no foundation whatever, not
even colorable, for the charge of fraud set forth in
the bill.

Argued Dec. £9, 1859. Decided Jan. 2S, 1860.

APPEAL from the Circuit Court of the Unit-
ed States for the Southern District of Ala-
bama.

The history of the case, and a statement of
the facts, appear in the opinion of the court.

Mes»rit. W. H. Sewaj^d and K. B. Sewall,

for appellant:

The appellant claims to have the deeds of
1844, 1840 and 1851 set aside, on the following
grounds:

L Illegality.

The transaction in Texas of 1844 was either
the sale of a pretended title, the land being
held adversely to both parties; or.

It was champertous or "savored of champ-
erty/' against which equity will relieve.

Wood V. Dovmea, .18 Ves., 120; BepneU ▼.
J^^rye, 8 Hare, 222, 272; S. C. AJfirtned on
Appeal, 18 Eng. L. & Eq., 74; Stevens v. Bag-
well, 15 Ves., 189; Arden v. Patterson, 5 John.
Ch., 44, 51; Berrien v. McLane, 1 Hoffm. Ch.,
421,424.

The maxim in pari delieto is no objection to
relief, for it does not apply. The parties here
are not equally guilty, and equitv will relieve
" the more excusable of the two.

'SoTK.—Decdsi when txfld for frauds insanUyt
drunkennew, Ac. See note to Hardlngr v. Handy. 62
U. 8. (11 How.), 106.

«8 U. S.

185&

CIOLLINS v. f dOMP£Oi7.

^6-264

Beifnea v. Sjarye, 18 £ng. L. & Eq., 95; 0«-
A<»w V. WilUam$, 18 Yes., 879; fiate* v.
Hatch, 9 Yes., 292; Cook v. (/(%«/, 2 B. Mon.,
71: WaUamsY. Carter, 8 Dana, 198, 201.

II. Mistake — I^orance.
Appellant was induced- to act in iznoranoe of

his rights — their value— the costs of enforcing
them, and of the fraudulent combination which
had been formed, and was all the time operat-
ingto obtain, control and appropriate them.

Bh)an$ v. U&UiUyn, 2 Bro. C. C., l&O; Sturge
V. Shirge, 12 Beav., 229; BUehcock v. OidcUngs,
4 Price. 185.

III. Fraud.
The deed of 1844 was without consideration,

and therefore, considered as a sale, was void
(sine prelio nulla vsnditu) est, D, 18, 1, 2), and
cannot afterwards be set up as a gift.

Bridqman v. Oreen, 2 Ves., 628.

Besiaes, it states on its face a pecuniair con-
sideration contrary to the truth, which of itself
affords a presumption of fraud.

Hawes ▼. WyaU, 8 Bro. C. C, 156; Bridg-
man v. Oreen, 2 Ves., 627.

This accords with the civil law which says:
"Where an engagement has no consideration,
or, which is the same thing, where the consid-
eration for which it is contracted is false, the
engagement is null, and so is the contract which
includes it" (Poth. Obi., 42), and for which
there was eandietio, or a specific mode of re-
dress at law. D, 12, 7.

There was fraudulent concealment — sup-
pressio wri — on the part of Thompson and
others.

Bowman v. Bates, 2 Bibb., 52; Itnry v.
Buck, 1 Green Ch., 866.

Imperfect information is equivalent to con-
cealment.

Walker v. Syrwnds, 8 Swanst., 78; FhUendi
causa obscure loquitur, D. 18, 1, 48, 8, 2.

There was misrepresentation— »u^^e«^ falsi
— by Thompson and others.

Broderick v. Broderick, 1 P. Wms., 240;
ReynOl v. 8prye, 8 Hare 222; 8. G. affirmed, 18
L, & Eq^, 74; Smith v. lUcha/rds, 18 Pet., 26;
Tyler v. Black, 18 How., 231 ; Boyce v. Grundy,
8 Pet., 210.

A concurrence of all these circumstances of
illegality and trtiud—junetajuvant.

The above considerations apply with equal
force to the deeds of 1849 and 1851, for these
were based on and grew out of the same orig-
inal transaction of 1844, and are infected with
all its vices

Woody, Dowries, 18 Ves., 122, 123; ReyneU
V. Sprye, 8 Hare, 269, 270; 8. C, 13 Eng. L.
&Eq., 100, m.

The deeds of 1849 and 1851 were also void,
on the ground that they were obtained by per-
sons standing in confidential relations to Col-
lins, and by undue influence and abuse of con-
fidence.

Cooke V. Lamotte, 11 L. & Eq., 88. 34; Os-
mand v. FUzroy, 8 P. Wms., 129; Whelan v.
Whelan, 8 Cow.. 587; Purcell v. Maenamara,
14 Ves., 91, 107.

Of surprise and circumvention under a press-
ure of circumstances, which deprived appel-
lant of that free agency and self protecting
ability essential to fair dealing.

Pickett V. Logffon, 14 Ves., 215; 1 Story Eq.,
sees. 289, 251.

t5ee 22 How.

Gross inadequacy of consideration, accom-
panied by the circumstances of fraud and im-
position above referred to.

Wood V. Abrey, 8 Madd., 417; Byers v. Sur-
get, 19 How., 811: Huguenin v. Basdey, 14
Ves., 278; Harding v. Handy, 11 Wheat.. 124;
1 Story Eq., sec. 246.

IV. There has been no confirmation.
Satefry v. King, 85 Eng. L. & Eq., 100, 110;

BuOer v. HaskeU, 4 Desaus., 651. 712, 714; Mc-
Cants V. Bee, 1 McCord, Ch., 883, 891 ; Broddus
V. McCaU, 8 Call. 546; Chirry v. Newsom, 8
Yer. , 869.

V. There is no bar to relief from lapse of
time. Appellant was not fully informed of the
circumstances of the fraud till about January,
1855.

VeazUv. Williams, 8 Sow., 184. 158.

Messrs, R. H. Smith and J. P. Benja-
min* for appellees:

The charge is not only one of actual fraud
stated with care and deliberation, but it is a
case of submission and award, and an execu-
tion of that award by complainant, and of lon^
acquiescence in it. The bill assumes the posi-
tion of assailine a binding decision; of claim-
ing a second adjudication, because the first was
made in fraud, executed and acquiesced in un-
der ignorance of, and delusion by reason of,
this fraud, of which, in all its eelemenis and pro-
portions, complainant asserts he was informed
when he filed his bill, and the features of which
he pretends to exhibit to the court, and which
exhibition, in its detail and whole, is false.

The following extract from the opinion of
the court in Eyrey. Potter, 15 How., 56, fur-
nishes the rule applicable to this cause:

The case made by the bill *' \& one of actual,
positive fraud charged, and to be judged of ac-
cording to its features and character as' de-
lineated bv complainant and according to the
proofs adduced to establish that character. Al-
though cases of constructive fraud are equally
cognizable by a court of equity with cases of
direct or positive fraud, yet the two classes of
cases would be met by a defendant in a very
different manner. It seems to be an established
doctrine of a cou^t of equity, that when the
bUl sets up a case of actual fraud, and makes
that the ground of the piayer for relief, the
plaintiff will not be entitled to a decree by
establishing some of the facts quite independ-
ent of fraud, but which might of themselves
J. create a case under a totallv distinct head of
^ equity from that which would be applicable to
' the case of fraud originally stated.

See, also. Price v. Berrington, 7 En^. L. &
Eq., 254, 259, 260; Curson v. Bdworthy, 22
Eng. L. & Eq., 1, 5, 11.

The plaintiff shows that there was a matter
between the parties to be determined; that a
reference of it was made — an award ^iven;
that plaintiff performed it and has acqmesced
in it.

He stands in his pleadings in the position of
a party seeking to assail a judgment for actual
fraud, and must come under the rule applica-
ble to such a case.

Price V. Williams, 1 Ves,, Jr., 865, and cases
referred to in the notes; Knox v. Symonds, 1
Ves., Jr., 869, and cases in note; Herrick v.
Blair, 1 Johns. Ch., 101; Brown v. Oreen, 7
Conn., 542; Bumpass v. WM, 4 Port. (Ala.),

281

246-356

SUFRlBMB COUBT OF THB UnITBD StATBS.

Dec. Tbrm,

70; 2 Hen. & Munf., 408; Head v. Muir, 3
Hand.. 131; Dougherty v. McWTiorter, 7 Yerg.,
2.')8.

The following cases are instances of ratifica-
tions, or of acquie8cence in awards.

Johnson's Ears. v. Ketchumy 3 Green's Ch.
(N. J.). 369; McBaeY. Bucks, 2 Stew. & P.,
158; MeDanielv. BeU, 3 Hayw. (Tenn.), 264.

The bill is of the character of a bill for a new
trial, and the rule in reference to such bills Is
strict. There must be fraud or accident un-
mixed with neglect. See the foregoing au-
thorities.

Mr, Justice Nelson delivered the opinion
of the court.

This is an appeal from a decree of the Cir-
cuit Court of the United States for the South-
ern District of Alabama.

The bill was filed by Collins, to set aside cer-
tain conveyances of a tract of land situate in
the City of Mobile, and particularly a deed from
him to the defendants, bearing c(ate the 15th
February, 1851, on the ground of fraud and
imposition in the procurement of said convey-
ances.

The pleadings and proofs are very voluminous
the pleading alone covering nearly one hundred,
and includmg the proofs, exceeding five hun-
dred, closelv printed octavo pages. The bill is
very inartiflcially drawn, being stuffed with
minute and tedious detail of what might have
been proper evidence of facts constituting the
ground of the complaint, instead of a concise
and orderly statement of the facts themselves.
This has led to an equally minute and extended
statement of the rounds of the defense in the
several answers of the defendants.

In looking closely, however, into the case,
and into the nature and grounds of the relief
sought, and principles upon which it must be
sustained, if at all. it will be found that thi
questions really involved, as well as the mi
terial facts upon which their determination de
pend, are few and simple, and call for no ver
extended discussion.

sponsibilities, in consequence of the suit. Tbe
complainant was to receive $10,000 in the
event of a recovery. A suit was subsequently
instituted in the name of the compIainaDt
against the heirs of Kennedy, in April, 1844,
in the Circuit Court of the United States for the
Southern District of Alabama; was heard upon
the pleadings and proofs at the April Term of
the court, in 1847, and a decree rendered in his
favor; which, on an appeal to this court, was
afl3irmed at the December Term, 1830. The
case, as reported in this court, will be found ia
10 How., 174.

The litigation extended over a period of some
seven years; and, in the progress of it, besides
Thompson who had made the original arrange-
ment with the complainant, three other persons
had become interested, and had contributed
their services and money in bringing it to a
successful termination.

After the affirmance of the decree in this
court, and confirmation of the title in complain-
ant, all the parties concerned met in the City
of Mobile, at the office of the solicitors, for the
adjustment of their respective claims to the
property recovered. Its value had increased,
dunng the progress of the suit, from about
$100,000, according to the estimate, to some
two or three times that amount. The complaia-
ant had originally stipulated for the sum of
$10,000. In this adjustment, one third of the
whole estate was set apart to him, and one sixth
to each of the other four persons. Conveyances
according to this division were executed on the
15th February, 1851. The complainant, there
fore, according to the general estimate, received
$100,000, and the other four associates $50,000
ch. V

Now, the fraud alleged in the bill, and which \
mainly relied on for setting aside this adjust-
ment and division of the estate between the
parties, is placed on two grounds: 1. In ob-
taining the deed of the land, powers of attorney
and omer stipulations relating to the title, dated
the 18th January, 1844, preparatory to the in
stitution of the suit in which the property was
The father of Collins, the complainant, diedl recovered; and 2. In the adjustment and divis-
in 1811, seised of an interest in the tract of land! ion of the property among the several parties

in dispute. He left three sons, the complain-
ant being then some two years old. The tract
subsequently passed into the possession of one
Joshua Kennedy, by collusion between Inerar-
ity, the administrator of C/ollins the elder, and
Kennedy, the latter also afterwards obtaining a

above mentioned, after the recovery had taken
ace, and which was consummated by the deed
of 15th February, 1851.

1. It is insisted, on behalf of the complain-
ant, that, at the time he executed the deed,
powers of attorney, and the other writings, in

deed of the land from the heirs at law by fraud-Vl844, he was unacquainted with the value of

ulent representations.

In 1844, Thompson, one of the defendants in
the present suit, residing in the City of Mobile,
and having some knowledge of the original ti-
tle of Colhns to the land, and of the means by
which the heirs had been deprived of it, visited
the complainant, then residing in Texas, and
being the only surviving heir, with a view to
purchase his tiile, or to obtain an arrangement
with him in respect to it, so that a suit might bo
instituted for the recovery of the estate. An
arrangement was agreed to accordingly, and a
conveyance of the land executed by the com-
plainant and his wife to Thompson; also a
power of attorney, authorizing him to institute
suits for the recovery of the land — Thompson,
at the same time, executing a bond of indem-
nity to the complainant against all costs and re*

888

the property or the condition of the title; that
Thompson, who procured these instruments.and
the authority to commence the suit, was well
acquainted with both ; that he fraudulently de-
preciated the value of the property, and exag-
gerated the difficulties and expense attending
the litigation, and thereby deceived the com-
plainant. This is the substance of the charge.
There is, however, a very brief but most
conclusive answer to it, upon the pleadings and
proofs in the case. It is, that Mr. Justice
Campbell, whose firm had been subsequently
employed by Thompson to bring the suit
against the heirs of Kennedy, declined tbe re-
tainer, and refused to have anything to do
with it, unless the complainant should not only
be made sole plaintiff in the suit, but should
have a substantial interest in the estate sought

68 U.S.

1859.

Collins v. Thompsok.

246-256

to be recovered ; should attend as the party in
interest in conducting the proceedings, and
tAke part in the preparation for trial ; and in-
sisted that the preliminary arrangement made
by Thompson, including the deed of the prop-
erty and agreement for the pajrment of the $10,-
000, should be abrogated and given up. All of
which was agreed to by Thompson and the
other parties concerned; and the suit was com-
mence and carried on to a final determination
under this new arrangement. The complain-
ant attended and participated in the prepara-
tion of the case, assisted in procuring and in
the examination of the witnesses, and admits,
in his bill, that he attended every t^m of the
court at Mobile, while th6 cause waf pending,
and until the decree in his favor.

The whole arrangement, therefore, between
the parties, in respect to the property, entered
into with a view to the institution of the suit,
which is complained of, havinj^ been given up,
and a new one substituted, which was not only
unexceptionable, but highly equitable and just
as concerned the complainant, the charge of
fraud and imposition depending upon it, even
if ori^nally it had any foundation, falls with
it. We shall not stop to inquire into the merits
or justice of that arrangement, for, having
been ^ven up, they are wholly immaterial in
any view of the case, as presented upon the evi-
dence before us.

2. The remaining ground of fraud relied on
in the bill, is that on the day of the arrWal of
the complainant at the City of Mobile, from
his residence in Texas, and which was his first
visit to the citv after the judgment in his favor
in this court, he was requested to attend at the
office of the solicitors, in the evening, and at-
tended accordingly, where he met the defend-
ants, and was then, for the first time, informed
that they had been interested in the prosecution
of the suit, and had expended much time and
monev in the litigation, and were, therefore, ex-
pected to participate in the division of the prop-
erty recovered. That complainant was taken by
surprise when the suggestion was made at the
meeting, by the solicitor, that, in the division.
one sixth part of the estate should be given to
each of the defendants, and including Primrose,
and only one third to himself. That he was
unprepared to act with judgment in the matter,
having been wholly unadvised of the object of
the meeting, or of the persons who were to be
present; that no time was given him for refiec-
tion or counsel ; that he was ignorant of the
value of the property, and incapable of acting
understandingly upon the subject, and had no
information as to the amount he was thus sud-
denly called on to give away. That a deed
was immediately prepared by the solicitor, to
carry into effect the division as suggested, and
was executed ; and that this meeting was ar-
ranged by preconcert, and after consultation
between the defendants and others, for the pur-
pose of entrapping and deceiving the complain-
ant.

The deed referred to is that of 15th Feb-
ruary, 1851, which is sought to be set aside.
This is the second ground of fraud substan-
tially as charged in the bill; and it will be
necessary to look into the answers and proofs
in the case, with a view to see if it is sustained.

The answer of Thompson, which is respon-

Bee 29 How.

sive to this particular charge, is a denial of
every material fact and circumstance upon
which the allegation of fraud rests. It states,*
that one or two days after the arrival of the
complainant at Mobile, he requested him (the
respondent) to go with him to the office of the
solicitor that evening; that he had made an
appointment with the solicitor to meet the re-
spondent, and other persons interested in the
suit, there, in order to come to an understand-
ing and adjustment of their respective interests.
The matters of the adjustment formed the sub-
ject of their conversation during the afternoon,
and down to the time of the meeting. That
the respondent explained to him the under-
standing he had with his associates, the other
defendants, the services they had rendered in
the suit, and the advances of money made
therein ; that, after all the parties had assem-
bled at the office, the subject was again talked
over at length, and, in the course of the con-
versation, the solicitor was referred to, and
desired to suggest what, in his judgment,
would be a reasonable adjustment and division
of the property. Whereupon, he suggested a
division into six parts — two parts to the com-
plainant, and one to Thompson and each of
his three associates; that this appeared to be
generally acquiesced in, and it was proposed
by some one that the papers should be drawn
and executed. But the solicitor objected, and
advised them to postpone the execution, and
refiect upon the matter, and when they had
come to a determination among themselves, it
would be time enough to make out the papers ;
that the complainant expressed great pleasure
and satisfaction at the division; other of the
parties were not satisfied. But, in a few days,
all met at the office of Primrose, one of the
parties in interest, when the deed of the 15th
of February, 1851, was voluntarily executed,
carrying into effect the division.

The answer of Cleveland, another of the de-
fendants, is equally explicit. He states that
the subject of the division was talked over at
the office of the solicitor; that all expressed sat-
isfaction at the division suggested, except Prim-
rose, who objected to the allowance of two
shares to the complainant, he insisting that the
time and labor of others had chiefly contributed
to the success of the suit; and that complainant
had originally expressed a willingness to be con-
tent with a small sum ; that the solicitor re-
pelled the idea, and said, that although others
had been chiefly instrumental in carrying the
case through, the title was in the complainant,
and he ought to have the largest share; that the
solicitor advised the parties to consider the mat-
ter, and if he could aid them to call on him;
that the deed carrying into effect the division
was not executed till several days, and respond-
ent thinks a week, after this, at the oflice of
Primrose.

James Campbell, another of the defendants,
states that, after the meeting at the office, the
subject of the interests of the parties was talked
over; that upon the division suggested by the
solicitor all concurred, except Primrose, who
represented his claims higher than those of
complainant; that he had rendered greater serv-
ices, and was entitled to a greater share. He
depreciated complainant's title to the estate, in-
sisting that he alone could have made nothing

288

1M«-2M

BuPBBilB Coititt of Mb ttnrniD drATlM.

Dbo, l^EBit,

out of it, and had Always said he would be
4 satisfied with some negroes and cattle; that the
solicitor replied to mm, that without com-
plainant's title there could have been no recov-
ery; and that, whatever others had done, still
the title was in the complainant, and that he,
the solicitor, had undertaken the suit with the
distinct understanding and agreement that com-
plainant was to have a substantial interest in
the recovery^ The respondent denies that the
deed was drawn or executed the evening of the

r meeting, nor until several days afterwards.
These several answers are directly responsive
to the charges in the bill, and are to be taken
as true, unless overcome by the proofs. Instead
of impeaching, the proofs are aill in support of
them.

Primrose, a witness on the part of the com-
plainant, and who was one of the parties in
mterest, and present at this meeting, confirms
the facts as above stated. In his answer to 4dd
interrogatory, he says, in substance, that, after
conversation at the meeting relating to the sub-
ject before them, all seemed willing to leave the
division to the solicitor, who thereupon suggest-
ed one third to the complainant, and one sixth
to each of the others; that he (the witness) ob-
jected, as giving too great a share to the com-
plainant, and that he made some remarks about
the condition of the title, when he and the
others undertook the suit; that complainant at
that time had said he would be satisfied with a
comparatively small sum, and that the solicitor
replied to him, that the title to the property
was in the complainant, besides makine other
observations which he (the witness) did not
recollect.

This witness further says, in answer to the
48d cross interrogatory, speaking of the divis-
ion, *' AU but mvself did acquiesce. So far
as I could judge the complainant was satisfied,
and I was disappointed." ** Judge Campbell
maintained Collins' right to two shares against
me. The parties talked some of the matters
over freely and considerably. It consumed a
winter's evening, or greater part of it." ** I do
know Collins was pleased, and considered the
settlement fair, just, and liberal towards him."

Judge Campliell, the solicitor, has also been
a witness in the case. He states, that after
some reference to the subject at the meeting,
and interchange of views, one of the parties
stated that he was willing to abide by his
opinion as to the share he should be entitled
to, and others indicated a wish that he would
make some suggestions as to the proper adjust-
ment. In answer to which, he suggested a di-
vision of the property into six parts, and that
two should be assigned to the complainant;
that Primrose expressed dissatisfaction, insist-
ing the part to be assigned the complainant was
too large; that his title was good for nothing,
and that the success in the suit was owing to
the ability with which it was prosecuted ; that
complainant did not expect so large a share;
that he had said all he wanted was a few
negroes and some cattle.

The witness further states that he took pains
to answer these objections; and after some
further conversation, the parties left his office;
that he told them when they left to take into
consideration what had been said, and that if
he could be of any service to them, to call at his

284

office again; that no agreement was arrived
at that evening, and no papers drawn up of
any agreement between the parties; that the
deed of Februaiy, 1851, was not prepared by
him till several days after this, and that he had
not learned of its execution till the week i^ter
its preparation.

It is useless to pursue the inauiry further, as
the proofs in the case are all one way, and
show that there is no foundation whatever, not
even colorable, for the charge of fraud set
forth in the bill ^

Besides the entire want of proof to sustain
it, the evidence shows that possession of the
propertv^as taken by the parties Jointly, after
the settlement, in the summer of m51. Ex-
tensive and valuable improvements were made
in the course of the years 1852-'68, under the
direction of the complainant and others. The
sales in 1853 had amounted to $92,000, as stated
in the bill.

The property continued under the joint man-
agement of the parties for the period of some
three years, without compldnt or dissati^ac*
tion on the part of Collins, when suddenly,
without any apparent reason or changed con-
dition of affairs between him and his asso-
ciates, he seems to have taken up the delusion
that he had been circumvented and deceived
into an inequitable settlement of the estate
among the parties, in February, 1851, and for
the first time set up a claim to the whole of it.

It is suggested in the bill, that the large siles
made of the property in 1852- '53 afforded the
complainant the first evidence of the great
value of the estate; and it appears, from other
portions of the case, that the increased and in
creasing value of the property had the effect to
unsettle the views and opinions upon which he
had acted in the settlement with his associates
in February, 1851, and led to a strong desire to
recall and review them.

But this suggested ignorance of the great
value of the property at the time of the settle-
ment is against all the proof in the case. His
bill, filed against the heirs of Kennedy in April,
1844, for the recovery of this properly, contains
the following allegation : ' ' Your orator charges
that the said property was worth $20,000 and up-
wards in 1820, $75,000 in 1830, and is probably
worth $200,000 at this time."

The great value of the property, compared
with the consideration paid by Elennedy, was
a very material fact in the case. Besides, the
complainant had spent much of the time pend-
ing that litigation in the City of Mobile, in which
the property was situate, and must have been
familiar with its value, present and prospective.
He was then in the prime of life, and pos-
sessed of more than ordinary intelligence in
business matters, as is apparent from his cor-
respondence, to be found in the record.

Having succeeded in the recovery, and ob-
tained possession of the estate, he seems to have
forgotten the obligations he was under to his
associates. Their exertions and means had
been mainly instrumental in raising him from
poverty to affluence. They had tui vised him
of his claim or title to the property, col-
lected the necessary evidence to establish it,
employed the counsel, and even furnished him
(Collins) with the means of support, to enable
him to cooperate in the prosecution of the suit

68 U. 8.

Overton y. Chbek.

46-48

the litigation. The suit was severely
i)ted, and was of some seven years' dura-

^1 stronger evidence that, after his success,
ready to forget his obligations to those
contributing to it, is the fact that his
^r has not even escaped his insinuations
"^A^ faith in his connection with the suit,
^Bga it was disclaimed on the ar^ment by
his counsel; thus contradicting all his opinions
and feelings, stronglv and repeatedly expressed
pending the suit, 'and long after its termination
and the settlement between the parties. The
solicitor had no interest in the property or its
distribution. His fee was not depe^ent upon
it. He was, therefore, wholly disinllrested in
the matter, and well situated to act as the friend
of all parties in the settlement.

As we have already stated, before the com-
mencement of the suit, he refused to be con-
nected with it, unless the complainant should
be permitted to have a substantial interest in the
estate, and repudiated the arrangement by
which he was to receive onlv $10,000. After
the recovery, and in the settlement among the
parties, he stood firmly by this original under-
standing, and insisted that he should have a
double share. So far as appears from the evi-
dence, it is entirely owing to the sense of jus-
tice and firmness of Judge Campbell (the solicit-
or) that the complainant is now in the posses-
sion and enjovment of some $100,000 of his
patrimonial inheritance, instead of the $10,000
for which he himself had stipulated.
I7ie decree of the court below ia affirmed.

JOHN OVERTON. ROBERT C. BRINK-
LEY, ROBERTSON TOPP and JAMES
JENKINS,

ELIJAH CHEEK & GEORGE U. CHEEK.

(See 8. C, 28 How., 4(M8.)

Writ of error without eeal, ia void — omiesion of

writ, effect of.

When no writ of error has been certifled with the
transcript, and the paper purporting to be a writ
of error, t>eing without seal, was Toid, and two
terms of this court have intervened, not including-
the present term, since the transcript was certified
without a writ of error, the cause must be dismissed.

Argued Jan. iS, 1860. Decided Jan. £4^ 1860.

IN ERROR to the Circuit Court of the United
States for the District of West Tennessee.

This action was brought in the court below
by the defendants on a bond, in the penal sum
of $10,000

The trial in the court below resulted in a
verdict and judgment in behalf of the plaintiffs
for $4,750; whereupon defendants sued out
this writ of error. The facts upon which the
judgment of this court depend, appear in the
opinion of the court.

On motion to dismiss.

Mr. B« H. Oillet, for plaintiffs in error.

Meears. Davld^e and In^le, for defendants
inerrror:

See 3d How,

It is submitted —

1. That in order to give jurisdiction to this
court, the writ of error must be under the seal
of the circuit court, whose clerk is authorized
to issue it.

Act of Congress of May 8th, 1792, sec. 9; 1
Btat. at L., 278.

2. That the writ of error must be returned at
the ensuing term. If a term intervene, the ob-
jection is fatal.

HamiUon v. Moore, 3 Dall.. 871 ; The Virginia
V. Weat, 19 How., 182; ViUaloboa v. United
Statea, 6 How., 18; U. 8. v. Currv, 6 How.,
106.

8. That there must be annexed to and re-
turned with the writ, an authenticated tran-
script of the record. Without the writ, the tran-
script is filed without authority of law ; and a
writ of error without the record of the court to
be reviewed, or reasons for not returning it, is
not returned. Here the writ of errror comes
back as it went out. There is no return, and
hence no jurisdiction.

4. The writ does not appear to have been
filed in the circuit court.

Brooka v. Norria, 11 How., 204.

5. There was no citation and no legal evi-
dence of the waiver of the citation. The tran-
script filed does show that the citation was
waived; but that transcript is not legally
before this court, not having been return^ in
obedience to process.

6. That the transcript was not returned in
conformity with law and the rules of this
court

For the above reasons a motion is made that
this cause be dismissed.

Mr. Juatice McLean delivered the opinion of
the court :

This purports to be a writ of error to the Cir-
cuit Court of the United States for the District
of West Tennessee.

Bv reference to the transcript, it appears that
the judgment of the circuit court was rendered
the 16th of April, 1857. At the ensuing term
of the Supreme Court, the transcript was
filed.

It appears that a writ of error in the Circuit
court was allowed, in open court, and signed
by the clerk the 17th day of April, 1857, which
was returnable to the Supreme Court on the
first Monday of December, 1857. But this writ
had no seal, nor was it returned with the tran-
script to the Supreme Court. But on the 27th
of December, 1859, a paper was filed in the
clerk's office, in form of a writ of error, but
without a seal, and having no authenticatcxl
transcript annexed.

From this it appears that no writ of error has
been certified with the transcript, and that the
paper purporting to be a writ of error, which
was filed in December last, being without seal,
was void. Two terms of this court have inter-
vened, not including the present term, since
the transcript was certified, without a writ of
error.

i he eauae tnuat, therefore, be diamiaaedfor them
irregularitiea, without noticing othera apparent
on the record.

Cited-78 U. S. (0 Wall.), 496, 668.

S8o

1-19

SUFRBICB COUBT OF THB UnITBD StATBS.

Dec. Tsbm,

JOEL PARKER, Plff. in Br,,

f>.

ALONZO L. KANE.

(See S. C, 2S How., 1-19.)

State decision in paHiHon action, not inquir-
able into in collateral actionr— jurisdiction of
Wisconsin court — state decree informer chan-
cery suit, for same cause of action, conclusive
— unrecorded deed is inoperative as to bona
fide purcliosers in Wisconsin — complete de-
scription in deed, not controlled by more gener-
al one, nor by decla/rations or prior negotiations
of parties.

In ejectment to recover land in Milwaukee, this
court, conformably to their established doctrine,
recoirnize the validity and bindinsr operation of the
orders and decrees of a Wisconsin court in a parti-
tion action, and determine that this court cannot
inquire whether errors or irregularities exist in
them in this collateral action.

The jurisdiction of the Circuit Court of Milwau-
kee, under the Statute of Wisconsin, extends to
the ascertainment and determination of the rights
of the parties In matters of partition, and its de-
cree Is final and effectual for their adjustment. That
court also has power to quiet a disputed title.

The reversal of the decree of the Circuit Court by
the Supreme Court in a chancery suit to quiet the
title, and its decision that the g^uardian should
account for the proceeds of the sale in his hands,
implies that the recorded deed did not convey a
icfral title.

whether the voluntary dismissal of the bill, as to
the guardian, subsequently to its return in the cir-
cuit court, will qualify this decree, or limit its effect
as res judUxUa of the legal right, quosre.

Where a bill in chancery cause was for the
same as this ejectment suit, and the decrees of
the courts of Wisconsin in the chancery suit em-
braced the decision of the same questions as in-
volved here, they are conclusive of this contro-
versy.

A deed destroyed and never placed upon record
as to bona fide purchasers without notice, is inoper-
ative, under the Statutes of Wisconsin in relation
to the riglstry of deeds.

Where the description of the property conveyed,
as lots numbers one and six of the fractional quar-
ter, is a complete identification of the land, a more
general and less definite description cannot control
this : but whatever is inconsistent with it will be re-
jected, unless there is something in the deed, or
the local situation of the property, or the posses-
sion enjoyed, to modify the application of tnis rule.

It cannot be controlled by the declarations of the
parties, or by proof of negotiations or agreements
on which the deed was executed.

Argued Jan. 9, I860. Decided Jan SO, 1860.

IN ERROR to the District Court of the United
States for the District of Wisconsin.

This was an action of ejectment brought in
the court below bv Parker, the present plaintiff
in error, against the defendant in error, to re-
cover a certain tract of land situated in the
County of Milwaukee, in the State of Wiscon-
sin. Both parties endeavored to connect them-
selves with the title of one William E. DunfaAr
(who had received from the United States a
patent for the land in question), by certain con-
veyances and legal proceedings which are set
out in the opinion of the court.

The trial below resulted in a verdict and
iudgment for the defendant, and the plaintiffs
brought the case to this court on a writ of er-
ror. $

A further statement of the case appears in the
opinion of the court.

Messrs. A* W. Machen and B« J. Oit-
tbigBf for plaintiff in error:

1. The d^ from Dunbar to Montague, dated
Dec. 18. 1837, conveys one fourth part of all
the northeast quarter section 21, which lies east
of the river. The language of the description
is, "one equal, undivided fourth part of the
following-described parcel or tract of land, to
wit: parts 1 and 6, being that part of the north-
east quarter lying east of the Milwaukee River,
in section — , p. 21," &c.

The grammatical construction refers the
words " being that part of the northeast quar-
ter," &c., to the preceding words " parcel or
tract of land," and thus shows the parcel in-
tended to be conveyed.

Lots *'one and six" may be rejected, and
the description is perfect. Reject the latter
portion of the description, and nothing would
be conveyed.

It seems absurd to say that a part which may-
be rejected without impairing the efficacy of
the deed, should control and limit the part
which cannot be rejected, and leave a sufficient
description.

Evans v. Corley, 8 Rich. (S. C), 315; Abbott
V. Pike, 33 Me., 204; WortMngton v. Hylyer, 4
Mass., 196; Jackson v. Loomis, 18 Johns., 81.

The extraneous circumstances and cotem-
poraneous construction shows the same thing.

Salisbury v. Adams, 19 Pick., 253; Thatcher
V. Howland, 2 Met., 41; French v. Carhart, 1
N. Y., 96; Stone v. Clark, 1 Met., 378; i2c«lv.
Prop. Locks & Canals, 8 How., 289.

If, however, there were a well-founded doubt

Note.— TT/iat fe a Rufflcient delivery of a deed to
pass the. title. See note to Toinpktns v. wheeler, 41
U. 8. (16 Pet.), 106.

Cancellation or tmrrender of deed by parties; its ef-
fect on title.

Executed and recorded deeds under seal can be
surrendered and canceled only by other deeds un-
der seal. Acquiescence expressed by parol and
mutual understauding that a title shall be released
cannot be made a substitute for a deed of release
or surrender. Washintfton v. Ofirden, 1 Black, 460 ;
Suydam v. Deals, 4 McLean, 12.

A deed Is not avoided bv the seal beln^r torn off
by the srantor ; or by a third person with his con-
sent. Cutts V. U. S., 1 Gall., 69.

The i^rant is not affected by cutting out the seals,
and signatures and attestation of a deed after ac-
knowledgment and delivery. Frost v. Peacock, 4
Edw., 678.

If fl stranger tears the seal from a deed, it will not
invalidate it. Kees v. Overbaugh, 6 Cow., 746 ; Ev-
eiT V. Merwln, 6 Cow., 360.

where the seals of a deed are torn off it is for the
Jury to decide with what intent it was done. Palm.,
4a3 ; 1 Vent., 397 ; Bull. N, P., 268.

280

The cancellation of a deed wiU not devest proper-
ty which has once vested by transmutation of pos-
session. Marshall v. Fisk, 6 Mass., 32 ; Bottsf ord v.
Morehouse, 4 Conn., 650: Holbrook v. Tirrell, 9
Pick., 105 ; Hatch v. Hatch, 0 Pick., 311 ; Dando
V. Tremper, 2 Johns., 87 ; Lewis v. Payne, 8 Cow.,
76.

An unconditional delivery of a deed fairly made
cannot be revoked by any act of the party execut-
ing it. Woodman v. Coolbrooth, 7 Oreenl., 181;
Frlsbie v. McCarty, 1 Stew. & Port., 61.

Where A conveyed to B and took back a mort-
gage and they subsequently canceled and gave up
the deed and morteage, it was held that the legal
estate was in A. The mortgage passed the legal es-
tate to him ; and the cancelingof the deeds does not
devest property which has vested by transmutation
ofpossession. Jackson v. Chase, 2 Johns., 84.

Title cannot be devested by the destruction or
surrender of the grant. Thus, when A held an un-
recorded deed from B, and procured him to execute
a new deed to C, and destroyed the deed to himself,
it was held that the title remained in A, notwith-
standing C's deed was recorded. Kaynor v. Wilson,
6 HUl, 469.

63 U.S.

1859.

Pabkbb y. Eanb.

1-19

reBpecting the reference made by the explana-
tory woras, the deed must be construed most
favorably for the grantee.

lfa« V. Gittings, 2 H. & J., 880; Hawkins v.
Hundsan, 1 H. & McH., 623; Gocheco Man, Go.
y. W fattier, 10 N. H., 811, and cases cited.

2. If these constructions of the deed of De-
cember 18, 1887, is not admitted, the plaintiff
contends that he has a good title to that part of
the southwest quarter which is in controversy,
derived from the conveyance by Dunbar to Mon-
tague of one half of the quarter section in ques-
tion, in the spring of 1886, and the quitclaim
deed of Montague to the plaintiff, of December
30. 1850.

(tf ) It is clear that the legal title to one full
half of all that part of the northeast quarter of
section 21 which lies east of the river, passed
from the original deed from Dunbar to Mon-
tague in 1886.

{b) It was not revested or devested by the de-
livery up of the deed by Montague in 1837, nor
^ the destruction of it, if indeed it is destroyed.
The cancellation of the deed bv an agreement
of parties does not revest the title.

Parker v. Kane, 4 Wis., 12, and cases cited;
Affri. Ins. Co, v. FU&gerald, 16 Q. B., 428; 4
Eng. L. & Eq., 215.

A grantee who has thus surrendered his deed,
may perhaps be estopped from setting up his
title, or precluded from giving evidence of its
existence, where justice requires it; but the
plaintiff is not thus estopped, nor is he, upon
any sound principle, in any way precluded
from introducing evidence of the execution and
delivery of the deed of 1886, and setting up title
to the ten acres which he claims under it, five
of which are in controversy in this suit, unless
the deed of December 18. 1837, embraces this
tract, and thus gives him a valid title under
that deed

Blade v. Noland, 12 Wend., 175.

The party is precluded from offering evidence
of the deed, which has been canceled upon the
ground of estoppel.

Fbrrrar v. Farrar, 4 N. H., 195; Mussey v.
UoU, 4 Fost. N. H., 248.

The estoppel being founded upon equity,
extends no further than equity carries it.

D, <fc W, R. R. Co, V. Sparhawk, 5 Met., 469;
Brewer v. B. & W, R. R. Co., 5 Met.. 478;
Howard Y. Hudson, 2 El. & BL, 9; 2 Smith's
L. C, Am. ed., 1»55. 642, 648; Carpenter v.
T/umpson, 3 N. H., 204.

Again; it was not material that the first deed
was not upon record, because the purchases by
C. J. Kane were at judicial sales, and no notice
was necessary. ^

The rule caveat empHon applies to such sales.
The purchaser has no better title than the party
whose right is sold.

Bashore v. Whider, 8 Watts, 493; King v.
Gunnison, 4 Pa., 171; Chase v. Woodbury, 6
Cush., 148, 148; PhiUps v. Johnson, 14 B.
Mon., 172; ^Freeman v. HiU, 1 Dev. & B. Eq..
892; Dudley v. Cole, 1 Dev. & B. Eq., 486;
Simmons v. TiUfry, 1 Overt. (Tenn.), 274, 286;
Bank v. Martin, 7 Md., 842; Georgetown v.
Smith, 4 Cranch. C. C. 91.

A. L. Kane takes from C. J. Kane with actual
notice; but this is not essential, as he derives
his title from the judicial sales.

The bill in equity prosecuted by the plaint-
iff against Tweedy, Kane, Montague and
others, furnishes no bar to this suit. That was
a bill to obtain a reformation of the second
deed from Dunbar to Montague, and of the
deed from Montague to Fisk. in order that
those deeds should so describe the land as to re-
lieve the case from further controversy.

In determing the effect of the suit, the court
and decree will look to the whole record, and
not merely to what the counsel have caused to
be filed as a decree.

Bainbrigge v. Bnddeley, 2 Phil. Ch., 710;
Guest V. Warren, 9 Exch. (Wels., H. & G.),
879; Hob., 58.

The insertion, in a decree, of matter which
ought not to be there, cannot affect the right of
the parly entitled.

Holland v. Cruft, 8 Gray, 187; see Mondel v.
8teel,SlA.&W„ 868,872.

In fact, the Supreme Court of Wisconsin
understood the bill to be for a reformation of
the deed only. In the opinion it is said : ** The
cause or matter of complaint to relieve him,
from which the complainant filed his bill in
this cause, originated in a mistake committed
in the descriptive part of the deed executed on
Dec. 18, 1887," &c. ; and then it is said that
the cause for such a bill had occurred, and was
complete upon the delivery of the defective
deed.

The decree of the Supreme Court afiSrmed
the decree of the court below as to Kane,
Waldo and Brown, and reversed it as to all the
rest; by which the court doubtless meant to
affirm the decree so far only as it determined

Though the cancellation or redelivery of a deed
will not reinvest the title, yet it is competent for
one who has srranted land to A, to convey the same
land to B for a valuable consideration, and by the
consent and aerreement of A ; and equity will re-
strain A from settlniir up his title a^inst B.
Dennison v. Kly, 1 Barb., 610; Schut v. Large, 6
Barb., 373.

Surrender or destruction of a deed duly executed
and delivered will not devest the estate conveyed
by it. Nicholson v. Halsey, 1 Johns. Ch., 417 ; Par-
shall V. Shirts, 64 Barb., 99; Cranmer v. Porter, 41
Cal.,4<«2.

The cancellation or destruction of a deed once
duly executed and delivered, so as to become oper-
ative, is utterly ineffectual to reinvest the title in
the in^ntor, even though intended so to operate by
the parties. To produce this effect, there must be
a reconveyance or a decree of cancellation. Gir-
non V. Davis, 36 Ala., 589; Carver v. McNulty, 89
Pa. St., 478; Bchaefler v. Tithlan, 17 Ind., 463 ;
Chessman v. Whittemore, 23 Pick., 231 ; Kifener v.
Bowman, 53 Pa. St., 313.

Bee ZZ Uow.

Surrender of a deed given on a secret trust, does
not devest the title nor free the trustee from the
trust. Kimball v. Greig, 47 Ala., 230.

Tearing off the names of the grantors in a deed
with the mutual consent of all parties, will not op-
erate to reinvest the title, although done under the
supposition that such will be the effect. Steel v.
Steel, 4 Allen, 417.

Canceling of an unrecorded deed, by agreement
of the parties, with intent thereby to revest the ti-
tle in the grantor, as between them and all subse-
auent claimants under them, Im, in some of the
tates, permitted to operate as a reconveyance
and revest the title in the grantor. Mussey v. Holt,
24 N. H., 248 : Nason v. Grant 21 Me., 160 ; Eaulks v.
Bums, 16 N. J. Eg., 250 ; Beauchamp's Will, 4 T. B.
Mon., 961 ; see, also. Farrar v. Farrar. 4 N. H., 191 ;
Commonwealth v. Dudley, 10 Mass., 408 ; Barrett v.
Thorndike, 1 Greenl., 78.

Where one voluntarily surrenders a deed to be
destroyed, he cannot afterwards avail himself of
any obscurity or uncertainty in its contents. Jack-
son V. Gardner, 8 Johns.) 894.

287

1-19

Bttfbbmb Goubt of thb Unitbd Statba.

Dbg. Tebm,

the matters in issue. Brown had disclaimed,
and his disclidmer was not controverted. Kane
and Waldo had insisted upon the Statute of
Limitations of ten years, applicable to remedies
for mistakes; and the decree of the court below
and the court above, gave them the benefit of
it. A decree was entered against Tweedy, be-
cause he had not pleaded the statute.

The plaintiff submits, therefore, that the
plaintiff's equitable title to have relief, on ac-
count of the mistake in the second deed, Dun-
bar to Montague, and the deed Montague to
Fisk, were the only matters in issue in that
suit, and that he failed to sustain his suit
against Kane and Waldo, only upon the ground
that that remedy was barred by the statute.
This furnishes no bar to any other remedy
which he seeks, and no decree which the court
could enter would bar the present suit.

Bainbrigge v. BaddeUy, 2 Ph. Ch., 705;
Mason's Mrs. v. Alston, 9 N. Y., 28; Cal-
lander V. DUtrich, 4 Scott. N. R, 682; KeUey
V. Murphy, 26 Pa.. 78; Buttriek v. Holden,
8 Gush., 238; Pleasants v. Clements, '2 Leigh.
474; Hotchkiss V. NicfioU, 8 Day, 188; McNa-
mara v. Arthur, 2 Ball. & B., 858; Lessee of
WrigM v. Beklyne, Pet. C. C, 198, 202.

(a) The opinion, therefore, expressed by the
judge respecting the right of Montague and the
plaintiff to assert a title at law under the first
deed, may be regarded only as a mere dictum.

{b) As to the 8-16. the plaintiff could not set
up a legal title under the first deed, when the
bill was filed, unless the deed of 1^7 covered
the whole. He obtained Montague's quitclaim
deed by filing that bill. He was, therefore,
remediless at Taw, unless the description in the
deed from Montague to Fisk were construed to
pass the legal title to all the northeast quarter
21, and the plaintiff was not contending for
that construction in that case, because he was
not then asserting his legal title.

After all the discussion which the court saw
fit to offer upon that subject, its view of com-
plainant's case was *' entirely based upon a
mistake made in the description contained in
the deed from Dunbar to Montague, dated
Dec. 18. 1887, and not at all affected by the
cancellation of the prior deeds, showing that all
the opinion, excepting the first deed, w.as extra-
judicial.

Palmer v. Temple, 9 A. & E., 621 ; Unnerti^
V. MauU9by, 2 Jones, Eq. (N. C), 241 ; JV: E.
Bank v. Lewis, 8 Pick.. 118.

(c) It is clear that the decree of a court of
equity cannot be evidence of a legal title, or
operate as a bar to an action of ejectment.

Hickey v. Stewart, 8 How., 750; Neajie V.
Neafle, 7 Johns. Ch., 4.

(<Q Even if the issue had been the same, the
decree would be no estoppel, because the object
of the suit was different.

Behrens v. Sieveking, 2 N. Y. Cr., 602.

(tf) Decision of the court of Wisconsin,
founded upon the Statute of Limitations of that
State, does not bar a suit in the courts of Uie
United States.

Pease v. Peck, 18 How. , 695 ; Union Bank v.
Jolly, 18 How., 508; Suydam v. Broadnaa, 14
Pet., 67.

The second branch of the case relates to the
title of the plaintiff in lot one, and what is
claimed by the defendant to be lot six.

The Question arising is, whether any valid
and binaing partition has been made.

The plaintiff claims that in these proceedings
the Circuit Court of the first circuit in Wiscon-
sin, exceeded its jurisdiction.

IXArcy v. Ketehum, 11 How., 166.

It does not follow, because a court has
authoritv to render a judgment in a cause, that
any judgment which it may render in that
cause is within its jurisdiction, and therefore, if
wrong, merely erroneous.

8 How., 642; 11 Pick., 608.

It is a familiar principle of law. that any court,
when it is in the exercise of a special furisdic-
tion conferred by statutes, and quoadhoe like an
inferior court. The statutory bar must appear
by the proceedings to have been strictly pur-
sued

Thatcher v. PotoeU, 6 Wheat, 119; Shriwr ▼.
Lynn, 2 How., 48; WHUamson v. Berry, 8
How., 495; Watson v. BodeU, 14 M. & W., 69;
Shivers v. Wilsm. 5 Harr. & J., 188; Qittings v.
HaU, 1 Harr. & J., 28; Johnton v. Kraner, 3
H. & McH., 248; Jackson v. Brown, 8 Johns.,
459; Denning v. Corwin, 11 Wend., 647; Map-
hew V. Davis, 4 McLean. 219; Hardy v. Sum-
mers, 10 Gill & J. , 823 ; BosweU v. Otis, 9 How. ,
886, 848; 4 McLean, 262.

Upon these principles, the plaintiff alleges
that the jud^ent and proceedings in the ad-
mitted partition are void, and he alleges further,
that no partition has ever been completed.

See EUioU v. Btirsol, 1 Pet., 840; WOeox v.
Jackson, 13 Pet., 511; Beg. v. St. George, 4 £L
&B., 520, 525.

The action of the Supreme Court of Wis-
consin upon the appeal, except that part re-
versing the decree of the circuit court estab-
lishing the acts of surveyor, cannot serve to
cure any of the defects of jurisdiction.

Pease v. Peck, 18 How., 598; Latham v. Ed-
gerton, 9 Cow., 227; CarroUv. CarroU, 16 How..
275.

Upon the third branch of the case, the plaint-
iff claims the sale by the administrator of Don-
bar is void, because the guardian had not been
appointed to protect the interests of his minor
children.

Laws of Wis., 1889, p. 817,^sec. 29; p. 825,
sec. 4; p. 211. sec. 97; p. 298. sea 18; Messinger
V. Kintner, 4 Binn. , 97 ; Smith v. Riee, 1 1 Mass. ,
507; Bennett v. EamiU, 2 Sch. & Lef., 566,
577:

Mr. James S. Brown, for the defendant
in error:

1 . Can a man who, receiving the deed of some
piece of land, voluntarily destroys it and re-
sorts to parol proof of its contents and of the
extent of the grant to him, thus obtaining by
indirection what the law prohibits? We do
not deny that the title vested by a deed cannot
be revested by its destruction, nor do we deny
that the contents of the lost deed could be proven
by parol ; but when a party seeks to recover real
estate, he must establish his title bv legal proof.
If it was evidenced by a deed, ana the deed be
not produced, he must show its loss without
his default, or he will be prohibited from giv-
ing parol proof of its contents. In this case,
the testimony of the plaintiff shows that it was
destroyed by the grantee voluntarily, with the
very object of preventing its use as testimony.
He, therefore, was excluded by his own act, in

<» U.S.

iao9.

Parkbb y. Eanb.

1-19

•destroying the hk^est evidence, from a resort
to eeoondarj eTi<&noe.

Fam^Y, Fafrrar, 4 N. H.. 491.

This was established by the Supreme Ck>urt
of Wisconsin, as a rule of ru^ht and title be-
tween these very parties, and the plaintiff is
bound by it.

Farktr v. Kane, 4 ^is-.l^-

3. All the questions raised by the plaintiff in
Us suit of ejectment, have been decided against
him in the state courts and the highest tribu-
nals of the State.

A suit was instituted for the partition of lots
one and six, in which both the plaintiffs in this
««dt and the grantor of the defendant, were
parties.

See Rev. Stat, of Wis., 49, p. 570.

Ck>unsel reviewed the proceedings in this ac-
tion, and contended that they were final.

8. A bill for the partition of the southwest
40. acres was filed, in which Kane and Parker
were parties.

For the purpose of enabling the court prop-
•erly to adjudicate upon the interests of the par-
ties, and of establishing his rights to the ten
acres in question in this ejectment suit, Parker
filed his bill in chancery, in the nature of .a
cross-bill, setting forth substantially the same
facts upon which he here seeks to recover.

To this bill Kane and others filed answers,
-and a decree was entered confirming the title
of Kane, under the deed of the guaraian, and
Also disaffirming every right of Parker under
the alleged deed from Dunbar.

From this decree the plaintiff in this suit
<Parker) appealed to the Supreme Court of Wis-
consin ; ana by them the decree of the court
below was affirmed as to Kane, and the whole
matter was thereby disposed of.

Pivrker v. KofM et ai., 4 Wis., 1.

The whole matter thereby became res cKlfU'
•dieata, and no court can collaterally set aside
those decrees. ChnUd v. Stanton, 16 Conn.,
12; WendeU V.Lewis, 6 Paige. 288; Woodruff
▼. Cook, 2 Edw. Ch., 259; Bar^k of the U, 8, v.
Beverly, 1 How., 184; Kerr v. Watts, 6 Wheat.,
.550; Hopkins v. Lee, 6 Wheat., 109; Washing-
ton Bridge Go. v. Stewart, 8 How., 418; Out-
ram v. Morewood, 8 East, 846; Eastmure v.
Laws, 5 Bing. N. C, 450; Manchester Mitts,
Doug., 222.

And this court has, in cases where adjuca-
tions have bc^n made by inferior tribunals, re-
ooniized the necessity of leaving titles undis-
turbed.

Orignon v. Astor, 2 How., 819; see, also, U.
8, V. Booth, 21 How., 506; HaskeUv. Baout, 1
McCord Ch., 22; Kennedy v. Meredith, 4
Hon., 409; CampbeU v. Price, 8 Munf., 227;
WhUe V. Atkineon, 2 Call. 876; Dodd v. Astar,
2 Barb. Ch., 895; Schwrmann v. Weatherhead,
1 East, 541; Downer v. Oross, 2 Wis., 871;
CoUy. O^A:. 8 Wis., 829.

5. The grantor of the defendant was a pur-
•dhaserin ^od faith at the sale by the guardian.
The Stat, of Wisconsin protected him against
an unrecorded deed.

Rev. Stat 1849. p. 829, sec. 24; Rev. Stat.
1889, p. 180, sec. 10.

The language of the statute is so strong as
almost to exclude the question somtimes raised
as to Judicial sales; but the effect given bv
statute to the deeds both of guardian and ad-

^ee 22 How. U. S., Book 16.

mlnistrator, places them in the same condition
with deeds by parties.

Rev. Stat. 1849. p. 420. sec. 58; Rev. Slat.
1889, p. 284. sec. 21 ; p. 816, sec. 25.

6. At the hearing, an objection to the sale by
the administrator was made, because no' guard-
ian had been appointed by the court to repre-
sent the minor heirs. Our answer to this is
that all the steps prescribed by the statutes are
conceded to have been taken, and that the ap-
pointment of the guardian for that purpose
was not required. The administrator repre-
sented the estate.

Rev. Stat. 1889, p. 816; Orignon y.Aetor, 2
How., 819.

Mr, Justice Campbell delivered the opinion
of the court:

The plaintiff sued in ejectment to lecover
certain parcels of land included in the north-
east fractional quarter of section twenty-one,
in township seven north, of range twenty-two
east, in the district of lands subject to sale
at Green Bay, and are situated in the City of
Milwaukee.

The fractional quarter is subdivided into three
lots. Lot number one is north of a line run-
ning east and west, that bisects the quarter sec-
tion; lot number six corresponds to the south-
east Quarter of the Quarter section; and the
third lot is a tract of forty acres, and is known
as the southwest quarter of the northeast quar-
ter of the section, township and range ..above
mentioned.

A oatent issued to William E. Dunbar for
this fractional quarter, in 1887, from the United
States, in which the land is descrlb^ as " the
lot number one, and south half of the northeast
quarter of section twenty-one, in township
number seven north, of range twenty-two east,
of the district of lands," &c. In the same year,
Dunbar and wife conveyed to Richard Mon-
tague " one equal undivided fourth part of the
following-described parcel or tract of land, viz. :
Lots one (1) and six (6), being a part of the
northeast quarter lying east of the Milwaukee
River, in section number twenty -one, in town-
ship number seven (7) north, of range twenty-
two east," &c.

The plaintiff, upon the trial of the cause in
the district court, connected himself with this
deed (which was duly recorded) bv leeal con-
vevances. Besides the title under this deed, he
exhibited a title from Dunbar and wife to an
undivided fourth of the whole fraction; all of
which lies east of Milwaukee River. That
the plaintiff had, at one time, a title to an undi-
vided half of lots one and six, was not disputed;
but his claim to an undivided fourth of the
southwest quarter of the fraction, under the
deed of Dunbar to Montague, was a matter of
controversy.

The defendant connected himself with the
patent of Dunbar, by showing a sale bv the ad-
ministrator of his estate, under the authority of
the Court of Probate of Milwaukee, of an undi-
vided one half of the entire fractional quarter
patented to him, and a sale and conveyance
by the guardian of the heirs of Dunbar, of an
undivided fourth part of the southwest quar-
ter of the fraction, under a decree of the Cir-
cuit Court of Milwaukee, sitting in chancery,
and a purchase by perspns under whom he dlaims

19 28»

1-19

BtPBBMS COCBT OF TBX UNITED STATES.

Dec. Tebm,

The defendant, to repel the claim of the
plaintiff to any interest in the land pofleesaed
by him in lots numbers one and six, produced
the record of proceedings and decrees in the Cir-
suit Court of Milwaukee County, in chancery,
for the partition of those lots among the plaint-
iff and his co-tenants, with the latter of whom
the defendant is a privy in estate. This record
shows that a petition was made by the co-
tenants of the plaintiff for a partition of these
lots, according to their rights and interests.
The plaintiff was made a party, appeared and
answered, and there was a decretal order for a
partition. Commissioners were appointed to
divide the lots, who made a report to the court
that appointed them. That the plaintiff made
objections to the proceedings; was overruled,
and afterwards appealed to me Supreme Court.
That the Supreme Court revised the proceed-
ings of the circuit court, and affirmed its
decree in the most important particulars, and
gave some directions, which, being fulfilled to
the satisfaction of the circuit court, a final
order of confirmation, and to vest the title in the
the parties to their several allotments, was made.

The plaintiff objects to these proceedings:

1st. That there was no authority to make a
several partition between the complainants.
2d. There was no authority to make a partition
subjecting the land set off as his share to an
easement. 8d. There was no authority to make
a partition by a plat, without the establishment
of permanent monuments. 4th. There was no
reference to a proper person to inquire into the
situation of the premises, after the decree set-
tling the rights of the parties. 5th. The commis-
sioners had no power to set apart and designate
any portion of the land for sale, as they undertook
to do. 6th. The court did not ascertain and dis-
tinctly declare whether any part or what part
should be sold ; but its language was hypothet-
ical and uncertain. All the sul^equent proceed-
ings must fall, for want of the foundation of
such a decree. 7th. It does not appear that all
the commissioners met together, in the perform-
ance of their several duties, as required by the
statute.

The Statutes of Wisconsin provide for the
partition of estates held in common, by a bill
m equity, filed in the circuit court of the coun-
ty in which the land is, and for sale of the
premises when a partition would be prejudi-
cial to the owners. The court, upon the hear-
ing, may determine and declare the rights titles
and interests of the parties to the proceedings,
and order a partition. It may appoint commis-
sioners to execute the decree, who are required
to make an ample report of their proceedings
to the court, in which it can be confirmed or
set aside. When a partition is completed, the
court may enter a decree; and thereupon the
partition \a declared to be "firm and effectual
Torever," and "to bind and conclude" all the
parties ndmed therein.

The decrees are subject to the revising power
of the Supreme Court. In reference to the ob-
jections made by the plaintiff, it is sufficient to
say that some of them were inade in the courts
of Wisconsin without effect, and all might
have been urged there at a proper stage in the
proceedings. Kane v. Parker, 4 Wis. , 128.

That it sufficiently appears that the subject
was within the jurisoiction of those courts, an0

290

the proper parties were before them; and this
court, conformably to their estabUdied doctrine,
acknowledge the validitv and binding oper-
ation of these orders and decrees, and determine
that this court cannot inquire whether errors or
irregularities exist in them in this ooUateral
action. Thomp9o?iy, Tolmie, 2 Pet, 157; iSirig-
non V. Aatar, 2 How.. 319; Beauregard v. Neit
Orleans, 18 How., 407.

At the time that tbe partition of lots numbers
one and six was sought for, a petition was filed
in the same court by the same parties for a par
tition of the southwest quarter of the fraction-
al quarter section described in Dunbar's patent.
The plaintiff had an acknowledged interest in
that parcel, independently of his claim under
Montague, and was made a party to tliat suit.

In his answer to the petition he refers to
this claim under Montague, and the megfu ocm-
veyances that connect him with the deed of
Dunbar to Montague. He stated that, itbein^-
uncertain whether that deed of Dunbar would
be sustained as sufficient by the court to convey
a legal title to a fourth part of that pux^el, he
designed to file a bill in equity, for the purpose
of having his title ascertained, and to have his-
conveyances reformed, if need be, so that his
claim under that deed could be established and
confirmed. In the same month lie filed in the
same court a bill in equity against the heirs of
Dunbar and their guardian, and the purduiaers-
under the decrees, obtained by the administra-
tor and g^ardum, for the sale of the parcels in
the fractional quarter described in Dunbar's
patent.

He charges in this bill that Montague waa
eaually interested with Dunbar, kt the date of
his entry in the Land Office, in the entire frac-
tion, and furnished the money for the purpose
of making it; that Dunbar gave to Montague a
deed for one half, according to the description
in the certificate of purchase from the Register
of the Land Office. That by a subsequent con-
tract his interest was reduced to one fourth.
That his first deed not being recorded, he sur-
rendered it to Dunbar, who destroyed it. That
the deed for the fourth part was made to ful-
fill the agreement for title to a fourth of the
whole fraction; and that Dunbar represented
this deed to be sufficient, and during his life
acknowledged that it was sufficient, and that
Montague was a joint and equal owner with
him.

He avers that these facts constitute him the
owner of one fourth of the entire fraction,
either at law or in equity. He refers to the sales
of a larger interest than they really owned, by
the heirs of Dunbar, through their guudian^
and to the pendency of the suits of partition.
He prays that the court will require the defend-
ants in the bill to release their title to the inter-
est embraced in his claim, and that his convey-
ances may be reformed, if need be, to express
his legal and equitable rights; but if the court
should decide that the guardian of the children
of Dunbar had conveys a good and valid title
as against him, he prayed for a personal de-
cree for the proceeds of his sale. He also prayed
that this suit might be heard with the putiuon
suit of the claimants under Dunbar's adminis-
trator and the jpardian, and for all general and
equitable relief.

The purchasers asserted in their answers the

1859

Parker y. Eai^s.

1-19

superiority of their legal and equitable title, and
pl^ided t^t tliey were bona fide purchasers, and
all, except one, also pleaded the Statute, of Lim-
itations. The euardian answered, that he had
made the sale m good faith, under a valid de-
cree, and under the belief that his wards were
entitled to the estate.

The circuit court, upon the pleadinas and
proofs, dismissed the bill of the plaintiff, and
declared in the decree that the defendants had
a valid title as60iiajl(20 purchasers, not affected
by the r^^tered deed from Dunbar to Mon-
tague.

From this decree the plaintiff appealed to
the Supreme Court. That court affirmed the
decree of the circuit court as to all the pur-
chasers except one. They say the plaintiff is
not entitled to relief under we first deed of
DunbfU' to Montague, which had been de-
stroyed ; for, admitting that the destruction of
the deed did not disturb the title, nevertheless,
in view of the Statute of Frauds, and the rule
of evidence that Statute established, a grantee
in a deed, who had voluntarily, and without
fraud or mistake, destroyed his deed, could not
establish his title. One of the purchasers, who
had notice of the plaintiff's claim, and had
failed to plead the Statute of Limitations, was
decreed to release his title to the plaintiff,
and the guardian was required to account to
him for the price he had received. Parker v.
Kane, 4 Wis., 1. The defendant is a privy in
estate with the successful litigants in this
cause, and relies upon the decree as a bar.

We have seen that the jurisdiction of the
Cirouit C6urt of Milwaukee, under the Statute
of Wisconsin, in matters of partition, extends
to the ascertainment and determination of the
rights of the parties in matters of partition,
and that its decree is final and effectual for
their adjustment. That court is also clothed
with power, at the suit of a person having a
legal title and possession, to call any claimant
before it. to quiet a disputed title. Rev. Stat.
Wis.. 678. sec. 90; 417, sec. 84.

The bill seems to have been framed on the
distinct and declared purpose of obtaining
from the courts of Wisconsin an authoritative
declaration of the legal ss well as equitable
rights of these parties under their conflicting
titles, with a view to the partition of the entire
fractional quarter section, suits for which were
then pending; and the prayer of the bill, that
if the conveyance of the guardian " passed a
good and valid title against the plaintiff," that
then he might be indemnified by a decree for
the proceeds of the sale in the hands of the
guardian, submitted the legal as well as the
equitable relations of the parties, under their
respective titles, to the judgment of the court.

The reversal of the decree of the circuit
court by the Supreme Court, and their decision
that the guardian should account for the pro-
ceeds of me sale in his hands, is a direct response
to this prayer, and implies that the recorded
deed of Dunbar to Montage did not convey a
legal title to this fraction. We question
whether the voluntary dismissal of the bill, as
to Martineau, the ^ardian, subsequent to its
return in the cirouit court, will qualify this
decree, or limit its. effect as res judicata of the
l^^right 80 Miss., 66; 2 Froem. Ch., 168; 9
Simon, 411; Eng. Orders in Ch., 1846, n. 117.

See 22 How.

In Great Britain, a Chancellor might have
considered this as a case in which to take the
opinion of a court of law, or to stay proceed-
ing's in the partition and cross suits until an
action of law had been tried, to determine the
legal title. Baeheeter v. Lee, 1 McN. & G. , 467 ;
Chpp, V. Bramagham, 9 Cow.. 580. But such
a proceeding could not be expected in a State
where the powers of the courts of law and
equity are exercised by the same persons. The
parties to this ^ectment and the suit in chan-
cery court of Wisconsin are the same, or are
privies in estate. The same parcel of land is
the subject of controversy, and the object of
the suit, if not identical, is closely relat^l.

The object of the bill in chancery, as we
have seen, was to obtain from the court a de-
cision upon the legal and equitable titles of the
plaintiff, with the immediate view to a parti-
tion. If the decision had .been made in his
favor, it is true that a chtnge of possession
would not have taken place, as an immediate
consequence, but it would have conclusively
established the right of the pUintiff , either in
an action of ejectment or upon a writ of rieht

The object of the suit of the plaintiff in
chancery was to obtain a recognition of the
sufiSciency of his deeds, as entitling him to the
land, or to supply their defects, -or to afford
him indemnity, by subjecting the price that
his adversaries had paia for the land to a tor-
tious vendor having the legal title.

The object of the ejectment suit is to recover
^the land by means of the title disclosed in the
^deeds. A portion of the judges find in the
two suits eandem eausampetendi, and that the
decrees of the Circuit and Supreme Courts of
Wisconsin embraced the decision of the same
questions, and are conclusive of this contro-
versy. Bank of U. 8. v. Beverly, 1 How., 186,
But if the plaintiff is not concluded by » the
proceedings of the courts of Wisconsin, the
question arises, whether hts legal title will
support his claim to the interest in the south-
west quarter of the fraction.

The first deed from Dunbar to Montague
was destroyed before the second was m&e,
and it never was placed upon record. The de-
cree of the courts of Wisconsin shows Uiat the
purchasers of the guardian were bona fide pur-
chasers without notice. That deed is, therefore,
inoperative, under the Statutes of Wisconsin,
in relation to the registry of deeds. Territorial
Statutes of Wisconsin, 179. sec. 10; Rev. Stat,
of Wis., 829, 860, sees. 24, 84. 86.

We agree with the Supreme Court of Wis-
consin, that the recorded deed from Dunbar to
Montague did not convey any part of the frac-
tional quarter, except that contained in lots
numbers one and six. Lot number one is a
subdivbion of the fractional quarter section,
and is designated in the plat of survey, as well
as in the patent. Lot number six is referred to
in the pleadings and proofs as a known and
recognized parcel, corresponding with an of-
ficial subdivision ; and, upon referring to the
official surveys in the Gkneral Land Office, we
find that it is, as we had supposed it from the
evidence in the record to be, noted there. The
deed of Dunbar designates these subdivisions as
the corpus of his conveyance; and, as a further
description, adds, "beine that part of the north-
east quarter lying east of the ail waukee River. '*

291

1-19

BVFRBHB COOBT OF TBX UiaTED STATES.

Dec. Tbrm.

The defendant, to repel the claim of the
plaintiff to any interest in the land pofleesaed
by him in lote numbers one and six, produced
the record of proceedings and decrees in the Cir-
suit Court of Milwaukee County, in chancery,
for the partition of those lots among the p1aint>
iff and his co-tenants, with the latter of whom
the defendant is a privy in estate. This record
shows that a petition was made by the co-
tenants of the plaintiff for a partition of these
lots, according to their rights and interests.
The plaintiff was made a party, appeared and
answered, and there was a decretal order for a
partition. Commissioners were appointed to
divide the lots, who made a report to the court
that appointed them. That the plaintiff made
objections to the proceedings; was overruled,
and afterwards appealed to the Supreme Court.
That the Supreme Court revised the proceed-
ings of the circuit court, and affirmed its
decree in the most important particulars, and
gave some directions, which, being fulfilled to
the satisfaction of the circuit court, a final
order of confirmation, and to vest the title in the
the parties to their several allotments, was made.

The plaintiff objects to these proceedings:

1st. That there was no authority to make a
several partition between the complainants.
2d. There was no authority to make a partition
subjecting the land set off as his share to an
easement. 8d. There was no authority to make
a partition by a plat, without the establishment
of permanent monuments. 4th. There was no
reference to a proper person to inquire into the
situation of the premises, after the decree set-
tling the rights of the parties. 5th. The commis-
sioners had no power to set apart and designate
any portion of the land for sale,as they undertook
to do. 6th. The court did not ascertain and dis-
tinctly declare whether any part or what part
should be sold ; but its language was hypothet-
ical and uncertain. All the suMequent proceed-
ings must fall, for want of the loundaticm of
such a decree. 7th. It does not appear that all
the commissioners met together, in the perform-
ance of their several duties, as required by the
statute.

The Statutes of Wisconsin provide for the
partition of estates held in common, by a bill
in equity, filed in the circuit court of the coun-
ty in which the land is, and for sale of the
premises when a partition would be prejudi-
cial to the owners. The court, upon the bear-
ing, may determine and declare the rights titles
and interests of the parties to the proceedings,
and order a partition. It may appoint commis-
sioners to execute the decree, who are required
to make an ample report of their proceedings
to the court, in which it can be confirmed or
set aside. When a partition is completed, the
court may enter a decree; and thereupon the
partition is declared to be "firm and effectual
forever," and "to bind and conclude" all the
parties named therein.

The decrees are subject to the revising power
of the Supreme Court. In reference to the ob-
jections made by the plaintiff, it is sufi^cient to
say that some of them were inade in the courts
of Wisconsin without effect, and all might
have been urged there at a proper stage in the
proceedings. Kane v. Parker, 4 Wis. , 128.

That it sufficiently appears that the subject
was within the jurisdiction of those courts, anfl

290

the proper parties were before them; and this
court, conformably to their establidied doctrine,
acknowledge the validitv and bindlBg oper-
ation of these orders and decrees, and dcSermine
that this court cannot inquire whether errors or
irregularities exist in them in this collateral
action. Thompson y. Tolmie, 2 Pet, 157; Ong-
non V. AgUyi'y 2 How.. 819; Beauregard v. Nevr
Orleans, 18 How., 407.

At the time that the partition of lots numbers
one and six was sought for, a petition was filed
in the same court by the same parties for a par
tition of the southwest quarter of the fraction-
al quarter section described in Dunbar's patent
The plaintiff had an acknowledged interest in
that parcel, independently of his claim under
Montague, and was made a party to thai suit

In his answer to the petition he refers to
this claim under Montague, and Uie meme coa-
veyances that connect him with the deed of
Dunbar to Montague. He stated that, itbeinr
uncertain whether that deed of Dunbar would
be sustained as sufficient by the court to convey
a legal title to a fourth part of that parcel, he
designed to file a bill in equitv, for the purpose
of having his title ascertained, and to Isave his
conveyances reformed, if need be, so that his
claim under that deed could be established and
confirmed. In the same month he filed in the
same court a bill in equity against the heirs of
Dunbar and their guardian, and the purchasers
under the decrees, obtained by the administra-
tor and guardifm, for the sale of the parcels in
the fractional quarter described in Dunbar's
patent.

He charges in this bill that Montague was
equally interested with Dunbar, iiX the date of
his entry in the Land Office, in the entire frac-
tion, and furnished the money for the purpose
of making it; that Dunbar gave to Montague a
deed for one half, according to the description
in the certificate of purchase from the Register
of the Land Office. That by a subsequent ocm-
tract his interest was reduced to one fourth.
That his first deed not being recorded, he sur-
rendered it to Dunbar, who destroyed it. That
the deed for the fourth part was made to ful-
fill the agreement for title to a fourth of the
whole fraction; and that Dunbu* represented
this deed to be sufficient, and during his life
acknowledged that it was sufficient, and that
Montague was a joint and equal owner with
him.

He avers that these facts constitute him the
owner of one fourth of the entire fraction,
either at law or in equity. He refers to the sales
of a larger interest than they really owned, by
the heirs of Dunbar, through their guardian,
and to the pendency of the suits of partition.
He prays that the court will require the defend-
ants in the bill to release their title to the inter-
est embraced in his claim, and that his convey-
ances may be reformed, if need be, to express
his leeal and equitable rights; but if tiie court
should decide that the guardian of the children
of Dunbar had convey«i a good and valid tiUe
as aeainst him, he prayed for a personal de-
cree for the proceeds of his sale. He ^so prayed
that this suit might be beard with the partition
suit of the claimants under Dunbar's adminis-
trator and the guardian, and for all general and
equitable relief.

The purchasers asserted in their answers the

6Jl D. S.

1809

Parker y. Eanb.

1-19

superiority of their legal and equitable title, and
ploided that they were bonaflde purchasers, and
all, except one, also pleaded the Statute of Lim-
itations. The euardian answered, that he had
made the sale m good faith, under a valid de-
cree, and under the belief that his wards were
entitled to the estate.

The circuit court, upon the pleadinas and

§ roof 8, dismissed the bill of the plaintiff, and
eclared in the decree tliat the defendants had
a valid title as dona Jlefo purchasers, not affected
by the registered deed from Dunbar to Mon-
tague.

From this decree the plaintiff appealed to
the Supreme Ck>urt. That court affirmed the
decree of the circuit court as to all the pur-
chasers except one. They say the plaintiff is
not entitled to relief under Uie first deed of
DunbfU' to Montague, which had been de-
stroyed; for, admitting that the destruction of
the deed did not disturb the title, nevertheless,
in view of the Statute of Frauds, and the rule
of evidence that Statute established, a grantee
in a deed, who had voluntarily, and without
fraud or mistake, destroyed his deed, could not
establish his title. One of the purchasers, who
had notice of the plaintiff's claim, and had
failed to plead the Statute of Limitations, was
decreed to release his title to the plaintiff,
and the guardian was required to account to
him for Uie price he had received. Parker v.
Kane, 4 Wis., 1. The defendant is a privy in
estate with the successful litigants in this
cause, and relies upon the decree as a bar.

We have seen that the Jurisdiction of the
Cirouit Court of Milwaukee, under the Statute
of Wisconsin, in matters of partition, extends
lo the ascertainment and determination of the
rights of the parties in matters of partition,
and that its decree is final and effectual for
their adjustment. That court is also clothed
with power, at the suit of a person having a
legal title and possession, to call any claimant
before it. to quiet a disputed title. Rev. Stat.
Wis., 573, sec. 30; 417, sec. 84.

The bill seems to have been framed on the
distinct and declared purpose of obtaining
from the courts of Wisconsin an authoritative
declaration of the legal ss well as equitable
rights of these parties under their conflicting
titles, with a view to the partition of the entire
fractional quarter section, suits for which were
then pending; and the prayer of the bill, that
if the conveyance of the guardian " passed a
good and valid title against the plaintiff," that
then he might be indemnified by a decree for
Uie proceeds of the sale in the hands of the
guardian, submitted the legal as well as the
equitable relations of the parties, under their
respective titles, to the judgment of the court.

The reversal of the decree of the circuit
court by the Supreme Court, and their decision
that the guardian should account for the pro-
ceeds of we sale in his hands, is a direct response
to this prayer, and implies that the recorded
deed of Dunbar to Montague did not convev a
l^al title to this fraction. We question
whether the voluntary dismissal of the bill, as
to Martineau, the guardian, subsequent to its
return in the circuit court, will qualify this
decree, or limit its. effect as res judicata of the
le^ right 80 Miss. , 66 ; 2 Freem. Ch. , 158; 9
Simon, 411; Eng. Orders in Ch., 1845, n. 117.

See 28 How.

In Qreat Britain, a Chancellor might have
considered this as a case in which to lake the
opinion of a court of law, or to stay proceed-
ing in the partition and cross suits until an
action of law had been tried, to determine the
legal Utie. Boehester v. Lee, 1 McN. & G. , 467 :
Vhpp. V. BromagJiam, 9 Cow., 680. But such
a proceeding could not be expected in a State
where the powers of the courts of law and
equity are exercised by the same persons. The
parties to this ejectment and the suit in chan-
cery court of Wisconsin are the same, or are
privies in estate. The same parcel of land is
the subject of controversy, and the object of
Uie suit, if not identical, is closely related.

The object of the bill in chancery, as we
have seen, was to obtain from the court a de-
cision upon the legal and equftable titles of the
plaintiff, with the immediate view to a parti-
tion. If the decision had .been made in his
favor, it is true that a change of possession
would not have taken place, as an immediate
consequence, but It would have conclusively
established the right of the plahitiff , either in
an action of ejectment or upon a writ of right

The object of the suit of the pUintifT in
chancery was to obtain a recognition of the
sufficiency of his deeds, as entitling him to the
land, or to supply their defects, "or to afford
him indemnity, by subjecting the price that
his adversaries haa paid for the land to a tor-
tious vendor having the legal title.

The object of the ejectment suit is to recover
.the land by means of the title disclosed in the
Meeds. A portion of the judges find in the
two suits eandem eausampetendi, and that the
decrees of the Circuit and Supreme Courts of
Wisconsin embraced the decision of the same
questions, and are conclusive of this contro-
versy. Bar^ of U. 8. v. Beverly. 1 How., 185,
But if the plaintiff is not concluded by* the
proceedings of the courts of Wisconsin, the
question arises, whether his legal title will
support his claim to the interest in the south-
west quarter of the fraction.

The first deed from Dunbar to Montague
was destroyed before the second was nuMle,
and it never was placed upon record. The de-
cree of the courts of Wisconsin shows that the
purchasers of the guardian were bona fide pur-
chasers without notice. That deed is, therefore,
inoperative, under the Statutes of Wisconsin,
in relation to the registry of deeds. Territorial
Statutes of Wisconsin, 170, sec. 10; Rev. Stat,
of Wis., 8d9, 850, sees. 34, 84. 85.

We agree with the Supreme Court of Wis-
consin, that the recorded deed from Dunbar to
Montague did not convey any part of the frac-
tional quarter, except that contained in lots
numbers one and six. Lot number one is a
subdivision of the fractional quarter section,
and is designated in the plat of survey, as well
as in the patent. Lot number six is referred to
in the pleadings and proofs as a known and
recognized (jaroel, oorrespondinff with an of-
ficial subdivision ; and, upon referring to the
official surveys in the General Land Office, we
find that it is, as we had supposed it from the
evidence in the record to be, noted there. The
deed of Dunbar designates these subdivisions as
the corpus of his conveyance; and, as a further
description, adds, "beine that part of the north-
east quarter lying east of the ailwaukee River. '*

291

129-18d

Bttprbicb Ck>aBT of tsb Unttbd Statbs.

Dbc. Tbkm,

Louisiana, as seems to be the case, for the sale^
of plantations, such usage being reasonable,
should govern in the absence of a special agree-
ment.

Nothing is more common in our large cities
than to charge brokerage for procuring the loan
of money. This varies as the money market
rises or falls. One per cent., and sometimes
two. is charged for this service. The same
rule applies as to the sale of property. Where
the contract is fair, it is not perceived why
such compensation should not be paid, as
agreed by the parties, or by an established
usage.

Where the vendor is satisfied with the terms,
made by himself, through the broker, to the

fmrchaser, and no solid objection can be stated,
n any form, to the contract, it would seem to
be clear that the commission of the agent was
due, and ouffht to be paid. It would be a
novel principle if the vendor might a4)riciously
defeat his own contract with his agent by re-
fusing to pay him when he had done all that
he was bound to do. The agent might well
undertake to procure the purchaser; but this
beinff done, his labor and expense could not
avail him, as he could not coerce a willingness
to pay the commission which the vendor had
agreed to pay. Such a state of thinss could
only arise from an express understanoing that
the vendor was to pay nothing, unless he would
choose to make the sale.
The judgment cf the OircuU Oourtii affirmed.

Dissenting, Mn$r$. Justieen Giier and Ca-
tron.

atecl-81 N. Y., 4S4; 38 Am. Rep., 444 (83 N. T.,
38S).

BRYAN ROACH and DENNIS LONG,
Composing the Firm of Roach & Long,

Libit, and AppU. ,

WILLIAM CHAPMAN kt al.. Claimants of
the Steamer Capitol, and DANIEL ED-
WARDS AND JOSEPH MAILLOT, Sure-

ties.

(See 8. C, 2S How., 1»-18S.)

Contract far building thip or supplying her mate-
riaU, u not u maritime contract — local laws
cannot coi\for jurisdiction.

A oontract for buildiner a ship or supplylDv en-
fflnest timber, or other materials for her consiruo-
ttoD is, clearly, not a maritime oontract.

People's Ferry Co. v. Beers, 61 U. 8. (in B. 15),
affirmed.

Although the law of Kentucky may create a lien
in favor of the litMlants, yet the local laws can
never confer Jurisdiction on the courts of the
United States.

Submitted Jan. 18, 1860. Decided Jan. 30, I860.

APPEAL from the Circuit Court of then Uit-
ed States for the Eastern District of Louis-
iana.

The libel in this case was filed in the District
Court of the United States for the Eastern
District of Louisiana, by the appellants, who
claimed a lien under the general admiralty law,
and the law of the State of Kentucky, for $2,-
947.48, part of the price of the engines and

291

boilers of the steamer Capitol, built for and
furnished said steamer at Louisville, Ken-
tucky.

The said court entered a decree in favor of
the libelants. Tlie circuit oourt, on appeal,
reversed this decree, and dismissed the libel;
whereupon the libelants took an appeal to this
oourt.

A further statement of the case appears in
the (pinion of the court:

1/r. J. P. Be^Jajnin^.for appellants:

1 . As to the existence of a lien in favor of the
builder under the general maritime law, the
adverse opinion of the circuit court will not
be called in question, as the decision of this
court in the case of The People's Fbrry Co. of
Boston V. Beers, 61 U. 8. (in Rook 15), 898, must
be considered as conclusive on this point.

2. But a lien in this case was eiven, both by
the law of the State of EentucKy, where the
boat was built, and by that of the State of
Louisiana, where she was intended to be em-
ployed, and where the libel was filed.

Rev. Stat, of Ey., 148, sec 2; La. Civ.
Code, 8204.

This lien under the law of Kentucky, where
the contract for the work was made« was avail-
able for one year only from the time the cause
of action accrued, as against a purchaser with-
out actual notice.

The cause of action accrued on Jan. 5, 1855,
and the libel was filed within the year, viz. : on
Dec. 15. 1855.

8. The district court had jurisdiction to en-
force this lien.

Bead v. JTie Hull of a New Brig, 1 Story,
244; DavisY. A NewBrig, Gilp.. 478. 586; fhe
Young Mechanic. 2 Curt., 404; The Biehard
Busteed, 21 Law Rep., 601; 1 Pars. Mar. Law,
501, 499. note: 2 Pars. Mar. Law, 504, 505,
689, et seq.; The Superior, 1 Newb., 176; The
Chas. Mears, I Newb.. 197.

4. The lien thus created, was not devested
by the departure of the vessel from the port of
Louisville, nor by any subsequent change of
ownership, nor by virtue of any provision of
the law of Louisiana.

Liens of material men follow the vessel into
whatever hands it passes.

1 Pars. Mar. Law. 500, note; Sheppard ▼.
Taylor, 5 Pet., 675; The JSoop Canton, 21 Law
Rep., 478; T%e Chusan, 2 Story. 456.

But in the present case there has been no
bona fide change of ownership.

5. The taking of drafts for the unpaid bal-
ance for the price of the engines, was no waiver
of the lien. The drafts were offered to be sur-
rendered at the hearing of the district court.

The Nestor, 1 Sumn., 78; The Chusan, 9
Story. 465 ; Leland v. 7%^ Ship Medara, 2 Wood.
& M.. 92: Baym&nd v. The BUen StewaH, 5
McLean. 269; Sutton v. The Albatross, 2 WaXl,
Jr., 827; Bamsay v. AOegre, 12 Wheat., 611.

No counsel appeared for appellees.

iff*. Justice Grier delivered the opinion of
the court:

The libelants claim to have a lien on the
steamboat Capitol, for a balance due them for
machinery furnished in her construction. The
boat was built at Louisville, Kentucky, and the
libelants . furnished the boilers and engines.
Payments were made as the work progressed,

68 U.S.

1860.

New Orlbahb v. Gainbr.

141-144

:aDd bills of exchange taken for the balance due
-wdieT the Teasel was completed. These were not
paid. The boat left the Dort and the State, and
^as afterwards sold, ana became the property*-
-of the claimants.

Among other things, the claimants pleaded
to the Jurisdiction of the court. This plea was
sustained by the circuit court.

A contract for building a ship or supplying:
-engines, timber, or other materials for her con-
struction, is clearly not a maritime contract.

Any former dUcta or decisions which seemed
to favor a contrary doctrine were overruled by
'tlds court, in the case of ThePeople^s Ferry Co.
▼. BeerB, HQ How., 400.

It is said hero, that the law of Kentucky cre-
mates a lien in favor of the libelants; and that,
.as this case originated before the adoption of
our rule, which took effect on the 1st of May,
1858, it may, upon the principles recognized by
this court in Peyronx v. Howard, 7 Pet., 813,
be enforced in the admiralty. But (to quote
the langua^ of the court in Orkaiu v. Ph<Bbu$,
11 Pet., 184)," that decision does not authorize
any such conclusion. In that case, the repairs
of the vessel for which the state laws created
A lien, were made at New Orleans, on tide*
-waters. The contract was treated as a mari-
time contract, and the lien under the state
laws was enforced in admiralty, upon the ground
that the court, under such circumstances, had
Jurisdiction of the contract, as maritime: and
then the lien, being attached to it, might be
onforced according to the mode of administer-
ing remedies in the admiralty. The local laws
•can never confer jurisdiction on the courts of
the United States.*'

It i$ eiMr, therefore, that the judgment of the
CircuU Court, dumimng the libel for want of
4uriedietion, must be affirmed, without noticing
^her queetione raieed by the pleadings,

Cited-88 U. 8. (21 Wall.), 566, 502; 2 Ben., 406; 8
Ben.. 166; 5 Ben., 83; 1 Brown, 496; 2 Cliff., 88; 11
Blatcbf., 464; 1 Woods, 288, 294 ; 1 Law, 178,204; 5
Huffbes, 261, 282, 266; 1 Flip., 899, 436, 584, 696; 3
Saw., m ; 1 Am. Rep., 125 (100 Mass., 409) : 18 Am.
Hep., 272 (28 Ohio, 5(S^ ; 29 Ind., 280 ; 46 Ind., 479 ; 75
Pa. 8t., 80i.

"THE CITY OP NEW ORLEANS, Plff, in

Br.,

MYRA CLARK GAINES.

(See S. C. 22 How.. 141-144.)

Wh&re record shows nothing but regular judg-
ment, it unU be affirmed.

Where a cause, as presented to this court, simply
shows a Judgment lo favor of defendant In error,
with regular pleadings to warrant It, and beyond
this, contains nothing that this court can notice,
.as a court of error, the judgment below will be af-
firmed.

Argued Jan. 10, 1860. Decided Jan. SO, 1860.

IN ERROR to the Circuit Court of the United
States for the Eastern District of Louisiana.
The history of the case and a statement of
the facts appear in the opinion of the court.

Mr. J. P. Bei^aminy for plaintiff in error:

1. The judgment in the suit of Durell in the

state court, formed res judicata against Mrs.

dee 82. How.

0. C, 2265; PUeque v. Perrett, 19 La., 8)8.

When cited by the city to contest the claim
of Durel, the judji^ment by default taken
against her was equivalent to a joinder of is-
sue with him as to the right in question.

C. P., 800.

And upon the issue thus joined there was
final judgment against her.

Even if the proceedings and judgment in said
suit be not technically res judicata, they form
a valid estoppel.

Mrs. Gaines was cited and personally in-
formed by the Qity that Durell claimed pay-
ment of a sum which was supposed by the City
to be due to her. The court ordered her to be-
come a party and defend her rights, if any.
She chose to remain silent; to waive objection
to any payment to Durell; to permit the City to
pay him ; and is thereby estopped from now
pretending that the payment should be made to
her, and that Durell had no right to receive it.

Levistones v. Claiborne, 5 Kob. La., 196;
Dueros v. Fbrtin, 8 Rob. La., 165.

Messrs. F. Perin and P. Phillips, for de-
fendant in error:

It is doubtful whether any record ever came
up from the circuits so perfectly barren of
questions upon which a court of errors could
base the authority or proprietv of its revision,
as the one now presented, lliere is nothing in
the record to show anything that was done
upon the trial. The final decree merely recites
that " this cause having been argued and sub-
mitted on a former day, and the court having
considered the same, aoth now order, adjudge
and decree," &c. There was no note of evi-
dence, no objections made or reserved, no bill
of exceptions taken, and no facts even returned
by the court. The facts in the opinion of
the judge justified his decision, whatever they
were: but what they were can never be ascer-
tained by this record.

Mr. Justice Catron delivered the opinion of
the court:

The City of New Orleans instituted proceed-
ings by suit in a city court, pursuant to a
Statute of Louisiana, for opening two streets in
the City, and appropriating the private prop-
erty requisite for that purpose; and on the
tableau of assessment certain squares of ground
were put down as belonging to Mrs. Gaines,
and the damages done to owner fixed at $2,868.

The assessment was decreed to Mrs. Gaines
by the court where the proceeding was had;
and she brought suit on this judgment against
the City, in the United States Circuit Court.

The defendant (the City), by its answer, ad-
mitted the proceeding, and the damages as-
sessed on the property described in the peti-
tion ; but, in avoidance of the demand, averred
that a suit had been brought by one Durell
against the City, claiming that he was the true
owner of the property through which the
streets run, ana which the commissioners of
assessmentilad supposed to be owned by Mrs.
Gaines, and demanding payment to him of the
damages claimed by her; that in the suit, so
brounit by Durell Mrs. Gaines had been per-
sonafly cited as a party, at the instance of the
City, for the purpose of having the question
decided between her and Durell, as to the own-
ership of the property, and as to their respect -

295

864-880

BuFBHia GouiiT OF THB Uhitbd Statbb.

Dbc. Tsbm^

ive claims on the City for the sum awarded ;
and that in said suit judgment was rendered,
determining the question in favor of Durell:
and this Judgment is pleaded in har of the
present suit.

Various documents were exhibited with the
answer, and filed in the Circuit Court, on be-
half of the City, including a record of the suit
by Durell against the City, and the recovery of
the damages for extending the streets; but noth^
ing appears in the record showing that these
documents were given in evidence on the trial;
nor did the judge before whom the cause was
heard make any statement of the facts found
by him, as the usual practice is, where the cir-
cuit court in Louisiana tries issues of fact with-
out the intervention of a jury.

The cause, as presented to us, simpiv shows a
judgment in Mrs. Gaines' favor, with regular
plei^ings to warrant it; and beyond this, con-
tains nothing that this court can notice, as a
court of error.

It is ordered that the judgment bel&w, be of-
firmed.

WILLIAM H. A8PINWALL, J08BPH
W. AL80P. HENRY CHAUNCEY,
CHARLES GOULD and SAMUEL L.
M. BARBOUR. Plff*,

THE BOARD OP COMMISSIONERS OP

THE COUNTY OP DAVIESS.

(See B. C, 20 How., 8S4-880.)

County eubecriptum to rculroad, when eubfeet to
Indiana ChnstUuUan of 18^1.

By the Act of Inoorporatlon of the Ohio and Ml»-
siaflippi Railroad Company of the Uth February,

1848, and the amendment thereto of January Ifith,

1849. no such rlffbta to county subscriptions vested
in said Company as ezoluded the operation of the
new Constitution of Indiana, which took effect on
the 1st day of November, 1861.

By virtue of the said Acta, and of the election in
favor of subscription to the stack, the said Com-
pany acquired no such riffht to the subscription of
the defendants as would oe protected by the Con-
stitution of the ITnited States against the said new
Constitution of Indiaua.

Argued Jan, 16. 1860. Decided Feb. 6, 1860.

ON a certiflcate of division of opinion be-
tween the Judges of the Circuit Court of
the United States for the District of Indiana.
The case is fully stated by the court.

Mesare. Samael Jndaii« S. F. Vinton
and J. P. Benjamin, for plaintiffs:

On the first Monday in March, 1849, an elec-
tion was held in the County of Daviess, to de-
termine whether the said county should sub-
scribe for stock in the O. & Miss. R. R. Co.

At such election a majority decided in favor
of subscription.

By virtue of this election, it became the duty
of the County Commissioners to subscribe for
$a0.000 of the stock, and it became the right of
the Company to have such subscription.

NOTS.— What lawt are void as impairing obliacitUm
of eontraeta; repeaH or modijleaiion of StattUe; wst-
ed rights. See note Fletcher v. Peck, 10 U. S.. (6
Cranch), 87. ConetitutionalUy of law altering char--
ter as impairingcmitracU See note to Dart. Coll. v.
Woodward, 17 U. 8. (4 Wheat.). 618.

3»«

On Sept. 10, 1862. the defendants subscribed
for the stock, and afterwards issued the bands-
with the coupons which are the subject of this,
suit.

The new Constitution of Indiana took effect
after the election and before subscription, Nov.

1, 1851.

The only Question is, does it operate in this-
case? It forbade such a subscription unless on
cash payment. The O. A Miss. R. R. Com-
pany was incorporated by an A.ct of Indiana,
approved Feb. 14, 1848. The power of the-
Company as to stock is ver^ ample. By section

2, five millions of capital is authorized, witlv
power to the directory to add shares without
limit by subscriptions or by sale. By section 6,
all persons of lawful age, and all. corporations,
of the United States, may subscribe for stock,
and the Company may, at any time or place,
sell stock to any amount on such terms as shall;
be thought proper. Sec. 12 is as follows:

*' It shall be lawful for the ooun^ commis-
sioners of any county in the State through
which said Railroad passes, for and in behalf
of said county to authorize by order on their-
records so much .of said stock to be taken in
said railroad as they may deem proper, at any
time within five ^ears after the openine of tbe-
books of subscription to said stock. To this-
provision there is this further: " that it slial] be
the duty of said County Commissioners in any
county, so to subscribe for and on behalf or
said county, if a piajority of the qu&lifled vot-
ers of said county, at any annual election with-
in five years, &c., shall vote for the same."

The Commissioners did not subscribe, the
people did not vote at any annual election; so-
an amendment to the Act of Incorporation was-
enacted Jan. 15, 1849. By this Act, special
provision was made for a special election on the-
first Monday of March, 1^9, and it was pro-
vided •* that if a majority of the votes eiven be
in favor of subscription, the Commissioners
shall subscribe for Daviess County not less thaa
$80,000; and in the hist section of these Acts,
it is declared that each shall be considered a
public Act and shall receive a libend construc-
tion.

There is another remark to be noticed. The
Acts are in pari materia, and tx^ be construed
together.

The first question on which the Judges dif-
fered, relates to the nature of the right granted,
by the Act of Incorporation, and by the amend-
ment to that Act to the Railroad Company, to-
receive county subscriptions. In other words:
was it a vested right, beyond the reach of a law
or Constitution made afterwards?

There is no provision in the new Constitution,
of Indiana as to existing rights, either personal
or corporate, except the ordinary declarations:
" no man's property shall be taken by law with-
out just compensation" ^art. 1, sec. 21), and,
" no law impairing the obligation of contracts
shall ever be passed."

Art 1, sec. 24.

We assume that the properly of private cor-
porations is protected by section 21.

Bf the Act of Incorporation, a capital of five
millions is contemplated; but the CompanV is
allowed to organize on the subscription of $200, -
000, and a payment at the time of subscription is-
required. By the 12th section, counties are au-

68 U.H.

18W

AapiNWALL y. Gom'bs of DAViBaa Couhtt.

8<Mr^9a

thorizad to subscribe for ^tock, as by the 6th
section aU persons of lawful age, and all cor-
porations of the U. 8., may subscribe. Does
the power exist anywhere to restrain these
rights against the win of the Company? If the
company may be deprived of one of these
classes of subscribers, it may be deprived of all,
and Uius its entire capacity may be destroyed,
and itself in effect annihilated.

But it is argued that counties are municipal
corporations; that municipal corporations are
unaer the control of state legislation ; and that
those who contract with them, contract subject
to this control. And we answer: it is true that
municipal corporations are sublect to the con-
trol of the Le^slature. If the Legislature
creates a municipal corporation and endows it
with other powers; with powers '* to contract
and be contracted with; with powers of a
private, and not of a political nature; with
poweiB including the rights and duties and ob-
ligations of private corporations and individ-
uals; does it not create an exception as to such
rights, duties and obligations? In such case
the Legislature may control, mav dissolve the
Corporation; but the rights, the duties and ob-
ligations will remain chargeable on its property.

Mumrna v. Pokmac Co,, 8 Pet., 281; Chtrran
V. 8taU of Arkansas, 15 How., 810.

The second question covers more ground than
the first.

The question is: whether by virtue of the
Act of Incorporation, and the amendment, and
the eloctton, the Railroad Company acquired
such rifffat to the subscrif^ion as would be
protected by the Constitution of the United
Statea.

This only differs from the first question, in
being, if anything, stronger than the first in
favor of the plaintiffs. In the first, a mere
right dependent on a certain discretion is
claimed; in this, a right is claimed so perfected
that nothine remained but the discharge of a
ministerial dutv.

The law is plain: ''And'if a majority of the
votes given shall be in favor of subscription,
the County Board of said County shall sub-
scribe.

Sec 2, Act Jan. 15, 1849.

There ib no discretion. There is only a duty ;
and this, by the law of Indiana, may be en-
forced by mandamus.

Sec 789; sec. 745, 2 Rev. Stat., pp. 197,198.

Hence, when the new Constitution took ef-
fect, there was an absolute vested right in the
company to $80,000 subscription from the
County of Daviess, to be paia in bonds of a
certain description ; and we submit, that this
right is a matter of contract, secured by the
Constitution of the United States.

Planters* Bank v. Sharp, 6 How.. 801 ; Slack
V. Lex. 4b MaysmOe R. B. Co., 18 B. Mon., 1;
12 B. Mon., 150.

Messrs. McDonald A Porter* for defend-
ants:

By the Statutes of Indiana, count j commis-
sioners are bodies '* corporate or politic.'*

1 R. S. of 1852, p. 225.

Touching the matter in controversy, the first
Act which they performed — that of subscribing
the stock — ^they performed as a Corporation on
Sept. 10, 1852. And the question is: did the
Constitution of 1850 prohibit that Act? We say

See 22 How.

it did. And in support of this view, we suggest
the following considerations:

I. The constitutional prohibition is, that "No
county shall subscribe for stock in any incor-
porated company, unless the same be paid for
at the time of such subscription. " The spirit
and intent of this clause seem very plain. Cer-
tainlv the design was to prohibit counties from
involving their people in debt for corporation
stocks. And it is equallv certain that any sub-
scription by which such a debt is created, is
within the prohibition. Nor is it less clear that
the prohibition applies to all such debts, wheth-
er created directlv or indirectly, ' for such
stocks. The mischief intended to be guarded
against, was the burdening of. the people with
taxes to pay debts contracted for corporation
stocks. And the power to impose that burden
in any manner, is the thins prohibited.

II. Was the stock paid for at the time of the
subscription?

The existence of this suit is an answer to the
question.

The phraae ''paid for at the time" in the
Constitution, certainly means more than the
making of a promise or obligation to pay.

Payment is a technical term, and in strict-
ness implies the discharge of a debt bj the de-
livery oi money. Thus in pleading, if the de-
fense Is that we have done what we engaged to
do, we allege in cases of engagement to do
something l^ides paying money, performance,
and in cases of money debts, we plead pay-
ment. The Supreme Court of Indiana has
held, that a plea of payment in anything else
than money is a bad plea.

Sinard v. Patterson, 8 Blackf., 858.

The two words " debt" and '* payment," al-
ways refer to money.

The constitutional provision in Question re-
quires that the stock subscribed "be paid for
at the time of such subscription." Payment
must be simultaneous with the subscription. If
in this we were wrong, still it does not appear
that the payment alleged in the declaration was
made " at the time " of the subscription. The
averment is that '* afterwards, to wit: on the
day and year aforesaid, in payment for said
stock," the bonds were issued.

The declaration says, that "in conformity
with said Acts, the defendants subscribed for
800 shares," &c., "of the value of $80,000."
The subscription, then, was "in conformity
with the Acts." These Acts give the form of
the subscription. It is found in the 5th section
of the charter of 1848 thus:

" We whose names are subscribed hereto, do
promise to pay to the President and Directors
of the Ohio and Mississippi Railroad Company,
the sum of fifty dollars for every share of stock
set opposite to our names respectively, in such
manner, proportions and times as shall be de-
termined by said Company, in pursuance of the
charter thereof."

This is the only form of subscription given
in the two Acts. Section 5 of the charter re-
Quires this form to be pursued. Both by the
declaration and the charter, it must be sup-
posed to have been pursued in the subscription
under consideration.

Now, as the engagement was to pay in money,
the delivery of something else — bonds, for ex.
ample— could not in any event amount to pay

297

864-880

SUPKBMB COOBT OV THB UXfTTBD StaTBS.

Dbo. Tsbm,

ment, unless accepted by the company as pay-
ment.

ifoaf V. Miller, 1 Wash. C. C, 828.

The Supreme Court of Indiana has given a
construction to the prohibitory clause in the In-
diana Constitution. They say : " This section
by implication concedes the power to counties
to take stock, at all events by permission of the
Legislature, in companies chartered to construct
works of internal improvements, under the new
Constitution, by making cash payment at the
time."

The City of Aurora v. WeU, 9 Ind., 78.

Cash payment is the meaning of the section.

Even if the stock was paid for at the time,
still the transaction was clearly in violation of
that part of the Indiana Constitution which de-
clares that no county shall ** loan its credit to
any iDCorporated company."

Undoubtedly the issuance of the bonds in
question, was lending the credit of the county
to this Bailroad Company. This was the prime
object of the transaction. The bonds were
drawn in the usual form to be put into the
market. Thev were put into the market or the
plaintiffs would never have got them; and put-
ting them into the market was using the credit
of the county, which it had loaned to the Com-
pany.

III. It is said by the plaintiffs that the vote
to take stock given by the people of Daviess
County, before the Constitution of 1860. took
^ect, amounts to a contract, the obligation of
which is protected by the Federal Constitution
against the prohibition in the Constitution of
Indiana.

The plaintiffs claim, first, that the vote
amounted to a " contract ** within the 10th sec-
of the 1st article of the Federal Constitution ;
and second, that the prohibition in the Indiana
Constitution is in violation of the Company's
charter, which permits "the county commis-
flionersof any county through which the railroad
passes" to subscribe stock. Let us examine
each of those points:

1. Did the vote of the people amount to a
''contract" which the Federal Constitution
protects? We say no; for that vote was not a
contract at all. "A contract is an agreement,
upon a sufficient consideration, to do or not to
do a particular thing. " "An agreement " is the
bindmg assent of both parties. This aggregaUo
mentium is indispensaole to every contract. In
this sense the people of the county could not
by vote enter into an "agreement," for thev
are not a body politic; and uiey cannot be sued.
It is the Board of Commissioners that can agree,
not the voters. This contract is not alleged to
have been made with the voters, but with the
Commissioners. Not the voters, but the Com-
missioners are sued. If the vote amounted to a
contract, it was the contract of the voters; and
it will be time enough when these voters are
sued, to inquire whether they contracted. It
is for the present enough to know that the pres-
ent defendants, the £k>ard of Commissioners,
never contracted till after the Constitution of
1850 took effect.

And if the voters had power to make a con-
tract by a vote to take stock, still their vote could
not amount to a contract, till the Company also
agreed. To a contract there must of course be
the assent of both parties. Now, it does not ap-

208

pear by the record that the Railroad Company
ever assented to this supposed contract, tiU
the time of the subscription on which, as we
have seen, was long after the constitutional pro
hlbition took effect. As, then, there was no
assent by both parties till after the flret day of
November, 1851, there could have been no
contract till after that day. And as the mak ing
of the contract after that day was prohibited
by the Indiana Constitution, there could not
have been in the case any contract protected by
the Federal Constitution.

BaU, and 8u9. B. B. v. NMit, 10 How, 896.

2. Is the prohibition in the Indiana Consti-
tution in violation of the Company's charter,
which provided that county subscriptions of
stock might be taken? In other words, since a
charter is in some respects and in some sense a
contract, is the provision in the charter of the
Ohio and Mississippi Railroad Company, allow-
ing counties to subscribe for stock therein, such
a contract as is contemplated by the Federal
Constitution?

The proviidons of the charter give no vested
right or property to the Company; they merely
bestow on counties the power to subscribe for
stock — ^a power which, by the general lawa of
Indiana, did not before exist. They merely
operate as enabling Acts — as Acts removing dis-
abilities.

"That the framers of the Constitution did
not intend to restrain the States in the regula-
tion of their civil institutions adopted for inter-
nal govemment,«is admitted ; and it has never
been so construed."

Story, Const., sec. 1892.

Undoubtedly the Indiana Legislature might
at any time repeal all laws incorporating counties
and county boards, and thus disable them from
subscribing for any stock or making any con-
tract. Nor is it to be for a moment tolerated,
that the Legislature of Indiana, by mntinij a
charter to a railroad company, could have in-
tended to abandon any portion of its legislative
power over the counties of the State.

As every charter stands, all natural persons
not laboring under disabilities, may take stock.
But who ever thought that the Le^slature may
not, after the grant of the charter by law. im-
pose liabilities on some of these natural persons?
Suppose that at the time of the passage of a
charter, married women were by law capable
of contracting by subscribing for stock, can it
be said that the Legislature cannot afterwards
by law impose on them the usual disability of
femes covert f So we think it clear that the
Constitution of Indiana might impose on the
counties the disabilities in question.

In the case of Bichmond, de, , B. B, Go. v.
The Louisa B. B, Oo„ 18 How., 71. where the
Legislature of Virginia, in a charter, gave a
pledge not to allow any other railroad to be
constructed near the one chartered, and after-
wards another railroad was chartered contrary
to that pledge, it was held that the first charter
was not violated within the meaning of the
United States Constitution touching the obliga-
tion of contracts. That was certainly a much
stronger case than the one now under diaciis*
sion; and as long as it stands for law, surely the
defendant in this case is safe.

The case of Gov. and Lex. B. B. Oo. v. Ket^
ton Oo. Oourtf 12 B. Mon.. 144, is in point on

6t U.S.

1860.

AspiNWALL ▼. Com'bs of Dayhess Gouktt.

864-^80

this question. There the charter of the Com-
pany had authorized the county court, under
41 certain vote of the people, to subBcribe etock.
The people had voted for it, but the county
«ourt renised to subecribe, and in the mean-
time the Legislature repealed the provision of
the charter authorizing county subscriptionB.
This repeal was held no nolation of a contract, be •
cause "until an actual subscription of the stock
was made no right to it vested m the Company."

Upon the whole, we submit that it is perfectly
•clear that the question propounded in this case
for the decision of the court, ought to be de-
cided in the affirmative.

The following direct answers to the questions
•certified to this court are from the order of the
court made in this cause:

*' It is the opinion of this court!

ist. That b^ the Act of Incorporation of the
Ohio and Mississippi Railroad Company, of
Feb. 14,1848,and the ftmendment thereto of Jan.
15» 1849, no such right to county subscriptions
nested in said Company as excluded the opera-
tion of the new Constitution of Indiana which
took e£fecton Nov. 1, 1851.

2d. That by virtue of the said Acts, and of
the said election in the declaration set forth, the
Ohio and Mississippi Railroad Company ac-
•Quired no such right to the subscription of the
defendants as woidd be protected by the Con-
stitution of the United States against the new
Constitution of Indiana, which took effect on
Nov. 1. 1861.

Mr. Juitice Nelson delivered the opinion of
the court:

The case comes up from the Circuit Court of
the United States for the District of Indiana.

Tills suit was brought by the plaintiffs against
the Board of Commissioners of the County of
Daviess, to recover two installments of interest
accruing upon certain bonds issued bv the Board
for stock subscribed to the Ohio and Missisippi
Railroad Company; and on the hearing the fol-
lowing questions arose, upon' which the Judges
of the court divided in opinion:

1. Whether, by the said Act of Incorporation
of the said Railroad Company, and the amend-
ment thereto of January 15, 1849, any such
right to county subscriptions vested in said
Company as^would exclude the operation of the
new Constitution of Indiana, which took effect
on the 1st day of November, 1851.

2. Whether bv virtue of the said Acts, and
of the paid election in the declaration set forth,
the Ohio and Mississippi Railroad Company
acquired any such right to the subscription of
the defendants as would be protected by the
Constitution of the United States against the
new Constitution of Indiana, which took effect
on the 1st day of November, 1851.

The charter of the Railroad Company, passed
February 14, 1848. provides that it should be
lawful for the county commissioners through
which the road passed tp subscribe for stock on
behalf of the county, at any time within five
years after the opening of the books of subscrip-
tion, if a majority of the qualified voters of said
county, at an annual election, shall vote for the
same.

The amended Act of January 15, 1849, made
the holding of the election in the county per-
emptory on the first Monday of March (then)

See 3al How

next, to determine the question of subscription
or not to the stock.

The election was held in pursuance of this
law, and a majority of the votes of the county
cast in favor of the subscription. This was on
the first Monday of March. 1849; and on the
10th September, 1852, the Board of Commis-
sioners, in pursuance of the Acts and of election
aforesaid, subscribed for six hundred shares of
the stock of the Railroad Company, of the value
of $50 per share, in the whole amounting to
$80,000, and in payment of said stock issued
thirty bonds, of $1,000 each, duly signed and
sealed by the president of the Board of Com-
missioners, ana attested by the auditor of the
county, and delivered the same to the president
and directors of the railroad company. By the
terms of the obligations, they were made pay-
able at the North River Bank in the City of
New York, twenty five years from date, to the
Railroad Company or bearer, with interest at the
rate of six per cent, per annum, payable annu-
ally on the 1st March, at the bank aforesaid,
upon the presentation and deliveiy of the proper
coupons attached, signed by the auditor of the
said county. The plaintiffs are the holders and
owners of sixty of these coupons.

The new Constitution of the State of Indiana
contains the following provision:

" No county shall subscribe for stock in any
incorporated company, unless the same be paid
for at the time of such subscription; nor shall
any county loan its credit to any incorporated
company, noi borrow money for the purpose
of taking stock in any such company."

Sec. 6, art. 10, Constitution, of Indiana.

This Constitution took effect on the 1st No-
vember, 1851. The subscription was not made
nor bonds issued by the Board of Commissioners
of the county, as we have seen, until the 10th
September, 1852, The question therefore arises,
whether the subscription and bonds, thus made
dnd issued after the Constitution went into ef-
fect, were not forbidden by the 0th section of
of the 10th article above cited and? therefore,
null and void.

The precise question first presented bv the
court below, upon which the Judges divided, is
as follows:

Whether, by the said Act of Incorporation of
said Railroad Company, and the amendment
thereto of January 15, 1849, anjr such right to
county subscriptions vested in said Company as
would exclude the operation of the new Consti-
tution of Indiana, which took effect on the 1st
November, 1851.

The question admits, at least by implication,
that this Hth section of the Constitution ap-
plies to the acts of the Board of Commissioners,
in making the subscription and issuing the
bonds; but presents the question, whether, at
the time it went into effect, there was not such
a riffht to the subscription and bonds vested in
the Railroad Company as could be upheld, no^
withstanding the constitutional prohibition?

This view is sought lo be sustained by force
of the 10th section of the 1st article of the Con-
stitution of the United States, which provides
that no State shall pass any law "impairing the
obligation of contracts."

The argument is, that the provisions in the
railroad charter and amendment, conferring
power upon the Board of Commissioners of the

209

88-87

SUFRBkB GOUBT OF TKB URITBD STATJBI.

Dbc. Term,

county, and makinff it their duty to subscribe
for stock, and issue bonds therefor if amalority
of the (fualifled voters of the coun^ should de-
termine at an election in favor of the same, im-
port a contract with the Railroad (Company on
behalf of the State, which is protected by the
clause referred to in the Constitution of the
United States; and hence the state constitu-
tioniU prohibition is inoperative to annul the
subscription or the bonds That this right to
the subscription and bonds, resting upon a con-
tract in the charter, is unaffected by any subse-
quent statute or organic law of the State.

Without stopping to inquire whether or not
the power conferred upon the Board of Com-
missioners in the charter and amendments of
the Railroad Company, in the form and with the
conditions therein mentioned, constitutes a con-
tract, the court is of opinion that, in view of the
body upon which the power is conferred, and
of the nature of the power itself, no such con-
tract existed, if any, as is contemplated by this
clause of the Federal Constitution. The power
or authority contained in the charter, and out
of whidi the right in question is claimed to
arise, is c6nferrra upon the county, a public
corporation or civil institution of government,
and upon public officers employea in adminis-
tering laws; and the power or authority itself
concerns this body in its public political capac-
ity.

ChftfJuitiee Marshall observed, in Dartmouth
CoUege V. WoadtoardA Wheat. .627, that the word
" contract," in its broadest sense, would com-
prehend the political relations between the Gov-
ernment and its citizens; would extend offices
held within a State for state purposes, and to
many of those laws concerning civil institutions,
which must change with circumstances and be
modified by ordinary legislation, which deeply
concern the public, and which, to preserve good

fovemment, the public judgment must control,
tut, he observes, the framers of the Constitu-
tion did not intend to restrain the States in the
regulation of their civil institutions adopted for
internal government, and that the instrument
they have given us is not to be so construed
(p. 629). And Mr. Justice Washington observed,
in the same case (p. 668). in respect to public
corporations, which exist only for public pur-
poses, such as towns, cities, &c., the Legisla-
ture may, under proper limitations, change,
modify, enlarge, or restrain them ; securing, how-
ever, the property for the use of those for whom,
and at whose expense, it was purchased. See,
also, pages 698. 694.

It would be difficult to mention a subject of
legislation of more public concern, or in a
greater degree affecting the good government of
the county, than that involved m the present
inquiry. The power conferred upon the Board
of Commissioners by the provisions in the char-
ter, among other things, embraced the power
of taxation, this being the ultimate resori of
paying both the principal and interest of the
debt to be incurred in the subscription and is-
suing of the bonds.

The second question presented, upon which
thejudges differed, is as follows:

Wnether, by virtue of said Acts, and of the
said election m the declaration set forth, the
Ohio and Mississippi Railroad Company ac-
quired any such right to the subscription of the

800

defendants as would be protected by the Con-
stitution of the United States against the new
Constitution of Indiana, which took effect the
1st November, 1851.

The Acts of 1848 and 1849. already referred
to, made it the duty of the Board of Commis-
sioners to subscribe for the stock, if a majority
of the qualified voters at a^ election determined
in favor of the subscription.

The election took place on the first Monday
of March, 1849, when a majority of the votea
was cast for the subscription. The Constitution
of Indiana took effect 1st November, 1851.
But the subscription was not made till the 10th
September, 1852, and the bonds were issued
after this date. It is insisted that the contract
of subecription became complete when, at the
election, a majority of the votes was cast in ita
favor, and did not require the form of a sub-
scription on the books for the stock of the Rail-
roaa Company to make it obligatory upon the
parties: and which, if true, it is agreed the con-
tract would be protected within the Constitution
of the United States, as it would then have been
complete before the constitutional prohibition
of Indiana. But the court is unable to concur
in this view. It holds, that a subscripticm was
necessary to create a contract bindine upon the
county, on one side, to take the stock and pay
in the bonds; and upon the other, to transfer
the stock, and receive the bonds for the same.
Until the subscription is made, the contract ia
unexecuted, and obligatory upon neither party.

We have arrived at the conclusion that both
of the questions presented to us by the court
below must be answered in the negative with
some reluctance, as, for aught that appears in
the case, the subscription to the stock by tiie
Board of Commissioners was made and the
bonds issued in good faith to the Railroad Com-
pany, and also sold by it, and purchased by the
plaintiff in confidence of their validity ; but,
after the best consideration the court has been
able to give the case, it has been compelled to
hold, for the reasons above stated, that the
subscription was made, and the bonds issued,
in violation of the Constitution of Indiana and,
therefore, without authority, and void.

We have not been able to find that the courts
of Indiana have passed upon this clause of their
Ck)nstitution, and have, therefore, been obliged
to expound it with t^e best lights before ua.
We should have felt very much relieved, if a
construction had been given to it by the ju-
dicial authorities of the State, and have readily-
followed it.

Whereuptm it i» runo here ordered and ad-
Judge^ by this court that it be so certified to the
said etreuH court,"

Cited-^ U. 8. (2 Black), 7]»; 92 U. 8.. 636; 101 D.
8., 035 ; 102 U. 8., SM ; ti Am. Rep., 235, 238 (48 Iowa,
48): 24 Am. Rep.. 464 (42 Wis., M7); 34 iDd., 215-286 ;
30 Ind., 196 ; 78 111., 654 ; (» III., 388 ; 6 Kan., 273,

JOSEPH S. CUCULLU, Plff. in Br.,

LOUIS EMMERLING.

(See 8. C^ 22 How., 83-87.)

Obfeetion not made bdow will not be Jieard here —
ifih^ judge finds facts, evidence not renewed^

1869

BB1BW8TEB y. WaKBFIBLD.

118-129

The obJeotioD, that a contract cannot be proved by
one wftnesB, aooordlnsr to the law of l/oulalana,
flhould have been made to the court below. .

Where the caae stated, made by the Judge to
whom the cause was submitted, finds facts, and not
evidence of facts, this court cannot inquire, unless
upon some bill of exceptions properly taken, wheth-
er the evidence was sufficient to Justify the flndiniar
of the court.

Arnued Jan. tS, I860. Decided FWf. IS, I860,

IN ERROR to the Circuit Ck>urt of theUDit-
ed States for the Eastern District of Louis-
iana.

This ease arose upon a petition filed in the
court below, by the defendant in error, to re-
cover commJasions alleged to be due him as a
broker. •

The cause having been submitted to the
court, a Judgment was entered in favor of the
plaintiff for $3,700, with interest and costs;
whereupon the defendant sued out this writ of
error.

A further statement of the case appears in
the opinion of the court.

Mr, Miles Taylor, for plaintiff In error:
The agreement or contract under which Em-
merliug pretends to claim the payment by
Cucullu of $3,700, as his commissions, cannot
be proved in the 8tate of Louisiana by one wit-
ness, and the judgment of the court below
most be reversed for want of sufficient evidence
to sustain it, as diBcloeed by the statement of
facts in the case.

Cormier v. LeBlanc, 8 Mart. N. 8., 458; 8
La. Ann., 214; daegtistv. Kokernat, 5 La., 268;
LaUande v. McMaeter, 16 La., 852; OUU»pie v.
Day, 19 La., 208; Br&rU v. Slack, 10 Rob.
La., 871. .

Mr, J. P. Bei^»iiiiii» for defendant in er-
ror:

Louis Emmerling recovered a judgment in
the circuit court against J. 8. Cucullu, for
$3,700, for brokerage on the sale of a planta-
tion. The statement of fact shows .that the
commissions were earned by Emmerling, and
the writ of error seems to have been prosecuted
solely to vex and delay the defendant in error,
who prays the court to allow him damages
under the 28d rule.

Mr. Justice Grier delivered the opinion of
the court:

The declaration charses that the plaintiff be-
low was employed by Cucullu, as a broker, to
sell a plantation; 'that he effected a sale on
terms satisfactory to Cucullu; that the sale was
consummated by delivery of the property and
receipt of the purchase money; ana that for
these seryices the plaintiff was entitled to a
brokerage of two per cent., which Cucullu re-
fused to pay.

The facts of the case are stated by the court
below in the nature of a special verdict, finding
the allegations of the declaration to be sup-
ported by the evidence.

It has been objected here, that such a con
tract cannot be proved by one witness, accord-
ing to the law of Louisiana. That objection
should have been made to the court below, if
it is worth anything. But the case stated,
made by the judfge to whom the cause was sub-
mitted, finds facts, and not evidence of facts;
consequently, this court cannot inquire, unless

Bee 22 How.

upon some bill of exceptions properly taken,
whether the evidence was sufficient to justify
the finding of the court. It would be granting
a new trial, because the verdict is not supported
by the evidence, without any bill of exceptions
to the admission of testimony or to the charge
of the court.

The judgment of the <xmrt behto i$, therefore,
affirmed.

WILLIAM BREWSTER, Appt.,

'V,

WILLIAM WAKEFIELD.

(See 8. C.,28 How.. 118-1».)

Interest on notes after due — appeal, when proper
—laws of Terr%tory cannot regulate process of
this court — wTiat parties need not join in appeal
— dtfendant with separate interest.

By the oonstruotloD of a statute of the Territory
of Minnesota, after the day speolfled f or the pay-
ment of notes, the interest is to be oaloulatedat the
rates therein mentioned or aocordlnir to the rate
established by law, when there is no written con-
tract on the subject between the parties.

The contract beinff entirely silent as to interest
after due, if the notes should not be punctually
paid, the creditor is entitled to interest after that
time by operation of law, and not by any proylsion
in the contract.

In a proceedinsr in the nature of a bill in equity
to foreclose a mortiraffe, an appeal, and not a writ
of error, is the appropriate mode of bria^nsr the
ease before this court.

The laws or practice of a Territory cannot regu-
late the process by which this court exercises its
appellate power. ^

It is not necessary that parties who acquired liens
on the mortgaged premises subsequent to the
mortorage in question, should Join in the appeal.

A defendant In equity, whose interest Is separate
from that of the other defendants, may appeal
without them.

Argued Dee, 8, 1869, Decided Feb. tO, 1860.

APPEAL from the Supreme Court of theTer-
ritoiy of Minnesota.
The history of the case and a statement of the
facts appear m the opinion of the court.

Messrs. J. B. Brisbln, H. L. Stevens
and H. W. Merrill, for appellant:

1. It is submitted that the court below erred
in allowing the plaintiff interest, at the rate
specified in the notes, after their maturity.

Our Statutes (Vide Rey. Stat, of Minn., p.
165. ch. 85) fix the legal rate of interest at seyen
per cent, per annum, in all cases where no
other rate is agreed upon by the parties in writ-
ing.

The appellant a^^'eed in writing to pay a cer-
tain sum at acertam time, with interest thereon
at a certain rate, or a certain other sum at in-
terest at the same time. His contract to pay
interest, did not extend beyond the time at
which he agreed to pay it. The plaintiff, there-
fore, although entitled to interest upon his de-
mand until the same is satisfied, is not so enti-
tled by yirtue of the defendant's contract to
pay it, but by yirtue of the law which allows
interest upon all liquidated demands, from the
time they become due until they are paid.

Bander y. Bander, 7 Barb., 660, and cases
there cited.

Note.— IntefMt, when recoverdbie as da..
on mtmey. See note to Sneed v. Wistar, 21
Wheat.), 000.

.8.(8

801

11:J-129

SUPBBMB Ck>UBT OF THB UHTTBD StaTBB.

Dbc. Tbbm,

2. Authorities directly in potDt upon the
question raised in this case, are not numerous.

In Maeomber y. Dunham, 8 Wend.. 550, it
was held that a loan company, which was au-
thorized by its charter to charge interest for a
full month where a loan was for a period over
fifteen days and less than one month, was not
entitled, where a loan made for twenty days re-
mained unpaid, to demand interest at the same
rate for any subsequent time.

In U, 8. Bank v. Chapin, 9 Wend.. 471, it is
held that a bank, which by law is limited to
six per cent, interest upon all discounts, is en-
titled to recover at the rate of seven per cent,
from the time the debt becomes due.

The case of Ludwick v. Huntsinger, 5 Watts
& 8., 61. 60. it seems to us is directly in point.
In that case it was held, that "a note payable at
a future, day with three per cent, interest from
the date, carries that Interest till the day of pay-
ment, and after that, carries lawful interest."

This case is cited in a note to Chit. Bills (11
American, from 9th London ed.), 682, nuirginal
paging.

There are several cases in the reports of the
State of Alabama.

Clay V. Drake, Minor, 164; Heuryy. Tkomp-
9on. Minor, 209; see. also, Kitehen v. Br. Bank
o/i/b&iZ0. 14Ala.. 288.

."The policy of all usury laws of modern
times is to protect necessity against avarice,
and to fix such a rate of interest as will enable
industry to employ with advantage a borrowed
capital, and thereby to promote labor and na-
tional wealth." Per Ch. J. Best, in the House
of Lords(8Bing., 198).

Me89r%. Joseph H. Bradley and H* £•

, for appellee:

The appeal from the decree of the Supreme
Court taken by William Brewster alone.

It is manifest that the other defendants, if
they claimed under Brewster, were equally in-
terested with him in receiving the demand of
Wakefield, and the judgment or decree is
against all, foreclosing them from any equity of
redemption.

Two preliminary questions arise on the face
of this record:

First. Can the case be brought to this court
on appeal?

Second. Can Brewster alone take the ap-
peal, and without making the other defendants
parties?

As to the first: this is a final Judgmient in a
civil action other than a case in equity or of
admiralty and maritime jurisdiction and as such.
Is, by statute, the subject of a writ of error.

Act 24th Sept., 1789. sec. 22; 1 Stat.. 88; 8d
March, 1808, sec. 2; 2 Stat., 244.

Courts of equity are distinct in their forms
and modes of proceeding, as well as their ju-
risdiction, from courts of common law, and
they are peculiarly placed under the direct
control of this court; with this limitation they
are understood to be governed by the principal
usages and rules of the English Court of Chan-
cery at the time of the Revolution.

See 1 Stat.. 276; 4 Stat.. 278; 5 Stat.. 499;
ValUtT v. Hinde, 7 Pet. , 274.

Their Jurisdiction, rules of decision and rem-
edies, are the same in all the States.

BayU V. ZachoHe, 6 Pet., 658; Nevesv, 8coU,
18 How., 268.
808

From any other court except a coart of
equity or admiralty jurisdiction, a case can be
brought to this court by writ of error only.

The San Pedro, 2 Wheat.. 182: MeOoUum ▼.
Eager, 2 How. , 61 ; ParUh v. EUU, 16 Pet.. 451.

As to the second question: it is a caae in
which there are several defendants claiming in
the same right immediately or derivatively,
against whom the same joint decree was passed,
finally settling their rights, and the appeal is.
prayed by one only.

An appeal will not lie in such a case by one.

Omng$v, Kineannon, 7 Pet., 899; Todd v.
Daniels, 16 Pet., 521.

It is submitted that the case oughuto be dis-
missed.

If the case is properly before this court, the-
points following will be relied on by the de-
fendant in error upon its merits:

First. The rate of interest having been agreed
^ on by the parties and reduced to writing, the
contract is authorized by the statute.

Rev. Stat. Minn., p. 155. ch. 85.

Second. The contract bdng in writing, it is
the province of the court to interpret and carry
it into effect, according to the intentions of ttie
parties.

See cases and authorities in defendant's brief
in the record, to wit: Story. Cont., p. 556, sec.
688, 684; 7 Barb. S. C, 560; Chit. Cont., 74,
7 Am. Ed.

Third. If the terms are ambiguous or the
intention is doubtful, they are to be taken most
strongly against the promisor.

The maxim ** verba ehartarumforiiiu<teeip
iuntur contra proferentem " (Co. Mtt. 86, a) is
as applicable to contracts not under seal, as to
those of greater solemnity.

Mayer v. Isaac, 6 Mees. & W.. 612; Bar-
greave v. 8mee, 6 Bing., 248; SUvens v. PeU^
2 Cromp. & M., 710; Edis v. Bury, 6 B. & C.
483.

Fourth. This is an express contract for the
use of money. The terms import a continu-
ance of the same rate for its detention.

1. It uses the word "interest;" "interest
from date."

These words have a definite signification.
They show that it was made with reference to
an understood compensation, the right to
which would continue until payment of the
principal sum with all the accumulated inter-
est, or until judgment recovered. Nor could
the promisor have paid the debts of either of
them, before the appointed time, so as to atop
the interest; for the time is a part of the con-
tract and of the consideration on which the
money was lent, and was made so for the bene-
fit of .the creditor.

EUis V. Oraig, 7 Johns. Ch., 7.

2. The interest Lb to run from the date of the
note in one case, at the rate of twenty per
cent, per annum; in the other, at the rate of
two per cent, per month. Language could
with difficulty be found more clearly to import
that the parties contemplated the possibility of
the non-payment of the debts at their matu-
rity, and intended, at that event, to fix the rate
of interest to be allowed and paid for its deten-
tion.

Fifth. It is to be construed as every other
contract, to make compensation for the use of
another man's property. The hire of labor,

68 U. £L

1858.

Bbbwstbr y. Wakefield.

ii8-id»

the rent of a house or machinery, stand on the
same pMrindple. If there is no contract, the
owner is entitled to recover whatever the jury
may find he should reasonably receive. But if
there is a contract for a definite period at a cer-
tain rate, the relation of the parties continues
unchanged — ^the^ate of compensation likewise
continues. So here, the hire of this money and
the rate of compensation being fixed by agree-
ment, the rate must continue so long as the
money is detained in the use or employment
of the borrower. The statute does not come
to the relief of the party who has made his
own law.

It is therefore submitted, that there is no er-
ror in the decree of the court below.

Mr. Chief Juitiee Taney delivered the opin-
ion of the court:

This case comes before the court upon ap-
peal from the judgment of the Supreme Court
of the Territory of Minnesota, before its ad-
mission into the Union as a State.

It appears that a suit was instituted in the
District Court, in the County of Ramsey, by
Wakefield, the appellee, against the appellant
and others, in order to foreclose a mortgage
made by the said Brewster and his wife, of cer-
tain lands, to secure the payment of three
promiflsory notes mentionea m the proceed-
ings. The notes are not set out in full in the
transcript, but are stated by the complainant
in his petition, or bill of complaint, to have
been all given bv Brewster on the 11th of July,
1854. whereby, in one of them, he promised to
pay, twelve months after the date thereof, to
the order of Wakefield, the appellee, the sum
of $5,583.25, with interest thereoa at the rate
of twenty per cent, per annum /from the date
thereof, for value received; and in another,
promised to pay to the order of the said Wake-
field the further sum of $2,000, twelve months
after the date thereof, with interest thereon at
the rate of two per cent, per month from the
date; and by a third one, promised to pay to
the order of the said Wakefield, six months
after date, the further sum of $1,000, with in-
terest at the rate of two per cent, per month.
This last mentioned note is admitted to have
been paid, and these proceedings were insti-
tuted to recx>yer the principal and interest due
CD the first two.

No defense appears to have been made by
the appellant, and the notes were admitted to
be due. But when the court was about to pass
its decrep for the sale of the mortgaged prem-
ises, and ascertain and determine the sum due,
the appellant, by his counsel, appeared and
objected to the ' allowance of more than the
legal rate of interest (seven per cent.) after the
nctes became due and payable. Wakefield, on
the contrary, claimed that interest should be
allowed at the rate mentioned in the notes, up
to the time of judgment or decree for the sale.
And of tills opinion was the court, and by its
decree, dated June. 20ih, 1865, adjudged that
the sum of $10,670.77 was then due and owing
for principal and interest on the said two notes,
and ordered the mortgaged premises, or so
much thereof as might be necessary, to be sold
to raise that sum.

This decree or judgment was carried by writ
of error, according to the practice in the Terri-

Sce23 How.

tory before the Supreme Territorial Court; and
was there, on the 29th of January, 1857, af-
firmed, with ten per cent, damages, and also
le^ interest on the sum awarded by the dis-
trict court, amounting altogether to the sum
of $12,638.00. For the payment of that
amount, with costs, the mortgaged premises
were ordered to be sold.

From this last mentioned decision an appeal
was taken to this court.

There is no question as to the validity of the
notea or mortgage; and it is admitted that no
part of the debt has been paid. The question
in controversy between the parties, is whether,
after the day specified for the payment of the
notes, the interest is to be calculated at the
rates therein mentioned, or according to the
rate established by law, when there is no writ-
ten contract on the subject between the parties.
The question depends upon the construction
of a statute of the Territory, which is in the
following words:

*' Sec. 1. Any rate of interest agreed upon
by the parties in contract, specifying the same
in writing, shall be legal and valid.

Sec. 2. When no rate of interest is agreed
upon or specified in a note or other contract,
seven per oent. per annum shall be the legal
rate."

Now, the notes which formed the written
contracts between the parties, as we have al-
ready said, are not set out in full in the record.
We must take them, therefore, as they are de-
scribed by the complainant, as his description
is not disputed by the appellant; and accord-
ing to that statement, the written stipulation
as to interest, is interest from the date to the
day specified for the payment. There is no
stipulation in relation to interest, after the notes
become due, in case the debtor should fail to
pay them ; and if the right to interest depended
alto^ther on contract, and was not given by
law in a case of this kind, the appellee would
be entitled to no interest whatever after the
day of payment.

The contract being entirely silent as to inter-
est, if the notes should not l>e punctually paid,
the creditor is entitled to interest after that
time hy operation of law, and not by any pro-
vision in the contract. And. in this view of
the subject, we think the territorial courts
committed an error in allowing, after the notes
fell due, a higher rate of interest than that es-
tablished by law, where there was no contract
to regulate it. The cases of Mcboomber v. Dun
ham, 8 Wend., 550; UnUed 8taU$ Bank v.
Ghapin, 9 Wend., 471; and Ludtoiek v. Hunt-
unger, 5 Watts & 8., 51, 60, were decided
upon this principle, and, in the opinion of this
court, correctly decided.

Nor is there anything in the character of
this contract that should induce the court, by
supposed intendment of the parties or doubt-
ful inferences, to extend the stipulation for in-
terest beyond the time specified in the written
contract. The law of Minnesota has fixed
seven per cent, per annum as a reasonable and
fair compensation for the use of money ; and
where a party desires to exact, from the ne-
cessities of a borrower, more than three times
as much as the Legislature deems reasonable
and Just, he must take care that the contract
is so written, in plain and unambiguous terms;

174-185

SUPBBMB GOUBT OF THS UhITBD StATBS.

Dbc. TXRM ,

for, with such a claim, he muat stand upon his
bond. *

A question has been raised by the appellee,
as to the jurisdiction of this court. The laws
of the Territory have abolished the distinction
between cases at law and cases in equity, and
both are blended in the same prooeedmg, with-
out any regard to the forms and rules of pro-
ceeding, eSher at law or in equitjr, and a case
cannot be remoyed from an infenor to an ap-
pellate territorial court, except by writ of er-
ror. And it is urged that this case, under the
laws of Minnesota, ought to be regisirded as a
case at law, and removable to this court by
writ of error only, and not by appeal.

But the case presented by the record is not a
case at law, according to the meaning of those
words, in courts which recognize the distinc-
tion between law and equity. On the con-
trary, it is a proceeding in the nature of a bill
in equity to foreclose a mortgage, in which the
facts as well as the law are to be decided by
the court; and an appeal, and not a writ of
error, was the appropriate mode of bringing
the case before this court. The laws or prac-
tice of the Territory cannot regulate the proc-
ess by which this court ezerci^ its appellate
power. Nor, indeed, can there be any such
thing as a suit at law, as contradistinguished
from a suit in eouity, in the courts of the
Territory, where legal rights and equitable
rights must be blended together and prosecuted
in the same suit, without any regard to the
rules and practice of courts of common law or
courts of equity.

Nor was it necessary that the parties who ac-
quired liens on the mortgaged premises subse-
quent to the mortgage in question should join
in the appeal. Thev were not necessary par-
ties in a proceeding in equity to foreclose the
mortgage, and none of them have appeared to
the suit to contest the claim of Wakefield.
And if it had been otherwise, yet the question
in controversy here is the amount of the debt
due from the appellant; and in the case of Fm'-
gay v. Conrad, 6 How., 201, and 26 How.,
658, this court decided that a defendant in
equity, whose interest is separate from that of
the other defendants, may appeal without them.

We haw no doubt of the juriedieHon of the
court upon this appeal; and the judgment and
decree of the supreme court of the territory
must be reversed, for the error dhow mentioned.

Bev'flr— 1 Minn., 852.

Denled-a7 Am. Rep., 812-3U (U9 Mass., 82); 48 Am.
Rep.. 06 (84 Ind^ 875).

<Sted-TB U. 8. 12 (WaU.), 442 : 87 U. 8. (20 Wall.).
esa; 89 D. 8. (22 Wall.). 176; 88 tl. 8., 809; 96 U. 8.,
61; 100 U. 8., 74; 11 Bank. Rear., 68, 607; 26 Am.
Rep., 608 (81 Ark.. 626); 84 Am. Rep., 262 (68 Ind.. 206);
24 Am. Rep.. 68, 54 (07 Me., 540); 24 Ain. Rep.. 871 (9
Helsk., 762).

Ex parU In the Matter op THE UNITED
STATES, ON THE Relation op RICHARD
R, CRAWFORD,

HENRY ADDISON.
(8. C, 22 How., 174-186.)

Nora.— Mandamus, when w(U Umie. See note to
M'CluDjr V. SlUlman. 16 U. 8. (2 Wheat.), 869.

804

Supreme Court has power toissue writs of mBn-
asmuA^-fknoer of dreuil courts to issue — wHl
not issue, to condrol discretion ofjudge^ but wUl,
to require himtoaet — wheh writ of error oper-
ates as a supersedeas — when will He upon judg-
ment of circuit court awarding mandamus —
that iorit of error will be $n0feetual, is not
cause for mandamus.

Crawford was elected Mayor of Oeorgetown; and
Addison, the oppoefner candidate, defendant, took
possession of the office. The circuit court rendered
judflrment of ouster aflralnst said defendant ; he sued
out writ of error which operated as a tupersedeae
to the said judgment. Crawford, alle^lnff that this
court has no Jurisdiction of the writ oferror, ap-
plied for a mandamus oommandlnff the drcult court
to Issue process for the execution of the Judgment
aforesaid. Held, that under the 18th sec. of the Jo-
dloary Act of 1789, the Supreme Court has " power
to Issue writs of mandamus^ to any courts appointed
or persons holding office under the TTnited States."

The power of the circuit courts to issue the writ
of mandamusn is confined exdurively to those cases
in which it may be necessary to the exercise of
their Jurisdiction.

This court win not, by mandamus, direct a Judgre
as to the exercise of his discretion ; but it will re-
quire him to act.

The writ of error, to operate as a supenmlras,
must be issued within ten days after the rendition
of the Judgment, and un security belnar irlvon for
a sum exceeding^ the amount of the Judgment.

A writ of error will lie from this court upon
Judgments of the circuit courts awarding a per-
emptory mandamus, if the matter In controversy
is of sufficient value.

The salary of the Mayor of G^eorgetown is $1,000

f>er annum: and If this be a matter of controversy,
t settles the Jurlpdlction.

That the remedy by writ oferror is inappropriate
and ineffectual, as the office of the relator wUl ex-
pire about the time the writ of error is made return-
able, may be a defect In the law ; but we must
administer the law as we find it.

The writ of error is the legal mode of revising the
Judirment of the circuit court In this case; and se-
curity having been given on the Judgment, as the
law requires, it is superseded.

Argued Jan. 6, I860. Decided Feb, tO, 1860.

ON THE petition of Richard R. Crawford
for a peremptory mandamus, or for a rale
to show cause.

Upon the filing of the petition, and the tran-
script of the record therewith exhibited, a mo-
tion is submitted by Mr. Brent and Mr. Car-
lisle of counsel for the petitioner, that a per-
emptory mandamus be issued, directed to the
Judges of the Circuit Court of the District of
Columbia, commanding them to execute, by
due process of law, the judgment of ouster,
and for costs, which appears by the said record
to have been rendered oy the said court, in the
matter of the United States, on the relation of
the said Bichard B. Crawford v. Henry Addi-
son.

Or, in the alternative that a rule be granted
to show cause, at a short day to be named there-
in, why a mandamus shall not issue as prayed.

The case is very fully stated by the court, the
petition being there set out.

Messrs. R. J. Brent and J. M. Carliale«
for petitioner.

Messrs. J. H. Bradley and H. W. D»wis,
for respondent.

Mr. Justice HcLeaii delivered the opinion
of the court:

This a writ of error to the Circuit Court of
the United States for the District of Columbia.

Richard R. Crawford, qf the City of Ckorge-
town, in the District of Columbia, states that

6t U.S.

1859

U. 8. V. Addison.

174-186

on the fourth Monday of Febniary, 1867, in
pursuance of an Act of Congress to amend the
charter of Georgetown, approved the 81st
May, 1880. and an Act to amend the same
charter, approved the 11th August, 1866, by
ballot, to elect some fit and proper person,
having the qualifications required by law, to be
Mayor of the Corporation of Georgetown, to
•continue in office two years, and until a suc-
cessor shall be duly elected, said Crawford,
foeins duty qualified, received the greatest
numMr of legal votes, and was elected Mayor
of the said Corporation, and took the oath as
Mayor, and continued to discharge the duties
for two years.

On the fourth Monday of Februaisr, 1869,
another election was held for mayor, at which
be received the greatest number of legal votes,
and was by the judges declared to be duly
elected; on which he presented himself in the
presence of the two Boards of the common
•council of the said Corporation, ami claimed
that the oath should be administered; but the
said two b(Mirds, alleging there was a mistake
in the returns, and that there was in fact a ma-
jority of one vote in favor of Henry Addison,
'who was the opposing candidate, and to whom
the oath of office was administeerd, and who
took possession of the office, and continues to
exercise the duties of the same.

And your petitioner represents, that at the
ensuing term of the Circuit Court of the District
of Columbia, being the court then and still
having lurisdiction in the premises, an infor-
mation, in nature of qito warranto, upon the re-
lation of your petitioner, was filed m the said
court by Robert Ould, Es()., the Attorney of
the United States for the District of Columbia,
on which due process was issued against the
aaid Henry Addison, requiring him to answer
before the said court bv what warrant he
claimed to exercise the said office of Mayor of
the Corporation of GkK)rgetown.

And tne said Addison naving pleaded to the
said information, and certain replications hav-
ing been made to said plea by the said Attorney
of the United States, certain issues were joined
thereon at the October Term, 1869, of the said
court, and amongst others the issue to try
whether the said Henry Addison had, as al*
leged by him in his plea, received the greatest
number of legal votes for Mayor at the said
last mentioned election; and upon the issue it
was found by the jury, duly impaneled and
Bwom to try the same, tliat the saia Henry Ad-
dison did not receive the greatest number of
legal votes ior ma^or at the said election ; and
thereupon the said court rendered judgment
of ouster against the said defendant, and for
the costs 01 your petitioner, as relator in the

in the said proceeding, to wit: on the day

of December instant.

Whereupon, due process for the execution of
the said judgment, to remove the defendant
and for the recovery of the costs aforesaid,
was duly praved of the said court; but the
said Henry Addison, pretending that the pro-
ceedings upon the said imformation in matter
of law may be reviewed bv this honorable
court upon writ of error, sued out such writ of
error, filed a bond, and caused a citation to be
issued and served upon your petitioner, to ap-
pear and answer to the said writ of error on

Sec 22 How. U. S., Book 16.

the return thereof, to wit: at the December
Term, 1860. And thereupon the said circuit
court, for the express and sole reason that such
writ of error and bond operated as a super-
sedeas (which is expressed in their order in that
behalf), refused to execute the said judgment,
or to issue any process to remove the said de-
fendant or for the recovery of the costs afore-
said.

Your petitioner is advised, and humbly sub-
mits, that this honorable court hath no juris-
diction of the matter of the said writ of error,
and that the same must be dismissed on the re-
turn thereof. But, as hereinbefore stated, the
said writ is not returnable until December
Term, 1860, and the term of office for which
your petitioner was elected as aforesaid will
then be about to expire.

Your petitioner is advised that his only ade-

?[uate and proper remedy is by a mandamus
torn this honorable court, directed to the
Judges of the said Circuit Court of the Dis-
trict of Columbia, commanding them to issue
process for the execution of the judgment
aforesaid. ^ And for that the transcript of rec-
ord herewith filed plainly expresses on its face
the sole cause for the reiusal of such process,
so as distinctly to present the whole matter of
law for the consideration of the court, he prays
that a peremptory maridamus may issue, or, in
the alternative, uat such interlocutory order
may be passed to that end, as this court may
direct.

Under the 18th secion of the Judiciary Act of
1789 (1 Stat, at L.. 72), the Supreme Court has
*' power to issue writs of mandamus, ic case
warranted by the principles and usages of law,
to any courts appointed of persons holding of-
fice under the United States." The power of
the circuit courts to issue the writ ot manda-
mus'Sa confined exclusively to those cases in
which it ma^ be necessary to the exercise of
their jurisdiction. Kendall v. United States,
37 U. S. (12 Pet.), 624.

On a mandamus, a superior court will never
direct in what manner the discretion of an
inferior tribunal shall be exercised; but they
will, in a proper case, require the inferior
court to decide. Life Insurance Co. v. Wilson,
8 Pet., 294. It has repeatedly been declared
by this court that it will not, by ^nandamus,
direct a judge as to the exercise of his discre-
tion; but it will require him to act. 88 U. 8.
(18 Pet.), 279.

A mandamus is a remedy where there is no
other appropriate relief, and it is only resorted
to on extraordinary occasions.

The writ of error is a common law writ, and
is almost as old as the common law itself.
This writ, to operate as a supersedeas, must be
issued within ten days after the rendition of
the judgment, and on security being given for
a sum exceeding the amount of the judgment.
Where no supersedeas is required, security for
the costs of the Supreme Court must be en-
tered. So that, in these respects, the writ of
error is said to be a writ of right, though regu-
lated by statute.

The condition on the supersedea^s bond is:
"that the said Henry Addison shall prosecute
the said writ of error to effect, and answer all
damages and costs if he shall fail to make his
plea good ; then the above obligation to be void,

20 ZO^

193-214

SUPRBMB Court of thb Unitbd SrATsa.

DsG. Tkrm^

otherwise to be and remain in full force and
virtue."

In the Columbian Insurance Company v.
Wheel/right, 7 Wheat.. 584. it was held that a
writ of error will lie from this court upon the
judgments of the circuit courts awarding a
peremptory mandamus, if the matter in con-
troversy is of sufficient value. But in that
case, it did appear that the office of director
of the insurance company, which was the mat-
ter in controversy, was of less value than $1,000
and that its value was to be ascertained by the
salary paid; the court held it had no jurisdic-
tion.

The weight of this authority is not lessened
by the fact on which the question of jurisdic-
tion turned. The salary of the Mayor of
Georgetown was established by law at $1,000
per annum; and if this be the matter Qf con-
troversy, it settles the jurisdiction.

But It is contended that a year's salary can-
not be regarded as the amount in controversy,
as the salary is paid monthly or quarterly, as
may be most convenient to the mayor. The
law regulates the pay of all salaried officers by
the year, and the estimates are so appropriated
in the reported bills. Any departure from this
annual allowance would derange, more or less,
the fiscal of a government or corporation.

But it is said that the remedy by writ of er-
ror is inappropriate and ineffectual, as the of-
fice of the relator will expire about the time the
writ of error is made returnable. This may be
a defect in the law, which the legislative pow-
er only can remove. A writ of error return-
able instanter would give more speedy relief,
and might be more satisfactory, but we must
administer the law as we find it.

The bond and security given on the writ of

error cannot be regarded as an idle ceremony.

It was designed as an indemnity to the deTend-

ant in error should the plaintiff fail to pros-

* ecute with effect his writ of error.

We can entertain no doubt that the writ of
error is the legal mode of revising the judg-
ment of the circuit court in this case; and that
security having been given on the judgment, as
the law requires, it is superseded.

Dissenting, Mr. Justice Wayne and Mr.
Justice Grier.

Cited~78U, 8.(8 Wall.). 297; 77 U. 8. (10 Wall.),
291 ; 4 Am. Rep., 383 &0 Mich., 176); 61 Ind., 409.

ROBINSON LYTLE and LYDIA L,. hib
Wife, NATHAN H. CLOYES bt al.,
Plffs. in Br.,

THE STATE OF ARKANSAS. CHARLES

B. BERTRAND et al.

(See 8. C, 22 How.. 193-214.)

State judgment as to title, when examinable —
entry procured by frwud may be reviewed —
Decmon as to SUUute of Limitations not re-
meuHtble — where evidence contradictory, verdict
conclusive.

Under the 25th seotion of the Judiciary Act, it is
not material whether the invalidity of a title was

806

decreed in the 8tate court upon a question of fact
or of law.

The fact that the title was rejected in that courts
authorizes this court to re-examine the decree.

The adjudication of the register and receiver^
which authorized the entry of land, ia subject to
revision in the courts, on sbowinar that the entry
was obtained by fraud and false testimony as to
settlement and cultivation.

The Act of Limitations of the State is a defense
havinff no connection with the title, and this court
cannot revise the decree below in this respect,
under the 25th section of the Judiciary Act.

Where the evidence is contradictory on the ques-
tion of fraud and imposition on the officers, this
court will not overrule the finding* of fact by the
courts below.

Argued Jan. 18, 1860. Decided Feb. BO. I860.

IN ERROR to the Supreme Court of the State
of Arkansas.

The history of the case, and a sufficient
statement of the facts, appear in the opinion
of the court.

See, also. Lytic v. Arkansas, 9 How., 814;
Lytic V. Arkansas, 17 Ark.. 610. from which
the present writ of error is prosecuted.

Of the elaborate arguments presented in thia
court, but little can be here given, except on
the question of jurisdiction.

Messrs. J. H. Bradley, A. Fowler and
J^ Stillwell* for plaintiff in error:

It may be insisted that this court has no
jurisdiction of the case.

The right set up by the plaintiffs in error
arises under an Act of Congress, and the de-
cision of the Supreme Court of Arkansas was
against that right, consequently this court has
jurisdiction of the case, without regard to the
particular ^und upon which the decree of the
state court is based.

Cunningham v. Ashley, 14 How., 889: City
of Mobile v. Emanuel, 1 How, 95; 14 How., 98.

The right grows out of an Act of Congress,
and is sanctioned against all laws and judicial
decisions of the States.

Owings v. Norwood, 5 Cranch, 844; Fisher v.
CockereU, 5 Pet. , 257 ; Martin v. Hunter's Lessee,
1 Wheat.; 804. 323, 352.

The evidence for the defense was admitted
for the purpose of impeaching the right claimed
under the Act of Congress, and granted to them
by the land officers acting under it ; consequent-
ly the decision of the state court upon the
effect of such evidence may be fully considered
here, and the decree reversed or afhrmed.

Mackay v. Dillon, 4 How.. 447.

The power to revise and reverse a decision of
a state court, depriving a party of his right to
transfer his case from the state court to the
circuit court of the United States lor trial, baa
been exercised.

Gordon v. Longest, 16 Pet., 103.

In Neilson v. Lagow, 7 How.. 775. the plaint-
iff claimed the land under an authority exercised
bv the Secretary of the Treasury in behalf of the
United States, and the decision was aeainst the
validity of the authority thus exercis<», and on
motion to dismiss, Chief Justice Taney said:
" We think it is evidently one of the cases pre-
scribed for in the 25th section of the Act of
1789."

In this case the decision was against the
authority exercised by the Register and Re-
ceiver, subordinates of the Secretary of the
Treasury, but under the same authority.

The jurisdiction exists wherever the laws of

M U. S

8591.

Lttlb v. Arkansak.

108-2U

Congress and the acts of officers executing them
in perfecting titles to puhlic lands, have been
drawn in question and construed by the Su-
preme Court of a State, and the oecision is
against the title set up under the laws of Con-
gress and the authority exercised under them.

Qnmn v. Blane^s A?V. 19 How., 207; Me-
Doiwgh V. Millavdon, 8 How., 704.

The plaintiffs .in this case claim under the
authority exercised under a statute of the
United States, and a right set up under it, and
the decision was against them. Garland y.
Wynn, 20 How., 7, was similar to this in every
respect, and the question was passed over with-
out notice.

In order to give jurisdiction, it is sufficient if
the record shows that it is clear, from the facts
stated by just and necessary inference, that the
question was made, and that the state court
must, in order to have arrived at the judgment
pronounced by it, have decided that question
as indispensable to that judgment.

Crawdl V. RandeU, 10 Fet.. 892; Wilson y.
Ths Black Bird C. M, Co., 2 Pet., 250; MarHn
V. Hunter' M Leasee, 1 Wheat., 355; MiUer v.
Nichols, 4 Wheat., 811; Williams v. Noms, 12
Wheat., 117.

The jurisdiction must be determined by refer-
ence to the record. And in doing so, the court
will refer to the opinion of the state court,
where it is made a part of the record by the
laws of the State

Otnmn v. Blanc* s Exrs., 19 How., 207.

In this case there is no necessity in the first
instance of looking behind the decree of the
Supreme Court of Arkansas, to determine the
ground of the decision ; but if need be, we may
look back to the decision of the Chancellor,
whose decree was affirmed by the Supreme
Court of Arkansas, and shall find that he over-
ruled all the defenses set up, except the in-
validity of the preemption claim of Cloyes.

The decision being against the right, the
Supreme Court has jurisdiction to re-examine
the case and determine, not whether the de-
cision was right upon the particular ground,
but whether the right was properly denied.
The decree of the state court would not have
been what it is, if there had not been a decision
against the right set up by the plaintiffs; and
this is all sufficient.

WiUiams v. OHver, 12 How., 124; 3 Pet.,
3»2. 802.

And the decisipn of the state court need not
be confined exclusively and especially to the
construction of the Treaty, Act of Congress, <&c.,
in order to give jurisdiction.

Williams v. Oliver, 12 How.. 124.

Points may arise growing out of and con-
nected with the general question, and so
blended with it as not to be separated, and
therefore falling equally within the decision
contemplated by the 25th section. The case of
Smith V. Hu State of Maryland, 6 Cranch, 281 ;
and Martin v. Hunter's Lessee, 1 Wheat., 805,
355. afford illustrations of this principle.

Here the record shows affirmatively that the
decision was against the right set up and the
authority of the land officers, excluding the
idea that the decison was made upon the other
defense set up by the defendants, such as pur-
chasers for a valuable consideration without
noUce, statutes of limitation, lapse of time, &c.

Bee 23 How.

And it follows, as a matter of course, that if
the decisions of the state court upon that
point was wrong, the decree must be reversed.

The effect of the decision of that court re-
versing the decree of the Supreme Court of
Arkansas ; the right of the defendants to ques-
tion the validity of the preemption claim of
Cloyes, and whether, if they have the right,
they have done so by proper pleading, are the
next questions presented. There are other
questions which will be discussed, thoush it is
not supposed the court will, under the circum-
stances, feel called upon to decide them.

The idea seemingly entertained by some of
the counsel for the defense in this case, and
also by the Chancellor, that the former decree
in this case by the Supreme Court of the United
States is not the law of the case " — to govern it
absolutely, as far as that decree went— ^because
amendments and not parties were subsequently
made, is at least a novel one.

The issue is substantially the same now as
presented before; and such changes as have
been made only present the complainant's
rights much more clearly and strongly, and
render the former adjudication much more
emphatically " the law of the case," and more
conclusive now than it could possibly have
been without such change.

And the law in all cases is well settled and
without any exception, that an adjudication of
the Supreme Court of the United States is con-
clusive down to the very point decided, and
becomes unchangeably *' the law of the case,"
and nothing behind that point can ever be
opened or revived afterwards.

See Nelson v. HiMard, 18 Ark.. 256; Ex
parte Story, 12 Pet., 389; Fortenberry v. Frazier,
5 Ark.. 202; Sibbald v. The U. 8„ 12 Pet., 492;
West V. Brashear, 14 Pet., 54; Porter v. Hanley,
10 Ark., 191; Boyce v. Grundy, 9 Pet.. 290;
Walker v. Walker, 7 Ark., 556; Pulaski Co. v.
Lincoln, 18 Ark., 104; Bector v. Danley, 14 '
Ark., 807; Story v. Livingston, 18 Pet, 867.

In this case, then, what can be inquired into
under that former decision, but the question of
fraud and purchase bona fide without notice?
And by the well understood principles of
equity, we think both of these must be deter-
mined against the defense.

As a general principle of law, it is well set-
tled, that where the matter adjudicated is by
a court of peculiar and exclusive jurisdiction,
and where no appeal is allowed or revising
power given by law, such adjudication is final
and conclusive upon all the other courts and
persons, until successfully impeached upon the
ground of fraud.

Lessee of Rhoade^ v. SeUn, 4 Wash. C. C. ,
721 : Wilcox v. Jackson, 13 Pet., 511 ; Gelston v.
Hoyt, 1 Johns. Ch.. 546; Voorhees v. U. S.
Bank, 10 Pet., 478; U. S. v. Arredondo, 6 Pel.,
729; Blount v. Darrach, 4 Wash. C. C, 650;
Ifhley V. Harrison, 15 How., 448; Borden v.
1 he Slate, 11 Ark., 547.

And embraced within this general principle
are the adjudications of the register and re-
ceiver of the land offices, as to the facts of pos-
session, cultivation and other acts essential to
the validity of the preemptor's right — questions
directly submitted to them and adjudicated
upon and within their exclusive jurisdiction.

See Wilcox v. Jackson, 18 Pet., 511; Nick's

198-314

SUPRBICB GOUBT OF THB UnITBD StATBB.

Dbc. Tkkm,

Heirs y. Rector, A Ark., 384; 2 Laws, Instruc-
tions and Opinions (ed. of 1838), p. 85, No. 57;
Gaines y. Hale, 16 Ark., 25: JfcG^A^* v. WrigJU,
16 111., 557; MiieheU v. CM, 13 Ala., 139;
Lytle V. The State, 9 How. , H38 ; Le^eU v. Lewie,
9 Mo., 186; Perry v. O'HarOon, 11 Mo., 591;
12 Ark.. 21, eieeq.

And is binding on a court of chancery, as
well as other courts.

16 III, 557.

Even a surveyor appointed by Act of Con-
gress to make a partition of lands, becomes in
that matter virtually a judge; and his act is
final and conclusive in the absence of fraud.

^QQHayddy. Dufreene, 17 How.. 80.

Such judgments or t^y other final judg-
ments, may be impeached in equity for fraud;
but never on account of irregularity.

See Shottenkirkv, Wheder, 3 Johns. Ch., 275.

And however grossly ignorant such a court
or officer may be of the duties confided or re-
gardless of the right of parties, yet this cannot
affect the jurisdiction or impair the judgment,
in the absence of fraud.

See Woodruff Y, Cook, 2 Edw. Ch., 261.

We insist, as to the attempted imputation of
fraud made by wholesale in many of the an-
swers— that none of them occupy a position to
give them the right in law or equity, to avail
themselves of the charge even were it as true
as it is untrue.

None of them had any interest in the land or
any claim to it, of any sort at the time that
the grant of the preemption was obtained ; and
even were it done by fraud, what right had any
of them to complain? Was any one of them
injured bv it? It was a question between
Cloyes and the United States, alone.

Fraud must be accompanied bv injury in order
to entitle a party to redress. The partv seeking
relief must oe damaged by the alleged act.

SeeiJa228 v. Thompson, 1 Sm. & M., 489;
Irons V, Beylmm, 11 Ark., 389; Cunningham
V. Ashley, 12 Ark., 803, 820; 1 Story. Bq.
Jur, sec. 20a; Co. Litt., 357, h.\ Young v.
Btmpass, Freem. Ch. Miss.. 250: Jwsan v.
Toulmin, 9 Ala. N. S., 684; Canard v. NieoU,
4 Pet., 296, 310; U. 8. v. Arredondo, d Pet.,
716; Meux v. Anthony, 11 Ark., 418; Clarke v.
White, 12 Pet., 196; Edmunds v. HUdreth, 6
111.. 215:2 Tenn., 153.

Messrs, S. H. Hempstead» A. Pike and
Geo. C. Watkins, for defendants in error:

In MUler v. Kerr, 7 Wheat., 1, the court held
that where an equitable title was asserted,
against a patent, me equitable title was first
open to examination, and the complainant
failed because his supposed prior equity was
founded upon a mistake. So in this case when
before the court in 9 How. , it was held that
the alleged equity acting on the offensive,
mi^ht be impeached on the ground of fraud or
uniaimess. In Garland v. Wynn, 20 How.,
1, where the equitable claimant assailed a title
which had ripened into a patent, it was an-
nounced as the settled doctrine of the courc,
and which a fortiori would apply as against
the alleged equity of a complainant asserting
an imperfect title, *' that where several parties
set up conflicting claims to property with
which a specisil tribunal may deal, as between
one party and the government, regardless of the
rights of others, the latter may come into the

808

ordinary courts of justice and litigate the cod-
flicting claims." That was a writ of error
from a state court, and those are the ordinary
couilB of justice referred to.

The distinct question was presented, whether
the court below had authority or jurisdiction
to set aside or correct the decision of a register
and receiver, on the ground that the witnesses
were induced to swear ignorantly, and what
was untrue as to the locality of the cultivatioo.
and upon which depended the existence and
validity of the pre-emption claimed, and which
the land officers, acting upon that false testi-
mony, had adjudicated ana allowed.

The Supreme Court of Arkansas, in their de-
cision in LyUe v. Arkansas, 17 Ark., 610 (from
which the present writ of error is prosecuted),
yielded implicit obedience to the opinion of this
court in 9 How. , as the law of the case.

The rights of a bona fide preemptor are fully
recogniz^, but in the new aspect of the case,
that court was called upon to decide whether
the preemption claim was bona fide. The tes-
timony was again reviewed and carefully con-
sidered.

The judgment in the Supreme Court was.
'* that the preemption claim set up in the bill
was and S& fraudulent in fact and in law, and
there is no error in the proceedings and decree
of said chancer^r court in this cause.

The proposition contended for is, that on a
writ of error from a state court, where no ques-
tion of law is presented, it is not the province
or duty of this court to review the decision of
an issue of fact merely, made by the court below
with its superior facilities for determining the
fact, according to the weight or credibility of
testimony.

By the Judiciary Act of 1789, appeals were
only allowed from the district to the circuit
courts. There was no mode of bringing up
any case to this court, except by writ of error.

Blaine v. 8Jvip Can-ier, 4 Dall.. 22.

The terms "appeal" and "writ of error."
though used by the Act, were not confounded.
An appeal is a civil law proceeding which re-
moves the cause entire! v, and is a rehearing on
the facts as ^ell as the law.

WiMart V. Dauehy, 3 Dall., 821.

The great object of the Judicary Act of 17t^.
was to confine the appellate jurisdiction of this
court to the examination ana decision of ouef^
tions of law, on errors assimed and made U)
appear upon the record. 4y section 19, the
circuit courts in e(|uity were required to cause
the facts upon which they founded their decree
to appear upon the record, either by a state
ment of such facts by the parties, or by tbe
court where they could not agree, being anal-
ogous to a special verdict or case stated in trials
at law. This regulation appears to have been
regarded with some jealousy, according to the
report of the case last cited, Wiscart v. Dauehp,
as conferring a power on the circuit courts in
chancery, which might be abused by the de-
termination of facts contrary to or not war-
ranted by the evidence. That feelinfl: probably
led to the passage of the Act of Marcn 8, 1803,
providing for an appeal in chancery cau»«
from the circuit courts to this court, and that
on such appeal the transcript should contain
all the pleadings, depositions and documentar}-
evidence in the cause.

U.S.

1869.

Lytle v. Akkansas.

10&-214

The policy of the Act of 1808, as apparent
from its history, was to enable this court to re-
view and correct any gross error of the circuit
courts, in determining questions of fact against
or without evidence, llie principle pervading
the exercise of appellate jurisdiction by this
court, is only partially innovated upon. We
apprehend that no appeal in chancery was ever
decided by this court, without deference to the
opinion of the circuit court which tried the
cause upon the facts which the evidence con-
duced to establish; while on the other hand,
their errors or misconstructions of law are freely
examined.

In all the cases, from Parsons v. Bedford^ 8
Pet., 444; to Mirwr v. TCUotatm, 2 How., 8U2.
and F^n v. Holme, 21 How.. 481, this court
has perseveringlv resisted all efforts to engraft
upon the federal Judiciary the civil law prac-
tice, or the mongrel systems of Texas and other
new States.

But in any view of it, the Act of 1808 does not
apply to writs of error from the state court,
under the 26th section of the Judiciary Act.
And according to the construction repeatedly
given by this court, touching the distinction
between an appeal and a writ of error, where
those terms are used in Acts of Congress, noth-
ing is examinable on a writ of error by this
court, as one of appellate jurisdiction, except
questions of error in law. When this cause
was tried in 9 Howard, the facts confessed by
the demurrer lay in a nut shell. The decision
is interesting and important as an afl&rmance
of the doctrine that an inchoate right of pre-
emption vested under law, is not defeated by a
subsequent Act of Congress eranting the land.
But on this record, suppose the court were to
enter upon a reexamination of facts, and after
a patient and laborious collation of the testi-
mony, and without, indeed, those aids attendant
upon the court which tried the cause, and
breathing the atmosphere of the witnesses,
could Instinctively appreciate their worthy
credibility, should arrive at the conclusion that
the claim of Cloves was unfounded in fact, and
fraudulent; the decision, settling no question of
law» would not be worthy of a ulace in the re-
ports^ We take it that amid all changes and
fluctuations in the jurisprudence of Uie States,
the principle governing the appellate jurisdic-
tion of this court should remain unchanged ;
so that, whatever mode of trial may be provided
in the local tribunals, and to which the parties
have resorted, the ascertainment of a fact ac-
cording to the mode provided, is to be regarded
as final and conclusive of the fact.

We venture to submit that it is only accord-
ing to a technical view of the Judiciary Act
that this court has any jurisdiction in the prem-
ises. It is true that because the plaintiffs in
error claim under a law of Congress, and the
decision is against the right claimed, they come
literally within the terms of the 25lh section,
so that the court, according to its practice,
might refuse to entertain a motion to dismiss
for want of jurisdiction, and out of abundant
caution, reserve the question until the final
judgment. Doubtless, if the plaintiffs in error
can put their finger on any error or miscon-
stniction of law by the Chancellor in the deter-
mination of the fact, or in other words can
show that he regarded those acts of the claim-
See 22 How.

ant as fraudulent, which, in the opinion of this
court and according to its construction of the
law, were not so: then the decision of the
court below would be examined for that error.
But apart from the consideration of all other
elements of mala Jtdes,' one essential fact ascer-
tained and decid^ by the court below, is that
Cloyes did not cultivate in 1829. While that
determination stands, there never was any right,
and consequently there is no jurisdiction.

Mr. Juetice Catron delivered the opinion of
the court:

The first question presented on the record, is
whether this court has jurisdiction to examine
and revise the decision of the Supreme Court
of Arkansas by writ of error, under the 25th
section of the Judiciary Act. The question
arises on the following facts:

Nathan Cloyes, ancestor of the principal
complainants, entered as an occupant, at a Land
Office in Arkansas, a fractional quarter section
of land, in 1884, under the preemption Acts of
1880 (4 Stat, at L., 420) and 1882 (4 Stat, at L.,
603). The fraction adjoined the Village of
Little Rock on its eastern side, and was for
twenty-nine acres. The same land had been

gfttented in XtSiMi by the United Stetes to John
ope, Oovemor of the Territory of Arkansas,
to be appropriat4>d to the erection of public
buildings for said Territory. The heirs of
Cloyes claimed to have an earlier equity, by
force of their preemption right, than that of
the Gk)vemor of Arkansas.

They filed their bill in equity in the proper
state court, to enforce this equity. That bill
contained appropriate allegations to exhibit an
equitable title in the plaintiffs, and the oppos-
ing right of the patentee, and thus to enable
the courts to comnare them. Some of the de-
fendants demurrea to the bill ; others answered,
denying the facts of the settlement and culti-
vation, and pleading the hoTia Me% of their
purchase and the Statute of Limitations.

The courts of Arkansas dismissed the bill on
the demurrer; which Judfrment was reversed in
this court, and the cause remanded for further
proceedings. L^ v. Arkanme, 9 How., 814.
It was prepared for hearing a second time, and
the courts of Arkansas have again dismissed the
bill, and the cause is a secondf time before us.

The cause was fully heard on its merits be-
low ; and the claim of Cloyes rejected, on the
Sound that he obtained his entry by fraud in
ct and fraud in law ; and the question is, can
we take jurisdiction, and reform this general
decree. It rejected the title of Cloyes; and
in our opinion, it is not material whether the
invalidity of the title was decreed in the Su-
preme Court of Arkansas upon a question of
fact or of law. The fact that the title was re-
jected in the court authorizes this court to re-
examine the decree. 14 Pet., 860.

The decision in the Supreme Court of Ar-
kansas drew in question an authority exercised
under the United States, to wit: that of ad-
mitting Cloyes to nuike his entry ; and the de-
cision was M;ainst its validity, and overthrew
his title, and is, therefore, subject to be re-ex-
amined, and reversed or affirmed in this court,
on all the pleadings and proofs which immedi-
ately respect the question of the proper exer-
cise of authority by the officers administering

809

19a-314

8UPBBMB COXTBT OF THB UnITSD StATBS.

Dbc. Tkru,

the sale of the public lands on the part of the
United States.

In the case of Martin v. Hunter, 1 Wheat.,
852, the foregoing construction of the 25th sec-
tion of the Judiciary Act of 1769 was recog-
nized, and has been followed since, in the cases
of Chmiteau v. Eekhart, 2 How., 872; Gunning'
Jiam V. Ashley, 14 How.. 877; Garland v.
Wynn, 20 How., 8, and other cases.

Another preliminary question is presented
on this record, namely: whether the adjudica-
tion of the Register and Receiver, which au-
thorized Cloyes* heirs to enter the land, is sub-
ject to revision in the courts of justice, on
proof, showing that the entry was obtained by
fraud and the imposition of false testimony on
those officers, as to settlement and cultivation.
We deem this question too well settled in the
affirmative for discussion. It was so treated in
the case of Cunningham v. Athley, 14 How.,
877; affain in Barnard v. Ashley, 18 How.,
48; ana conclusively in the case of Garland
V. Wynn, 20 How., 8.

The next question is, how far we can reex-
amino the proceedings in the state courts.

In their answers, the respondents rely on the
Act of Limitations of the State of Arkansas for
protection. As this is a defense having no
connection with the title of Cloyes, this court
cannot revise the decree below in this respect,
under the 25th section of ,the Judiciary Act
(1 Stat, at L., 72}.

Many of the (defendants also relied in their
answers on the fact that they were bona fide
purchasers of the lots of land they are sued
for, and therefore no decree can be made here
to oust them of their possessions. The state
courts found that a number of the respondents
were purchasers without notice of Cloyes* claim,
and entitled to protection as bona fide pur-
chasers, according to the rules acted on by
courts of equity. With this portion of the de-
cree we have no power to interfere, as the de
fense set up is within the restriction found in the
concluding part of the 25th section, which de-
clares *' that no other error shall be assigned or
regarded by this court as a ground of reversal,
than such as immediately respects the before-
mentioned questions of validity or construction
of the Constitution, treaties, statutes, commis-
sions, or authorities in dispute." Mr. Justice
Story comments on the foregoing restraining
clause, in the case of Martin v. Hunter, 1
Wheat. , 858, which construction we need not
repeat.

Whether Cloves imposed on the register and
receiver by false affidavits, when he made
proof of cultivation in 1829, and residence on
the land in dispute on the 29th of May, 1830. is
the remaining question to be examined. He
made oath (2^ April, 1831) that he did live on
said tract of land in the year 1829, and had
done so since the year 1826. Being interrogated
by the Register, he stated : I had a vegetable
garden, perhaps to the extent of an acre, and
raised vegetables of different kinds, and com
for roasting ears; and I lived in a comfortable
dwelling, east of the Quapaw line on the be-
fore mentioned fraction. Being asked, did you
continue to reside, and cultivate your ganden
aforesaid, on the before named fraction, until
the 29th of May, 1880? he answers: *'I did ;
and have continued to do so until this time. "

■

John Saylor deposed on behalf of Cloyes in
effect to the same facts, but in genenil temut.
Nathan W. Maynor and Elliott Bursey swore
that the affidavit of Saylor was true. On the
truth or falsehood of these depositions the
cause depends.

In opposition to these affidavits, it is proved,
beyona dispute, that Cloyes and his family re-
sided at a house, for a part of the year 1828.
occupied afterwards by Doctor LUer. In the
latter part of 1828, they removed from that
place to some log cabins, situate on the lots
afterwards occupied by John Hutt. and where
the Governor of Arkansas resided in 1851.
when the witnesses deposed. Both places
were west of the Quapaw line — the cabins
standing probably one hundred yards west of
the line, and which line was the western bound-
ary of the fractional quarter section in dispute.
Cloyes resided at these cabins when he swore at
Batesville, before the Register; and continued to
reside there till the time of his death, which
occurred shortly after his return from Bateft-
ville, say in May or June, 1831, and his widow
and children continued to reside at the same
cabins for several years after his death.

Cloyes was by trade a tinner, and in Decern
ber. 1826, rented of William Russell a small
house, constructed of slabs set upright, in
which he carried on his business of a tin-plate
worker. He covenanted to keep and retain
possession for Russell of this shop against all
persons, and not* to leave the house unoccupied,
and to pay Russell $2 per month rent, and sur-
render the house to Russel or his authorized
agent at any time required by the lessor.

Under this lease, Cloyes occupied the boa<se
until the 19th day of June, 1828, when betook
a lease from Chester Ashley for the same, and
also for a garden. He covenanted to pay Ash-
ley $1 per month rent; to put and keep the
building in repair; to keep and retain possts-
sion of the same, until delivered back to said
Ashley by mutual consent, either party having
a right to terminate the lease on one month's
notice. The house and garden were rented by
the month.

Under this lease, Cloyes occupied the house,
as a tin-shop, to the time of his death. Both
the leases state that the shop was east of the
Quapaw line, and on the public lands.

This slab tenement was built by Moses Aus-
tin, about 1820. On leaving Little Rock,
he sold it to Dr. Matthew Cunningham; it
passed through several hands, till it was fin-
ally owned by Col. Ashley. Buildings and
cultivated portions of the public lands were
protected by the local laws of the Arkansas Ter-
tory; either ejectment or trespass could have
b^n maintained by Ashley against Clo;^es to
recover the premises, nor could an objection Ix;
raised by anyone, except the United States, to
these transfers of possession — neither could
Cloyes be heard to disavow his landlord's title.
He held possession for Ashley, and was subject
to be turned out on a month's notice to quit.

Cunningham and other witnesses depose that
the shop rented to Cloyes stood west of the
Quapaw line. It however appears from actual
survey, that it was on the section line, which
ran through the house, taking its southeast cor-
ner on the cast side, but leaving the greater part
of the shop west of the line.

Its u. s.

1860.

Lytlb y. Arkanbab

19a-214

. Another pertinent circumstance is, that when
Oloyes heard the Preemption Law of 1880 (4
Stat, at L., -420) was about to pass, or had
passed (it is uncertain which, from the evi-
dence), he removed his wife and cliildren, with
some articles of necesssjy furniture, to the tin-
ner's shop, from his residence at the Hutt place,
and kept his family at the shop for a few
months, and then they returned to their estab-
lished home. This contrivance was probably
resorted to at the instance of Benjamin Desha,
who had agreed with Cloyes to pay into the
Land Office the purchase money, and all inci-
dental expenses, to obtain a title from the Qov-
«mment for an interest of one half of the land.
These evasions were mere attempts to defraud
the law, and to furnish some foundation of the
necessary affidavits to support his preemption
claim at the Land Office.

On this aspect of the case, the question arises
whether Cloyes' possession as lessee and tenant
of Ashley, occupying a shop as a mechanic, the
comer of which accidentally obtruded over the
section line, upon the public land, and who
was subject to removal by his landlord each
month, was '*a settlement" on the public lands,
-within the true intent and meaning of the Act
of May 29th, 1880, 4 Stat, at L.. 420.

That Oloyes never contemplated seeking a
home on the public lands as a cultivator of the
floil, is manifest from the proof; he worked
at his trade, when he worked at all (say the
witnesses), and followed no other avocation.
Oar opinion is, that the affidavits, on which
the occupant entry was founded, were untrue
in fact, and a fraud on the Register and Re-
ceiver; and that Cloyes had no oona fide pos
Beasion as tenant of the tinner's shop, within the
true meaning of the Act of 1830.

We are bmo of opinion, that the affidavits are
disproved, as respects the fact of cultivation in
18^. There was no garden cultivated in that
year, ad joininj^ or near to the shop. To say the
least, it is quite doubtful whether there was
such cultivation cast of the Quapaw line; and
the state courts having found that there
was none, it is our duty to abide by their find-
ing, unless we could ascertain from the proof
that they were mistaken, which we cannot do ,
our impressions being to the x^ontrary.

The question of cultivation in May, 1890,
depended on parol evidence of witnesses. The
judges below knew them ; they decided on the
spot, with all the localities before them ; and
as the evidence is contradictory, it would be
contrary to precedent for this court to overrule
the finding of a mere fact by the courts below.

On the severed grounds stated, we order t/iat
the decree of the Supreme Court of Arkansas be
ujfirmed, with costs.

Dissenting, Mr. Justice
JusUee Clifford.

and Mr,

Mr. Justice Melieaii* dissenting.

I dissent from the opinion of the court, as
now expressed, and shall refer to the former
opinion, to show the nature of the case:

*' After the refusal of the Receiver to receive
payment for the land claimed, an Act was
passed, 14th July, 1882, 4 Stat, at L., 608, con-
tinuing the Act of the 29th May, 1830, 4 Slat.
at L., 420, and which specially provided that

See 22 How.

those who had not been enabled to enter the land,
the preemption right of which they claimed,
within the time limited, in consequence of the
public surveys not having been made and re-
turned, should have the right to enter such
lands, on the same conditions in every respect
as prescribed in said Act. within one year
after the surveys shall be made and returned.
And this Act was in full force before Governor
Pope selected said lands. That the public
surveys of the above fractional sections were
made and perfected on or about the 1st of De-
cember. 1833, and returned to the Land Office
the beginning of the year 1884. On the 5th of
March, 1834, the complainant paid into the
Land Office the sum of $185. 76^, in full for
the above named quarter section."

That a certificate was granted for the same,
"on which the Receiver indorsed, that the
northwest fractional quarter section two was
a part of the location made by Governor Pope
in selecting 1.000 acres, adjoining the Town of
Little .Rock, granted by Congress to raise a
fund for buildinff a courthouse and jail for
the Territory; and that the indorsement was
made by direction of the Commissioner of the
General Land Office. " ' ' That the Register of
the Land Office would not permit Uie said
fractional quarter sections to be entered."

It appeftfed that "the patentees in both of
said patents, at the time of their application to
enter the lands, had both constructive and actual
notice of the right of Cloves, and that the pres-
ent owners of any part of these lands had also
notice of the right of the complainants."

In his dissenting opinion, Judge Catron saya:
** The proof of occupancy and cultivation was
made in April, 1881, under the Act of 1830,
pursuant to an instruction from the Commis-
sioner of the General Land Office having
reference to that Act The Act itself, the in-
struction under its authority, and the proofs
taken according to the instruction, expired and
came to an end on the 29th Ma}[, 1831. After
that time, the matter stood as if neither ha^
ever existed; nor had Cloyes more claim to
enter from May 29, 1831. to July, 1832. than
any other villager in Little Rock."

Kow, although it may be true that, until the
Act of 1832 had passed, the Act of 1^30 hav-
ing expired, the preemptive right of Cloyes
could not be perfected, yet the policy of the
law was, where vested rights had accrued,
which, by reason of delays in the completion
of surveys, could not be carried out, the Gov-
ernment" gave relief by extending the law.
And the Inchoate right was secured by the
policy of the Government. It is, therefore, not
strictly accurate to say, the party entering a
preemption has no right. He has a right,
recognized by the Government, by which he is
enalHed to perfect his right; and under such
circumstances, no new entry could interfere
with a prior one, though imperfect.

This court say, the proof of the preemp-
tion right of Cloyes being entirely satisfactory
to the land officers, under the Act of 1830,
there was no necessity of opening and receiving
additional proof under any of the subsequent
laws. The Act of 1830 having expired, all
rights under it were saved by the subsequent
acts. No steps which had "been taken were
required again to be taken.

8tl

108-214

BUPRBUB COUKT OF THB UnITKD STATBB.

Dec. Tkbm»

"Did the location of Qoveraor Pope, under
tlie Act of Congress, affect the claim of Cloyes?
On the 16th of June, 1882, one thousand acres
of land were granted, adjoining the Town of
Little Rock, to the Territory of Arkansas, to
be located by the Governor. This selection
was not made until the 80th of January, 1888.
Before the grant was made by Congress of
this tract, the right of Cloves to a preemption
had not only accrued, under the provisions of
the Act of 1880. but he had proved his right,
under the law, to the satisfaction lof the reg-
ister and Receiver of the Land Office. He had.
in fact, done everything he could do to per-
fect this right. No fault or negligence can be
charged to him.''

" By the grant to Arkansas. Congress could
not have intended to impair vested rights.
The grants of the thousand acres and of the
other tracts must be so construed as not to in-
terfere with the preemption of Cloyes."

From the citations above made in the original
opinion in this case, the following facts and
principles of law are too clear to admit of doubt
by anyone :

1. That Cloyes' preemption to fractional
quarter section No. 2 was clearly established,
by the judgment of the land officers and of this
court.

2. That the location of Governor Pope, be-
ing subsequent to the right of Cloyes, could
not affect, under the circumstances, that right,
and that the conveyance was subject to it.
This appears by the certificate of the Land
Office, by the uniform action of the Govern-
ment in all such cases, and the good faith which
has characterized the action of Government, in
protecting preemption riehts. by giving time
to protect such right, where the Government
officers had failed in doing their di^y. And in
addition to these considerations, in the solemn
declaration of this court, "that Congress could
not have intended to impair vested rights."
And the court say, " the grants of the thousand
acres and of the other tracts must be so con-
strued as not to interfere with the preemption
of Cloyes."

This court sav, "The Supreme Court of the
State, in sustaining the demurrers and dis-
missinff the bill, decided against thepreemption
right claimed by the representatives of Cloyes;
and as we consider that a valid right as to the
fractional quarter on which his improvement
was made, the judgment of the state court
was reversed."

"Now, the defendants demurred to the
original bill, which they had a right to do. and
rest the case on the demurrer's appearing on
the face of the bill. But this court held Cloyes'
right valid, and conseouently reversed, on this
head, the judgment of the state court. And
the cause is transmitted to the state court for
further proceeding before it, or as it shall di-
rect on the defense set up in the answers of
the defendants, that they arc bona fide pur-
chasers of the whole or parts of the fractional
section in controversy, without notice, and that
that court give leave to amend the pleadings on
both sides, if requested, that the merits mav
be fully presented and proved, as equity shall
require."

Now. it is perfectly clear that nothing was
transmitted under the direction of this court

812

to the state court, except the latter part of the
^9entence beginning, "and the cause is trans-
milted to that court," &c. And* that part re-
lates whollv to the inquiry whether the defend-
ants were bona fide purchasers of the whole or
parts of the fractional section in controversy.
And for this purpose, leave was given to
amend the pleadings.

If there is anything in this bill which af-
forded any pretense to the state court to open
the pleadings, and examine anv matters in the
bill, except those specified in its close, it has
escaped my notice.

It is said m the bill, " the Register and Re-
ceiver were constituted, bv the Act, a tribunal
to determine the ri^ht of those who claimed
preemptions under it. From their decision no
a]}peal was given. If, therefore, they acted
within their powers, as sanctioned by the Com-
missioner, and within the law, tlie decision
cannot be impeached on the ground of fraud or
unfairness; it must be considered final."

The court here was speaking of its own
powers of jurisdiction and investigation, and
not the powers of any other tribunal. It was
supposed that no superior court would willing-
ly permit its judicial powers to be subverted^
new parties made, new subjects introduced,
and the whole proceedinffs reversed, at the
will of an inferior jurisdiction, without the
exercise of a controlling power.

This State Record of Arkansas seems to have
been a prolific source of contioversv, as its
proportions have ^own to about a thousand
pages, not including briefs and statements of
facts. It certainly must require some skill in
legislation, to draw into the state court so
large an amount of bu9iness under Uie laws of
Congress. And it may become a matter of
public concern, when such a mass of judicial
action is not only thrown into the state courts
but new rules and principles of action are lia-
ble to be sanctioned, in disregard of the laws
of the United States.

Without any authority, it does appear that
the judgment of the Supreme Court baa been
reversed by the Arkansas court, its proceeding
modified in disregard of its own judgments and
opinions clearly expressed, and new rules of
proceedings instituted and carried out; and
this under an authority given to the Arkansas
court to ascertain whether certain purchases
had been made bona fide.

Cloyes, in his lifetime, by his own affidavit,
and the affidavits of others, made proof of his
settlement on, and improvement of; the above
fractional quarter, according to the provisions
of the Act, to the satisfaction of the Register
and Receiver of said land district, aj^reeably to
the rules prescribed by the Commissioner of
the General Land Office; on the 20th May.
1831, Hartwell Boswell. the Register, and John
Redman, the Receiver, decided that the said
Cloyes was entitled to the preemption right
claimed. "On the same day, he applied to
the Register to enter the northwest iractional
quarter of section two, containing thirty acres
and eighty -eight hundredths of an acre." But
the Register very properly decided that Cloyes
could only be permitted to enter the fraction
on which his improvement was made.

The Commissioner of the General Land
Office, and the Register and Receiver, declare

68 U. 8.

18S9.

KiMBRO V. BdLLITT.

256^-269

they were satisfied with the proof made in the
case; but the Supreme Court of Arkansas de-
cided against the preemption right claimed by
the representatives of Cloyes; and the Supreme
Court of the United States say, " as we con-
sider that a valid right as to the fractional
quarter on which the improvement was made,
Uie Judgment of the state court is reversed."

How does this case now stand? It stands
reversed upon our own records by the Supreme
Court of Arkansas, and by no other power. A
malority of this bench entered the judgment,
as It now stands, in 1849. But, through the
reforming process, of a record of a thousand
pages, not including notes and statements of
facts, it has become a formidable pile, enough
to fill with despair the tlrst claimant of the pre-
emption right.

It is true, the cause was sent down for a
special purpose, every word of which I now
copy:

"And the cause is transmitted to that court
(the Supreme Court of Arkansas) for further
proceedings before it, or as it shall direct, on
the defense set up in the answers of the de-
fendants, that they are bona fide purchasers of
the whole or parts of the fractional sections in
controversy, without notice, and that that
court five leave to amend the pleadings on
Doth sides, if requested, that the merits of the
case may be fully presented and proved, as
equity snail require."

Several of the defendants alleged thev were
bona fide purchasers of a part (^ the whole of
the fraction, without notice; and the object in
sendine the case down was to enable persons to
show Uiey were purchasers of this character.
This did not necessarily involve fraud. And
this embraces the whole subject of inquiry.

It would have been inconsistent for this
court to say, we consider the preemption claim
by the representatives of Cloyee as a valid
eight, as to the fractional quarter on which his
improvement was nuide, and on that ground to
reverse the judgment of the State court, and at
the same time send the case down, open to the
cfaarse of fraud and every conceivable enormi-
ty. The object was to know who were pur-
chasers without notice. That this was the in-
tention of the Supreme Court, is palpable from
the language of the entry.

The majority of the Supreme Court had full
confidence in the validity of Cloyes' claim, and
consequently they reversed the judgment of
the state court, leaving the question open,
whether the defendants were purchasers with-
out notice. It may be that this entry would
have protected all the purchasers.

From the nature of preemption rights, it is
presumed, a person desirous of such a right is
the first applicant. And the proof of such a
riffht, if sustained by the Kegister and Re-
ceiver and the Commissioner of the Land
OfiQce, the proof required, is deemed satisfac-
tory. It is only where a fortunate selection
appears to be made, by the prospect of a city,
or some great local advantage is anticipated,
that a consent arises as to such a claim.

The officers of the Land Department, whose
peculiar duty it was to protect the public
rights, seemed to have discharged their duty to
the satisfaction of the Government. This was
also entirely satisfactory to a majority of the

See 32 How.

judges of this court, with the single exception,
that, from the answers, it was probable that
there may have been purchasers of this right
without notice. And from the evidence intro-
duced, it would seem to have been considered
that anyone who at any time desired to pur-
chase, considered himself as having a right to
complain, although he had no means to make
the purchase, or had no desire to make it. •

If I mistake not, evidence was heard from
witnesses from twenty to twenty-five years
after the preemption right was sanctioned by
the government. Such a course tends greatly
to embarrass land titles under the General Land
law. Every one knows that a man who en-
deavors to obtain a preemption, must, in the
nature of things, be a man of limited means,
and incapable of maintaining an expensive suit
at law ; and it has always appeared to me the
true policy to linlit those questions to the
Land Department of the Government. At all
events, they should be limited to the federal
tribunals, where, it may be presumed, the Land
Department will have an uniform administra-
tion.

As this case now stands, I think the judg-
ment of the Arkansas Supreme Court must be
reversed on two grounds :

1. Because it has reversed the judgment of
this court, entered by a majority of the mem-
bers at December Term, 1849, in these words:
" The Supreme Court of the State, in sustain-
inff the demurrers and dismissing the bill, de-
cided against the preemption claimed by the
representatives of Cloyes; and as we consider
that a valid right, as to the fractional quarter
on which his improvement was made, the
Judernent of the state court is reversed."

liiis is the judgment of this court as it now
stands upon our oocket. And,

2d. The judgment of the state court must
be reversed, because it wholly disregarded the
directions of this court in trying the issues
transmitted to it.

S. C.-60 U. S. (9 How.). 314.

Rev'g— 17Ark..608.

Cited-eS U. 8. est How.), 208, 339 ; 88 U. 8. (1
Black.), 325: 87 U. 8. (2 Black.), 5d8 ; 80 U. 8. (13
Wall.), 85; ^ Cal., 815 ; 51 Cal., 400 ; 17 Kan., 422.

JOSEPH KIMBRO, Pfff, in Err.,

CUTHBERT BULLITT, THOMAS D. MIL-
LER AND LLOYD D. ADDISON, Part-
ners in Trade, under the Name and Style of
Bui JiiTT, Miller & Co.

(See 8. C, 22 How., 268-289.)

One partner may draw inUs in firm name — each
partner has general authority — resirictiojie
thereto, by priaate agreement bettoeen partners,
do not affect the publte— farming partnerships
— what is a trading firm— firm, bovnd as
drawers of bUl, although the money is applied
by one partner to unlawful purpose.

'ScyT^.—IAahility of partners ori bills and notes.
Power of partner, cu agent* to hind the firm as party
to neootiabU instruments, and otherwise. See note
to LeRoy v. Johnson. 27 U. 8. (2 Pet.). 188. How
far partners are liable for each other's acts. See note
to Nelson v. HUl. 48 U. S. (6 How.), 127.

818

256-269

SUPKSMK COUKT OT THS UnITKD BTATK8.

Dec. Tkbm,

Ooe of several partners composinflr a tradlog
firm, has power to draw bills or excimnerein the
name of the firm, unless restricted from so doin^
by the terms of the copartnership a^rreement.

Each partner of a tradlngr Arm is presumed to be
intrusted by his copartners with a ^reneral author-
ity in all the partnership affairs.

A restriction which, by airreement amonir the
partners, is attempted to be imposed upon the au-
thority which one partner possesses, as a general
a^nt for the other, is operative only between the
•partners themselves.

It does not limit the authority as to third persons,
who acquire rifirhts by its exercise, unless they
know that such restriction has been made.

Farming partnerships, when strictly confined to
that purpose, are held to be within the exception to
the above stated general rule.

Where farming was not sole business of the part-
ners composing the firm, but they were also en-
gaged in running a steam saw-mill, for manufac-
turing purposes ; held, they were a trading firm.

Where bills were drawn by the firm, and were
duly accepted and paid by the plaintiffs at matur-
ity, on account of the firm, their right to recover
the amount cannot be affected by the fact that one
of the drawers applied the money to an unlawful
purpose.

Submitted Feb. 8, I860. Decided Feb. gO, 1860,

IN ERROR to the Circuit Court of the United
States for the Middle District of Tenneesee.
The case is stated by the court
See, also, the opening statement in the ab-
stract here given of Mr. Beniamin's argument.
No counsel appeared for plaintiff in error.

Mr, J. P. Bet^amin, for defendants in
error:

This is an action instituted in the Circuit
Court for the Middle District of Tennessee, for
the recovery of the amount of three bills of ex-
change drawn by Morgan McAffee and Dement
Kimbro & Sons, to the order of, and indorsed
by, Morgan McAffee, and alleged to have been
accepted and paid by Bullitt. Miller & Co., the
drawees, for the accommodation of the draw-
ers.

The action was brought against Joseph Kim-
bro alone, the partner of the firm of Dement,
Kimbro & Sons, and the grounds of defense as
shown by the pleadings and bill of exceptions
were two, viz. :

1. That Dement, the principal acting part-
ner of the firm of Dement, Kimbro & Sons,
had no power to draw the bills sued on.

2. That the bills of exchange were drawn
and accepted for the purpose of raising money
to be laid out in the purchase of slaves, to be
imported from some other State or Territory of
the United States, for sale into the State of
Mississippi, which slaves were afterwards pur-
chased with said money and imported as afore-
said into the State of Mississippi, and there sold
acc6rding to the original intent, contrary to the
form of the Statute of Mississippi, in that be-
half made and provided.

On the trial the Judge charged the jury in
the following words:

•'The court charge the jury that Dement,
the principal acting partner of the firm of De-
ment. Kimbro & Sons, had power to draw the
bills given in evidence according to the proof
adduced to them, if true; that if the bills were
accepted and paid at maturity by the plaintiffs
for said firm, the defendant Joseph Kimbro,
was responsible; and it mattered nothing to the
plaintiffs how the proceeds of the bills were
disposed of, as this was a fact the plaintiffs
could not know, and were not bound to prove."

814

The case comes before this court on excep-
tions taken to the above charge.

I. The charge that Dement had power to
draw bills was correctly given, and is sustained
by the proof.

From the foregoing testimony it is plain, that
even inier ee there was such a trading partner-
ship as authorized the drawing of bills by one
partner in the name of the firm; although the
farming business might not authorize the exer-
cise of such a power, running a saw-mill for two
years necessarily required the purchase of the
requisite stock of w^3d, and its resale as boards,
planks, scantling, &c.

In mining partnerships and fanning partner-
ships, it has been held that such powers are not
vested in the partners, and the reason is, that
their business is simply to sell the produce of
the real estate, to make profits out of the soil
by gathering its fruits; but wherever the bwi-
ness imports in its nature the necessity of buy-
ing and selling, the partnership is in its esseDce
a trading partnership.

The general doctrine is admirably summed
up in the opinion of Gh. J, Marahall, in the case
of a manufacturing partnership.

Winship V. Bank of the U, A, 5 Pet., 529.

So it was held that one partner could bind
the firm by a promissorv note, where the part-
nership was for carrying on the business of
farming and coopering.

McGregor "9. CUwUmdy 5 Wend., 475.

And although there be no partnership in real
estate, the parties being tenants in common,yet
if they are common tenants of timber land and
do a lumber business, they are trading partners
in the timber cut from the land.

Bak&r v. Wheeler, 8 Wend., 505; CWm t.
Colee, 15 Johns., 160.

Partners in a steam saw-mill are bound by
the note of the partnership given by some of
the partnera for partnership purposes.

Johnean v. DutUm, 27 Ala., 245.

And even where the partnership is limited, a
note by one of the partners, in the name of tho
firm, is prima fdde for the firm's account.

Holmee v. Porter, 89 Me., 157.

See, also. Story Part., sec. 1U2.

And it makes no difference as to the power
of a partner to bind the firm, that the trade
was a particular and limited trade.

Chit. Bills. 10th Am. ed., p. 44.

II. But independently of the question as to
the powers of the partners in controversies in-
terse ns regards the present case, where the
holders of the bills are third persons ignorant
of the special partnership agreement, the part-
nership is bound, because it was actually en
^ged in general trading, and Dement, who
signed the oills, was the ostensible and princi-
pal business partner. It was in the light of a
general trading partnership that this firm ex-
hibited itself to the public. It was quite imma-
terial whether or not there existed a secret con-
tract limiting his powers.

Sto. Part., sec. Ill, 126, 180; Coll. Part., sec.
386 ; Gow. Part. . pp. 52-55 ; 3 Kent Com. ,40-
45: Winship v. Bank U. S., 5 Pet. 529; Car
gill V. Corby, 15 Mo., 426; MchoU v. Cheam,i
Sneed, (Tenn). 229; Frost v. Hanford, 1 E. D.
SmiUi. 540.

And in the above case of Cargill v. Oorbg,
the test of the power to draw bills and notes id

6S U. 8.

1659.

ElMBRO V. BCLLITT.

25ft-269

the name of the firm is stated to be, whether
the business was to ' * buy and sell. " It is plain
that the business of a steam saw mill cannot be
conducted without buying and selling.

III. Independent!;^ of the legal presumption
that the bills drawn in the partnership name
were for partnership account, the partnership
articles show that negroes were necessary for
their business, and that the parties promised to
furnish them for carrying it on. p. 12.

The only remaining point to be considered,
is the legality of the second charge of the judge
— " that if the bills were accepted and paid at
maturity by the plaintiffs for said firm, the de-
fendant Joseph Eimbro, was responsible, and
it mattered nothing to the plaintiffs how the
proceeds of the bills were disposed of, as this
was fl fact the plaintiffs could not know, and
"Were not bound to prove."

In point of law the instruction was clearly
right.

The idea that money loaned or ad van<^ can-
not be recovered, because the borrower applies
it to an unlawful purpose, was never count
tnanoed by any jurist.

It is true that ex turpi eaum non oritur actio.
But what is the contract now before the court?
A contract for advancing money. There is
nothinff illegal in that. If the money was to be
applied to an unlawful purpose the illegality
was in the application, not in the borrowing.
The contract for purchasing the slaves might
be in contravention of law; and if so, would
not be enforced in a court of justice; but on the
ground now assumed by plaintiffs in error, it
would be incumbent on the court to refuse to
maintain an action for the price of goods sold,
if the purchaser could prove that the vendor
intended to raise .money by the sale, to be ap-
plied to an unlawful purpose. The proposition
will not bear an instant's examination. The
whole doctrine on the subject was scrutinized,
and the true principles governing it settled by
this court in 1826, and ue law is now too well
established to require any further citation of
authorities.

See AmMtrong v. Toler, 11 Wheat., 358.

Mr. Justice Cliflbrd* delivered the opinion
of the court:

This case comes before the court upon a writ
of error to the Circuit Court of the United
States for the Middle District of Tennessee. It
was an action oiasHumpnt brought by the pres-
ent defendants against the plaintiff in error, to
recover the amount of three several bills of ex-
change, particularly described in the declara-
tion. As exhibited in the transcript, the several
bills of exchange bear date at Lexington, in
the State of Mississippi,on the 2d day of April,
1853, and purport respectively to have been
drawn and addressed to the original plaintiffs
by one Morgan McAffee, and by Dement, Eim-
bro & Sons. They were each for the sura of
$2,000, and were severally made payable to the
order of the first named drawer, by whom also
they were duly indorsed. Two of them were
likewise indorsed with the firm name of the other
drawers. At the time the bills of exchange
were executed, the original defendant was a
member of the firm of Dement, Eimbro & Sons;
and it was conceded in the pleadings and at the
trial, that the bills of exchange were drawn and

See 22 How.

negotiated by the senior partner of that firm.
All the members of that partnership, except the
defendant, were citizens of the State of Missis-
sippi at the time the suit was commenced, and
were residing out of the jurisdiction of the
court ; and for that reason, as alleged in the de-
claration, the other partners were not sued in
this action. In the court below, the plaintiffs
claimed to recover against the defendant, upon
the ground that the firm, of which he was a
member, were the drawers of the bills of ex-
change,and that they, the plaintiffs,had paid the
amount, or the principal portion of the same,
out of their own funds, as exceptors, for the ac-
commodation of the drawers. Without at-
tempting to give any very definite anal^rsis of
the several pleas filed by the defendant, it will
be sufilcient for the purposes of this investiga-
tion to state that he set up two distinct grounds
of defense in answer to the claim of the plaint-
iffs:

1. To the merits of the claim he pleaded the
general issue, and denied specially that he ever
drew the bills of exchange descrioed in the de-
claration, or that he ever authorized anyone to
draw them in his name, or in the name of his
firm.

2. For a further defense, he also alleged, in
his fourth plea to the amended declaration, that
the bills of exchange were drawn and indorsed
by Dement, and accepted by the plaintiffs, for
the purpose of raising money to be laid out in
the purchase of slaves, to be imported from
some other State or Territory of the United
States, for sale, into the State of Mississippi,
which slaves he alleged to be afterwards
purchased with the money and imported into
the State, and there sold, according to the
original intent, contrary to the form of the
statute of that State in such case made and pro-
vided. To that plea the plaintiffs replied,
traversing the allegations of fact, and tendering
an issue, which was duly joined. Some of the
pleas resulted in issues of law, all of which were
ruled in favor of the plaintiffs, and the defend-
ants acquiesced in the rulings of the court.

Evidence was then introduced on both sides
upon the issues involving the merits of the claim,
and the court instructed the jury that Dement,
the principal acting partner of the firm, had
power to draw the bills given in evidence ac-
cording to the proof adduced to them, if true ;
that if the bills were accepted and paid at matu-
rity by the plaintiffs for the firm, the defendant
was responsible, and it mattered nothing to the
plaintiffs how the proceeds of the bills were
disposed of, as that was a fact the plaintiffs
could not know, and were not bound to prove.

Under the charge of the court, the jury re-
turned their verdict in favor of the plaintiffs for
the amount claimed, deducting certain admitted
credits, according to the account exhibited in
the transcript, and the defendant excepted to
the instructions of the court. It is obvious, on
the first reading of the instruction, that it con-
tains two distinct propositions, and no doubt is
entertained that both were intended to be con-
troverted by the exceptions. In the first place,
it affirms that the evidence adduced, if found
to be true, was sufficient to show that the act-
ing partner of the firm, of which the defendant
was a member, had power to draw the bills of
exchange described in the declaration. Accord-

8t6

256-269

SUFBBMB COUBT OF THB UinTBD StATBB.

Dec. Txrm,

ing to the proofs introduced by the plaintiffs,
the firm commenced business at Lexington, in
the State of Mississippi, in January, 1853, and the
partnership was continued, without interruii-
tion, until the third day of October, of the same
year, when it was terminated by the death of
the senior partner. They also proved, by two
witnesses, that the firm was engaged during that
period in farming, carrying on a steam saw-
mill, and in general trading. Both of these
witnesses testified that the senior partner, who
drew the bills of exchange in question, was the
active business partner of the firm ; and one of
them added, that he did the principal trading,
and borrowed money, and paid it back in the
name of the firm.

Their partnership agreement was introduced
by the defendant. It bears date on the 5th
day of January, 1853; and the partnership was
formed, as recited in the instrument, to con-
tinue for the term of two years, for the purpose
of farming and of carrying on a steam saw- mill.
By its terms, one third of the capital stock was
to be furnished by the senior partner, one third
by the defendant, and the remainder by his two
sons. Those five persons constituted the firm,
under the name and style before mentioned.
And it was further stipulated that negroes or
hands, stock, provisions, and all necessary
utensils, should be furnished by the respective
parties, according to their interest in the capital
stock, and that they should defray the expenses
of the copartnership and share its profits in the
same proportions. They also designated the
farm to be carried on, and stipulate that the
steam saw mill should be located at such place
as a majority of the partners in interest should
determine.

After the partnership agreement was execut-
ed by the parties, it was deposited with a third
person; and it appeared from his deposition,
taken by the defendant, that it remained in his
possession from that period to the time of his
examination. In the same deposition, the wit-
ness testified that the firm, so far as he knew,
liad never been held out by the defendant as
having any more extensive powers than those
conferred by the partnership agreement.

Some attempt was made by toe defendant to
prove that it was the usage, in partnerships of
this description, when money was wanted to
carry on the business, and the several partners
could not be consulted, for the managing partner
to raise it on his own credit, and charge it to
the partnership ; but the proof was not sufficient
to show any such general usage.

Such was the substance of the evidence on
which the charge of the court was based, and
we think it was of a character to justify that part
of the instruction under consideration. Our
reasons for that conclusion will now be briefiy
stated.

That one of several partners composing a
trading firm has power to draw bills of exchange
unless restricted from so doing by the terms of
the copartnership agreement, is a proposition
which, it is presum^, no one will dispute.
Whenever there are written articles of agree-
ment between the partners, their power and
authority, inter «e, are to be ascertained and
regulated by the terms and conditions of the
written stipulations. But, independently of any
such stipulations, each partner possesses an

816

equal and general power and authority, in behalf
01 the firm, to transact any business within the
scope and objects of the partnership, and in the
course of its trade and business.

Acts performed by one of the partners, in
respect to the partnership concerns, and in the
usual course of its business, differ in nothing,
so far as their legal consequences are concerned,
from those transactions in which they all con-
cur; and for the reason, that, by the commer-
cial law, each partner of a trading firm is pre-
sumed to be intrusted by his copartners with a
general authority in all the partnership affairs.
Accordingly, it was held, in Bdtoken v. Brntme,
8 Mees. & W., 710, that one partner, by virtue
of the relation he bears to the firm, is consti-
tuted a general agent for another, as to all mat-
ters within the scope of the partnership dealings,
and has conferred upon him, by virtue of that
relation, all authorities necessary for carryings
on the partnership, and all such as are usually
exercised in the business in which they are en-
gaged. Any restriction which, by agreement
among the partners, is attempted to be im-
posed upon the authority which one partner
possesses, as a general agent for the other, is
operative only l^tween the partners themselves,
and does not limit the authority as to third per-
sons, who acquire rights by its exercise, unless
they know that sudi restrictions have been
made.

Contracts made by one of several partners,
in respect to matters not falling within the
ordinary business, objects and scope of the
partnership, are not binding on the other part-
ners, and create no liabili^ to third persons,
who have no knowledge that the partner mak-
ing the contract is acting in violation of his
duties and obligations to the firm of which he is
a member. But whenever credit is given to the
firm, within the scope and objects of the part-
nership, and in the course of its trade and busi-
ness, whether the partnership be of a general
or limited nature, it will bind all the partners,
notwithstanding any secret stipulations or^ res-
ervations between themselves, which are un-
known to those who give the credit. Harriton
V. Jackson, 7 T. R., 207; Pinkney v. HaU, 1
Salk., 126; Lane v. WiUiame, 2 Vem., 277;
Swan V. SteeU, 7 East., 210; Byles. Bills, p.
31; 3 Kent's Com., p. 40; Story, Part., sec.
105; Collyer, Part., sec. 401.

Apply these principles to the facts disclosed
in evidence, and it is clear that the power of
the acting partner was ample to authorize him
to draw the bills of exchange in the name of
the firm, unless it can be shown that the firm
of which he was a member was not one falling
within the general rules of law. defining and
regulating the rights and obligations of part-
ners engaged in the transactions and buiuness
of trade. ■

All partnerships, says Chancellor Kent, are
more or less limited ; and there is none that em-
braces, at the same time, every branch of busi-
ness. Such limitations are generally to be
found in the terms and stipulations of the arti-
cles of copartnership; but they may arise from
general usage, or, to a certain extent, from the
character of the business, and the nature of
the objects to be accomplished.

Patnerships are sometimes formed by those
who are interested in real estate, for the mere

68 U. S.

1859.

United States v West's Heibs.

815-318

purpose of farming; and in respect to that class
of business arrangements, it has been held,
that one of the several partners does not
possess, bv virtue of that relation merely, the
right, without the consent of his associates, to
draw or accept bills of exchange, for the reason
that such a practice is not usual, nor is it neces-
sary for carrying on the farming business.
Collyeron Part. (ed. 1848), sec. 402; Oreenslade
V Xhtcer, 7 Barn. & C, p. 635; Dickinson v.
VdlpSff 10 Bam. & C, p. 138, per Littledale, J.

In the case last named, it was held that a cer-
tain mining company fell within the same ex-
ception ; and, on the facts disclosed, no doubt
the question was well decided. But the mere
circumstance that the business consists in mak-
ing profits out of real estate, as in working a
stone quarry, will not necessarily take the case
out of the operation of the general rule. Thiek-
neMe v. Bromilow, 2 Crompt. & J. , 425.

Farming partnerships, when strictly confined
to that purpose, are held to be withm the ex-
ceptions to the general rule, upon the ground,
as assumed by the coimsel for the plaintiffs,
that their principal object is to make profits out
of the soil, by gathering its fruits, and that the
partners are in no proper sense engaged in trade ;
but wherever the business, according to the
usual mode of conducting it, imports, in its
nature, the necessity of buying and selling, the
firm is then properly regarded as a trading
partnership, and is invest^ with all the powers
and subject to all the obligations inciaent to
that relation. Mc Oregor v. Cleveland. 5 Wend . ,
475; WinMp v. Bank of the United States, 5
Pet., 529; Bakery. Wheeler, 8 Wend., 505; Coles
V. Coles, 15 Johns., 160; Johnston y. Button, 27
Ala. R, 245; Hedleyy. BainMdge,Sq. B., 821.

Another answer, however, may be given to
the objection to this part of the instruction,
which is entirely conclusive against it. Ac-
cording to the evidence, farming was not the
sole business of the partners composing this
firm. They were also engaged in running a
steam saw-mill, for manufacturing purposes;
and common observation will warrant the re-
mark, that those who engage in that business
always want capital to carv it on, and fre-
quently find it necesssay to ask for credit. Like
those engaged in other branches of manufac-
tures, they buy and sell, and have occasion to
remit money and collect it from distant places.

Two witnesses also testified at the trial that
this firm was engaged in general trading; and
there was no evidence introduced by the defend-
ant to contradict their statements. Whether the
witnesses were entitled to credit, and whether,
in point of fact, this firm was a trading firm,
were questions which were properly submitted
to the jury. B^ the verdict, both questions
were found in favor of the plaintiff, and the
finding of the jury is conclusive.

2. One other point only remains to be con-
sidered, wiiich arises out of the second propo-
sition contained in the charge of the court. It
was to the effect, that if the bills of exchange
were accepted and paid at maturity by the
plaintiffs for the firm, then the defendant was
responsible, and it mattered nothing to the
plaintiflfs how the proceeds were dispc^ed of.

No evidence was offered by the defendant in
support of the issue raised by his fourth plea to
the amended declaration, and there was none

See 22 How.

in the case tending to show that the proceeds
had been applied to any illegal object, or in any
manner misappropriated. Such being the fact,
it is obvious that this part of the instruction
became entirely immaterial; which, of itself, is
a sufficient answer to the objection.

But another answer may be given to the ob-
jection, which perhaps will be more satisfac-
tory; and that is, we think it was clearly cor-
rect. It will be observed that this part of the
charge was based upon the theory that the
bills of exchange were drawji by the firm of
which the defendant was a member; and prop-
erly so, for the reason that the question ot au-
thority to draw them had been disposed of in
the preceding part of the charge.

In considering this objection, then, it must
be assumed that the bills were drawn by the
firm, and that they were duly accepted and
paid by the plaintiffs at maturity, on account
of the firm; and if so, it is not perceived how
their right to recover the amount can be affected
by the fact that one of the drawers applied the
money to an unlawful purpose. Where a
contract grows immediately out of and is con-
nected with the illegal or immoral act of the
party claiming the benefit of it, courts of justice
will not lend their aid to enforce it. Arm-
strong V. Toler, 11 Wheat., 258.

But the illegal act, if any, in this case, was
performed by one of the drawers of the bills,
and not by the acceptors. Suppose one of a
firm should borrow money of a third pd^son.
in the name of the partnership, and apply it
to an unlawful purpose, it surefy could not de-
feat the right of the lender to recover on the
contract.

Regarding this point as too clear to be the
subject of disputte, we forbear to pursue the
discussion.

After a careful examination of the excep-
tions, we think they cannot be sustained.

The judgment of the Circuit Court is, therefore,
affirmed, with costs.

THE UNITED STATES, Ajypts.,

«.

THE WIDOW AND HEIRS •of Marcus

West, Deceased.

(See 8. C, 22 How., 815-818.)

Rights of wife and children of grantee, not af-
fected by fraudulent alteration of grant.

Where fraudulent attempts were made to enlartre
the quantity Intended to be rranted in a Mexican

?:nint, by erasures and interiineatioDs, after Cali-
ornia had been ceded to the United States,
though the proof of It is undeniable, and was an
attempt to defraud the United States, that cannot
take away from the wife and children of the
grantee their claim to the original grant, which
was made before California had been transferred
by Treaty.

Argued Feb. U, 1860. Bedded Feb. 27, 1860.

APPEAL from the District Court of the Unit-
ed States for the Northern District of Cali-
fornia.

This case arose upon a petition to the Board
of Land Commissioners in California, by the
appellees, for the confirmation of a claim to a
tract called San Miguel.

817

881-341

SuFiuEMB Court of the Unitbd Statjbs.

Dec. Txrm,

The Board of Commisaioners rejected the
entire claim; but, on appeal, the district court
allowed it to the extent of one league and a
half, and entered a decree accordingly; where-
upon the United States took an appeal to this
court.

A further statement of the case appears in
the opinion of the court.

Mr. J, S. Black* Atty-Gen., and Mr.
Stanton, for appellants.

Mes^s. C. Benham and F, Marbury, for
appellees:

The claimants derive title by succession.
The grant of November 2d is admitted to be
genuine. It must be confirmed to the extent
of one league and a half. Its alteration did
not devest the rights which vested under it. It
is immaterial who made the alteration, al-
though as a matter of fact it was not made by
the claimants, or with their knowledge or con-
sent.

There is another grant in the archives, which
vested the land (the league and a half} in West,

Letoiay. Payn, 8 Cow., 75, 76; Jaclaon v.
Qmld, 7 Wend., 864; Hat&li v. Hoick, 9 Mass.,
top pages 297, 298, 307; Boty. Hirst, 8 Stark..
60; Htrrick v. Malin, 22 Wend., 391; 8 Presl.
Abs., 108; 2 H. Bl. 263; Bull. N. P., 267.

The position of the Aity-Qen., that the al-
teration of the grant is an abandonment of
title which will prevent confirmation by this
court, is not tenable. It cannot be held there
was ftny abandonment when the claimants con-
tinued, as they have always done, to occupy the
land.

All the conditions, imposed by the Jimcno
grant, were complied with.

The second grant is not forgery, and should
be confirmed.

The evidence of genuineness of the second
grant is both direct and circumstantial.

That of forgery is negative and inconclu-
sive.

Mr. Justice Wayne delivered the opinion
of the court:

All of the documents upon which the vde-
fendant« rely for a confirmation of their right
to the land in dispute, are to be found on file
in the archives among the expedientes of the
first class. Concerning the genuineness of
those which show that a grant for a league and
a half was originally made to Marcus West,
there can be no denial. They were admitted
by the Attorn^- (Jeneral to be genuine; but he
resists the confirmation of that title, upon the
ground that fraudulent attempts were subse-
quently made to enlarge the quantity intended
to be granted, by erasures and interlineations.

West first petitioned for the land, without
stating the quantity. In a few days afterwards,
General Yallejo certified that the land asked
for was vacant, and Uiat it was not within
twenty leagues of the boundary of California,
nor within ten leagues of the sea shore. On
the 80th of October, 1840, a report was made
to the Governor, that the petitioner had the
quahfications for receiving a grant, and that
the land might be granted.

Jimeno was then acting as Governor ad in-
terim. He declared West to be entitled to the
land, to the extent of a league and a half, de-
scribing particularly its boundaries; and he

818

made an entry of his executive action in the
case, in what is termed Jimeno's Index.

We do not regard that catalogue of grants as
authoritative proof of grants enumerated in it,
or as a conclusive exclusion of grants not »o
registered by Jimeno. which may be alleged to
have been made whilst California was a part of
the Mexican Republic, though they may bear
date within the time to which that index re-
lates. But in this case, it may be referred ro
as an auxiliary memorandum made by Jimeno
himself of his action upon the petition of We»t.

West died before the claim was acted upon
by the United States Commissioners.

We have only to observe, that the fraudu-
lent attempts to enlarge the grant were made
after California had been ceded to the United
States; and though the proof of it is undenia-
ble, and was an attempt to defraud the United
States, that cannot take away from the wife
and children of West their claim to the paut,
which was made to him before California had
been transferred by Treaty.

We affirm the decree of the court below, confirm-
ing the grant to West for a league and a half.

Cited-67 U. S. (2 Black.), 406.

PIERRE BERTHOLD et al.,

JAMES Mcdonald and mary mcree.

(See S. C, 2S How.. 384-341.)

Jurisdiction to revievistnte decision as to XT. S.
HtU-^parol proof admissible, to sliow which of
two equities or titles, is the better.

Where the title to land, under oonflrmatioD by U.
S. Commlasloaers, was directly drawn In questioa
and the decision twlow rejected the title, tnifl court
has authority to re-examine the dedsion of the state
court.

Where titles In controversy are equities only,
no patent having: Issued to either clalinant on the
certificates ffranted hy the Board^as to the priority
between these equities, the state courts properly
received parol evidence reaching be|ilnd the oon-
flrmatlon.

The rule laid down by this court in the case of
Garland v. Wynn, '*that where several parties set
up oonfllctlnfiT claims to property, with which
a special tribunal may deal, as between one
party and the government, regardless of therlirhta
of others, the latter may come into the ordinary
courts of Justice, and litigate the conflicting'
claims," followed.

Where each party has a good title as against the
United States, in a contention between double
concessions which balanced each other, proof
can be heard, aud muRt of neoeslty be heard, to
determine the better right between the contending
parties.

Landes v. Brant, 10 How., 870, approved.

Argued Jan. 10, 1860. Decided Feb. 27, ISHO.

IN ERROR to the Supreme Court of the State
of Missouri.

This case arose upon a petition in the nature
of an action of ejectment at law, filed in the
St. Louis Land Court, by the plaintiffs in error,
to recover the possession of a tract of land near

Note.— Jitrindfctton of U. S. Supreme Court where
a federal question arises^ or whert fe drawn in ques-
tion. Statute, Treaty or CongtUutinn of U. 8. 9©©
note to Matthews v. Zane» 6 0. 8. (4 Crauch), 882 ;
note to MarUn v. Hunter, 14 U.S.,( 1 Wheat.), 804 :
and note to Williams v. Norrls, 25 U. S. (12 Wheat.),
117.

69 V. S.

1859.

Berthold v. McDonald.

884-341

81. Louis, containing eighty arp«nt«, equiva-
lent to sixty-eight acres. The trial resulted in
verdict and judgment for the defendants.

This judgment having been affirmed, on ap-
peal, by the Supreme Court of Missouri, the
plaintiff sued out this writ of error.

A further statement of the case appears in
the opinion of the court.

Mr. E. B. Washbume* for plaintiffs in
error:

1. The confirmation to Charles Gratiot on
Nov. 19. 1811, was final and conclusive, so
that neither the United States nor any person
deriving title from the United States sub-
sequently to that date, could rightfully claim
the land against such confirmation.

Act of Congress, March 8, 1807, sec. 41 ; 12
8to. St.. sec. 1060; Strother v. Lucas, 12 Pet.,
458; ChauUau v. EekTiorH, 2 How., 844; Les
Boi» V. Bramell, 4 How., 449 ;Landes v. Brant,
10 How.. 870.

The Supreme Court of Missouri, without
denying the general proposition as stated
above, attempts to evade its force by distin-
guishing this case from the cases heretofore
decided in this court.

They say that both confirmations were made
under one and the same Act of Congress.
This is a fallacious statement of the case.
Neither of the Acts of 1805, 1806, 1807. which
created the Boanl of Commissioners and regu
late its proceedings, confirms by its own force,
any Spanish title. The whole subject was re-
ferred, by the law, to the Commissioners;
their act worked the confirmation, and it was
their decision that the law declared to be final.
In the nszt place, the Supreme Court of Mis-
souri objects to the title of the plaintiffs, that
the Commissioners were not authorized to
erant a confirmation under the 2d section of the
Act of 1807, when there was. as in the present
case, an adverse claimant of the land.

The answer to this is two-fold :

First. The claim of Gratiot is not confined
to any particular section of the law. Granting
that the Commissioners ought not to have given
a confirmation under the !^ section of the Act
of 1807, still the party has obtained no more
than his just rights.

Second. The 2d section of the Act of 1807,
is merely directory to the Commissioners.

Burgess v. Gh^y, 15 Mo.. 220; 16 How., 48.

That section imposed no limitation on the
jurisdiction of the Commissioners to be en-
forced by anv other tribunal, but simply fur-
nished a rule of action. There \a no court
that can correct their errors, if any.

LandesY, Brant, 10 How., 870; Morehouse v.
PItdps, 21 How.. 294.

The doctrine of relation does not apply to
this case. That doctrine, founded in mere
fiction for the advancement of justice, is ap-
plied only to effectuate acts and consequences
between the parties, and is never to be used
to destroy estates, or to work a prejudice to
strangers.

Butler V. Baker, 3 Co., 29; 77umpson v.
Leach, 8 Lev., 284; Jackson v. Bard, 4 Johns.,
230.

2. The claim and confirmation in the name
of Jeannette,who was dead at the time, are nul-
lities, and cannot, even if otherwise valid, stand
in the way of the confirmation to Gratiot. The
See 22 How.

court below disposed of this point by a simple
reference to a prior decision of the same court,
in Mereier v. Letcher, 22 Mo., 66. The case
referred to will be found to be this: Charles
Mereier was proprietor of a tract of land, un-
der an imperfect Spanish title. Mereier died
Jn Spanish times, and Courtois married his
widow.

Courtois claimed the land in his own names,
as representaive of Mereier, and filed with the
Commissioners the evidences of Mercier's title.
The Commissioners confirmed the land "to
Charles Mereier." The court decided that
Courtois, who made the claim, took nothing
by this confirmation; and that the heirs olf
Mereier, who made no claim, and who, by the
force of the Act of Congress, were barred of
all right in the land two years before the con-
firmation, took title from it. Both branches of
this decision seem it to very questionable.

With tlie former branch, denying the title
of Courtois, we have here no concern.

The counsel then reviewed this case at con-
siderable length, criticising and pointing out
differences between it and the case at bar.

8. There are no equities appearing in the
case that can defeat a recovery by the plaintiffs
in the present action, or deprive them of the
right to hold the land under the confirmation
to their ancestor.

The stale of the pleading was such that under
the established rule of practice in Missouri, a
title merely equitable could not be considered
at all.

In Burgess v. Ch-ay, 16 How., 48, this court
inaccuratelv stated the present practice in the
State of Missouri.

8eeMaffuire v. Vice, 20 Mo., 429; Conran
V. SeOew, 28 Mo., 820; Rev. Stat. Mo., 1826.
1885, 1845.

Messrs. K. Blair and H. R. Gamble, for

defendants in error:

The defendants insist that the following
positions are sustained by the evidence and
law of the case :

1. The objection to the confirmation in the
name of Jeannette. on the ground that she was
dead when the claim was filed, is not sustained
by the evidence, and if it had been, is not a
valid objection in law.

Mereier y. Letcher, 22 Mo., 66.

In this case, the dispute is between the par-
ties holding equitable titles with the legal title
outstanding in the United States, and is to be
determined in favor of the party having the
superior equity.

Bagndl v. Broderick 18 Pet., 449; Wileox v.
Jackson AS Pet., 516.

3. The facts in evidence show that if the two
confirmations cover the same land, the superior
equity is in the defendants.

4. The reliance of the plaintiffs on the fact
that their confirmation is one day older than
that of the defendants, is not warranted by any
decision of this court, or by any principle of
law, and arises from a mere misapprehension
of the language found in the opinion in Landes
V. Brant, 10 How., 872. No such case as the
present, has ever been before this court.

Strother v. Lucas, 6 Pet., 768; Strother v.
Lucas, 12 Pet.. 410; Chouteau v. Eckhart,
2 How., 845; Les Bois v. Bramell, 4 How.,
449; Bissell v. Penrose, 8 How., 830. None

819

834-341

BuFRBias Court of thb Unitbd 8tat]B6.

Dbc. Tbhm,

of these decisions apply to this case, where
there are two confirmations by the same
Board on consecutive days.

5. If the two confirmations are equal as rec-
ognitions of the two original titles, then they are
to be laid out of consideration, and the parties
are to litigate upon their oriffinal titles.

Garmichael v. Brialer, 8 mart. , 727 ; San-
chez Y. Oomalea, 11 Mart., 212. In such litiga-
tion the defendants must succeed.

6. The doctrine of relation as explained and
applied in Landes v. Brant, refers each of
the confirmations to the time of filing the no-
tice and in this case, the notice in the name of
Jeannette was filed first, and the confirmation
in her name becomes the elder bv relation.

7. The confirmation for Gratio't. if it in fact
covers the land confirmed in the name of Jean-
nette, is void for want of jurisdiction in the Com
missioners, because the land was claimed and
possessed by Jeannette, under the Spanish Gov-
ernment.

2 Stat. U. S., 440, sec. 2.

Certainly it was void, as against her and her
representatives claiming the land, according
to law.

8. The confirmation, when located, does not
cover the land in controversy.

Until surveyed, it attaches to no land.

WmI v. Cochran, 17 How.. 416.

The iudffment of the Supreme Court of Mis-
souri should be affirmed, because, «

1st. If the confirmations are valid, the title
of Jeannette is the elder title by relation to her
claim.

Landesv, Brant, 10 How., 878; Orowley v.
Wallace, 12 Mo., 146.

2d. Whether the confirmations are valid or
not, and whether Jeannette's is the elder title or
not, it is the equitable title, and must prevail
against Gratiot's representatives who have not
the legal title.

We8t V. Cochran, 58 U. S. (17 How.), 405.

8d. The confirmation to Gratiot is void, the
Board having autboritv only to confirm titles
of claimants to *' lands not claimed by any
other persons."

2d sec. Act of 18U7. 2 Stat.. 440.

4th. Jeannette's representatives have a com-
plete title under the Act of June 18, 1812.

QuiUvrd v. Stoddard, 16 How., 494.

Mr. Juftiee Catron delivered the opinion
of the court:

The Board of Commissioners, sitting at St.
Louis to examine claims to lands, acconling to
the Act of March 8d, 1807 (2 Stat, at L., 440),
confirmed to Chas. Gratiot, assignee of Jean-
nette Flore, two arpents in front, by forty back,
lyin^ in the Prairie des Noyers, near to St.
Louis. This common field lot had been desig-
nated by survey, and was well known. The
confirmation was made November 19th. 1811.

On the next day (Nov. 20th, 1811) the Board
also confirmed the same land to Jeannette, a
free negro woman. Patent certificates issued
to Gratiot and Jeannette. respectively, dated
the same day, 20lh November, 1811. Jean
nette died about 1808, leaving as her heir a
child named Susan Jeannette, who died about
1840.

Gratiot got a deed for the land from a differ-
ent person , named Florence Flore, who conveyed

820

in the nama of Jeannette Flore. This deed
was made in 1805, and filed by Gratiot with
the Recorder, and on which deed his confirma-
tion by the board was founded. Jeannette had
occupied the land for many years before her
death. Florence Flore had never occupied it;
had no claim to it, at any time; and conveyed
in ignorance of what land her deed covered, ia
all probability. Gratiot died in 1817, leaving a
widow and children. Neither he nor his heirs
pretended to have any claim to the premiBes
until recently, before this suit was brought by
the heirs.

McDonald and Mary McRee, the defendants,
claim under Jeannette. who got the second con-
firmation. This suit was instituted in the land
court at St. Louis by petition, in 1854, under
the new code of procedure of Missouri, which
confounds all distinction between law and
equity, and combines both remedies in the
same action. The petition was answered, and
a trial had on the merits, before the court and
a jury.

The court, on motion of the defendants, in-
structed the jury as follows:

"If the jury find, from the evidence, that the
tract of land confirmed to Jeannette by the
Board of Commissioners includes the land in
controversy, and is the same hind which was
surveyed for Jeannette by the authority of the
Spanish Government; Uiat said Jeannette, and
those actmg for or under her, were Uie onW
persons who inhabited, cultivatied, or ponessea
the said tract, prior to the 20th of Diecember,
1808; that the person who executed the deed
in the name of Jeannette Flore, and filed by
Charles Gratiot with the Recorder of land titles
as one of the evidences of his claim, is not the
person for whom the survey of said tract of
land was so made, but another and a different
person, and that she cultivated and possessed,
prior to the 20th of December, 1808, another
and different tract in the same common field,
surveyed for her. by authority of the Spanish
Government, in the year 17w, embracing no
part of the land in controversy, the Jury ought
to find for the defendants."

This instruction was excepted to, and a ver-
dict was found for the defendants.

The cause was brought to the Supreme Court
ef Missouri bv writ of error, where the judg-
ment of the land court was affirmed; and, to
revise this judgment, a writ of error was pros-
ecuted out of this court, under the 25th section
of the Judiciary Act.

As the title of Gratiot's heirs was directly
drawn in question by the fore^ing instruction,
and as the decision below giving the instruc-
tion, rejected the title, no doubt can exist in re-
^rd to the authority of this court to re-exam-
ine the decision of the state courts.

It was so determined in the case of LyUe et
al. V. Arkansas, 22 How., 198, decided here at
this term.

The titles in controversy are equities only,

no patent having issued to either claimant on

the certificates granted by the Board. 10 How.,

I 274. With these equitiec}, the courts of Mis

souri were dealing on parol evidence, reaching

behind the confirmation; and the question is,

had they the power to do so.

i The rule laid down by this court in the case

iof Garland v. Wynn, 20 How.. 8, is, "that

68 U. S

1559.

United States t. Galbraith.

89-96

where seyeral parties set up conflicting claims
to property, with which a special tribunal may
deal, as between one party and the Govern-
ment, regardless of the rights of others, the lat-
ter may come into the ordinary courts of jus-
tice, and litigate the conflicting claims." The
Board of Commissioners was a special tribunal,
within the rule.

The principle was applied in the case of
LytU ▼. ArkansM, cited above.

In these cases, and in several others, the con-
test was between claimants under occupant
laws, giving a preference of entry to actual set-
tlers; and where an applicant obtained the pref-
erence, and was allowed to enter the land on
producing false aflldavits, by which he imposed
on the Raster and Receiver, to the prejudice
of another 8 right.

In this instance before us, each of the parties
claimed as occupants for ten consecutive years
before the 20th of December, 1803. Gratiot
and Jeanette both proved that the latter had
occupied as required, but Gratiot imposed on the
Boanl by his false deed of assignment for the
lot obtained by him from Florence Flore, whose
nanae was untruly signed JeannetU Flore; and
by reason of this imposition, he obtained confir-
mation and a patent certificate, which his heirs
make the foundation of their suit.

Each party Here has a good title, as against the
United States, the Act of 1807 (2 Stat, at L. , 440),
declaring that a confirmation of the Board shall
be conclusive against the government.

As both claims were filea in proper time, and
the confirmations were had in due time, the
equities are equal, and balance each other, so
far as they depend on the confirmations alone;
and the question is, can the ordinary courts of
justice go behind the right established by the
record confirming Gratiot's claim. To do this,
proof must be heard impeaching his vrima fa-
ds title, and which proof existed when the
claim was filed with the Recorder and acted on
by the Board. In other words, could the state
courts go behind Gratiot's confirmation, and
on evidence, compare his equity with that of
Jeannette, and adjudge who Uie true owner was.

In the case of Barbarie v. Eslava, 9 How.,
421, this court came to the conclusion (although
it is not distinctly expressed), that in a conten-
tion between double concessions, which bal-
anced each other, proof could be heard, and
must of necessity be heard, to determine the
better right between the contending parlies.

In the cases of Chouteau v. EckMtrt, 2 How.,
345, and Le$ Bois v. BrameU, 4 How., 449,
it was held that the grant made by the Act of
1812, of the village commons of St. Charles and
St. Louis, and of village lots, to possessors,
gave a title in fee; and that a claimant, under
a Spanish concession subsequentlv confirmed,
could net go behind the Act of dongress, and
overthrow the legal title it conferred ; and this,
for the plain reason that neither Chouteau nor
Les Bois had any title, when the Act of 1812 (2
Stat, at L., 728) was passed, that could be as-
serted in a court of justice; and as the political
power from which they alone could take title
had cut them off, to that power they must look
for redress of the injury, if anv existed.

To conflicts of title of the foregoing descrip-
tion, the principles asserted in the case of Lan-
der V. Brant, 10 How., 870, apply.

Hee 22 IIow, U. S., Boos 16.

We have no doubt of the earreetness of the de-
cision of the Supreme Court of Missouri in this
cause, and order its judgment to be affirmed.

THE UNITED STATES, AppU.,

JAMES D. GALBRAITH, JOHN SINE,
DAVID T. BAGLEY and RICHARD H.
STANTON.

(See 8. C, 2& Ho^v., 89-96.)

Mexican grant — want of merits.

Where the doubtful character of the claim under
a Mexican irraat, and entire want of any merits
upon the testimony appears, the. decree of the
court below will be reversed, and the case remitted
for further evidence and examination.

Argued Feb. 20, 1860. Decided Mar. 12, 1860.

APPEAL from the District Court of the Unit-
ed States for the Northern District of Cali-
fornia.

The history of the case and a statement of
the facts, appear in the opinion of the court.

Mr. Black* AttyGen., and Messrs. Stan-
ton and Oillet, for appellants.

The brief filed by the Atty-CJen. after re-
viewing the circumstances of the case, stated
following objections to the grant:

1. That the genuineness of the original e^-
pediente is extremely doubtful. The probabil-
ities are, as ten to one, that the papers of which
it consists were placed among the archives,
after the conquest of the country.

2. That the grant is, beyond all doubt, a for-
gery.

8. That the certificate of approval is also a
forgery. It must be observed that Moreno,
attesting secretary, was in full life, and within
the reach of process, but was not called to prove
either the execution of the grant or the signa-
ture of Pico to certificate. A witness was called
to prove his handwriting, and that witness, of
all men in the world, was Covamibias. If
Covarrubias had been a subscribing witness,
he would no doubt havo kept out of sight,
while Moreno testified to his handwriting.

The evidence of the possession is overwhelm-
inglv contradicted.

The following is an abstract of Mr. Oillet*s
argument:

1. Where a witness is proved to have know-
ingly sworn false in a cause, his whole evidence
must be rejected as unworthy of belief.

2. Where a party alters a written instrument
with the intention of changing its character and
effect, he destroys it, so that it can have no
le^l effect.

The effect of alterations of deeds has been
settled in the following cases:

In Henman v. Dickin;son, 5Bing., 188, it was
held, "Where a party sues an instrument
which, on the face of it, appears to have been
altered, it is for him to show that the alteration
has not been improperly made."

This the claimants did not attempt to show
in the case at bar.

See, also, Lewis v. Payn, 8 Cow., 11; Jackson
V. Malin, 15 Johns., 288, 297; Prewsty. Gfratz,
1 Pet. C. C, 864; Jackson v. OOtorn, 2 Wend.,
555, 559.

821

80-06

SUFUKMA COUBT OF THB UhITBD SVATIt.

Dec. Tabx^

The grant in this case is void, and cannot lay
the foundation of a recovery.

8. When a party knowingly, on a trial, in-
troduces fal»e evidence, it taints his whole case,
and every presumption is ag»inst him.

4. Where a written instrument has become
void upon alteration, other evidence to supply
its place cannot be admitted.

In the present case, the original grant being
excluded, all evidence tending to establish it
must be rejected. The claim cannot stand up-
on the petition and order to report, and the re-
port itself.

Sfse StUter*8, Nye*8, and Bamtf9 cases in 21
How.

5. Official acts, in granting land and furnish-
ing evidence of title on Sunday, are void.

See Story v. EUiot, 8 Cow. , 27.

6. When the facts upon which the claim rests
are inconsistent with one another, and out of
the ordinary course of events, the claim must be
rejected.

Mr. SL P, Heplmm and Robert J.
Brent, for the defendants in error:

After reviewing the evidence in the case, the
counsel said: defendants endeavored to dis-
credit the title by arguing that Padilla was not
procuring a grant at Monterey and Los Angeles
in May and June, 1S46. because he was pursued
for killing Americans on the 21st of June of
the same year, in Sonoma.

There are several answers to this:

1. Padilla was not found by Ford and his men
on the 2l8t of June, at Sonoma.

2. The petition of Deadly is the only paper
in the record which in any way fixes the
whereabouts of Padilla, and this is dated May
14, 1846, and between this and the 21st of June,
he could have been several times between Mon-
terey and Sonoma.

8. It is a mistake as alleged on the other side,
that the Bear War broke out in May, 1846. It
is further objected that Pico, on the 20th of
May, made an order of reference to the prefect
for a report, when the certificate of Castro,
which accompanied the petition, showed that
the land was vacant, and that the report was,
therefore, unnecessary. These irregularities are
to be found in nearly all the espedientes. They
were drawn up by the secretaries, who followed
a certain routine, without regard to the facts.
It is not the business of the claimants to show
that the archives are consistent. It is the bus-
iness of the government to show that they are
fraudulent.

It is also objected that the date of the ^nmt
has been altered from June 12, 1846, toTeb.
12, 1846.

The motive of this is not easy to understand.
The Calif omians are a simple, ignorant people.
The Supreme Court of the State told them
that their titles would not support an action,
either for the possession or the property; the
squatters, who knew Spanish, kindly inter-
preted the judgment of the court; it merely
took the land from the Californians and gave
it to them, the squatters.

The rule on the subject of alterations, is this:
where an estate which may exist without deed
(as a fee simple in land) is conveyed by deed,
tiien the alteration, even though material and
fraudulent, destroys the deed, but not the es-
tate.

822

There are many cases to this effect, but a;
very strong one is the case of Lewis v. Paifn,,
8 Cow., 71.

See, also, Jackmn v. ChnUd, 7 Wend., 864;
Hatch V. Hatch, 9 Mass.. 807.

Herriek v. Malin, 22 Wend.. 891, decides that
no subsequent alteration of a deed by the
grantee, in a material or immaterial point, will
avoid the deed, where the controveisy relates
to a title to land, and the title once v»ted un-
der the deed in the grantee. In other words,
the title once vest^ will sot revert by the
alteration, cancellation, or destruction of lie
muniment of title, whatever may be the law •!
defense against the recovery on a personal C09»-
tract.

See Prest. Ab«., 108; 2 H. Bl., 268; Bull. N.
P., 267.

Applying this principle to the facts of this
case, it will be seen that the alteration of the
month of the grant, from June to Februar)\
1846, must have been made in the original grant
after it was recorded by the Mexican auUiori-
ties, because there is no such alteration in the
copy certified from the Surveyor-GteneraFs of-
fice.

The original grant, then, has this manifest al-
teration. If done for a fraudulent purpose, it
is clearly immaterial in a point of law, and the .
fraud could be easily detected, bv reference to
the record of the grant, and the date of the pe-
tition and antecedent documents.

There is no evidence to show by whom or
when the date was altered.

As to the charge that this grant is suspicious
because made shortly before the change of
flags, see Executive Documents. 1846-1847, VoL
IIL, doc. 10, pages 99 to 106. These documents
show when the war did break out; that Fre-
mont did not come over with a hostile force or
hostile intention; that Castro undertook to cut
him off, because he was afraid of just such a
revolution, got up by foreigners, as had placed
himself in power.

The Californian ^vemment had not a hint
of war with the United States, or of the pros-
pect of it, until they received notice of the oc-
cupation of Monterey.

Mr. Juitiee Nelson delivered the opinion of
the court:

This is an appeal from the District Court of
the United States for the Northern District of
California.

The appellees, who derived their title from
Juan N. Padilla, the original grantee, pre-
sented their claim before Ui^ Board of Land
Commissioners in 1852, for five square leagues
of land known by the name of Bolsa de TmnaUs,
situate in the Oounty of Sonoma, California.
The Board, after hearing the proofs, decreed in
favor of the claim, which, on appeal to the
district judge, was afllrmed.

The documentary evidence of the title in-
cludes a petition to the Governor for the track,
dated at Monter^, May 14th, 1846. accom-
panied with a certmcate of Manuel Castro, pre-
fect, that the land was vacant and grantable,
dated same place, 10th same month; a marginal
reference for information, by the GJovemor, Pio
Pico, dated Los Angeles, 20th May, 1846; a
note of concession, duted same place, 12th
June, 1846; and a formal title, dated same time

63 U. S.

18S9.

Bank of Pitt8bubgh v. Xeal.

96-111

and place, both signed by the Governor, and J.
M. Moreno, Secretary ad interim.

Proof was given of the signatures of the Gov-
ernor and Secretary, and that these papers were
found among the Mexican archives, which had
been transferred to the custody of the Surveyor-
General of the United States for California.

The original grant of the formal title to the
CTantee was given in evidence by the claimants,
dated Los Angeles, 13th February. 1846; also,
a certificate of the Governor and Secretary, of
the approval on the 12th June by the Depart-
mental Assembly, dated 14th June, 1846.

Some attempt was made to prove possession
and occupation by Padilla before and since the
date of the grant, which were denied by the
Gk>vernment. The clear weight of the proof
in the case i& against any possession or occupa-
tion. The two witnesses in support of it, aside
from Padilla, clearly confounded the possession
of the ranch of Padilla, called the BobUvr de
la J/iseria.wiih that of the Bolsade TomaUs,bolh
of which are in the same section of country.
Padilla states that he had possession of the land
in 1844; built on it in that year; that he culti-
vated the land, and had cattle on it from that
time until he sold it to Molena and Berrejresa,
ID the latter part of the jrear 1848, or begming
of the year 1819. In this he is expressly con-
tradicted by some half a dozen witnesses, some
of whom cannot be mistaken as to the facts.
It appears, from the evidence, that Padilla, at
the breaking out of the disturbances in the
early part of 1^446, adhered to the Mexican Qov-
ernment, and was charged with having been
concerned in killing some Americans in the
fore part of that year; was pursued by an Amer-
ican force, and fled from that part of the
country, and did not return until after the war.
See, also, the testimony of Padilla in the case
of the claim of Josefa de Haro and others, No.
101, before the Board of Commissioners; and
see his grant of Boblar de la Mineria, ^5th No-
vember, 1845.

It is admitted that the original grant of the
title in form, which was in the hands of the
claiimants, has been altered so as to bear date
the 12th February, instead of the 12th June,
1846. No explanation was given of the altera-
tion, though it was apparent on the face of the
paper.

The genuineness of the signature of the Gov-
ernor, Pio Pico, to the certificate of the ap-
proval of the Departmental Assembly, was
doubted by the Board of Commissioners.

The Board say, after alluding to the altera-
tion of the date of the grant, ** there are many
things connected with the claim which, under
t he conclusion at which the commission has ar-
rived, were not altogether satisfactorv. The
time when the grant was made, only a few days
before the Americans took possession of the
cituntry; the evident and palpable attempt to
alter the date so as to make it appear several
months anterior to the time when it was is-
sued; and the manifest want of similarity in
the signatures of Pio Pico to the papers of
approval, with the usual mode of signing his
name, are circumstances which greatly de-
tract from the good faith of the claim. The
evidence, however, they say. makesouta pnma
fack case, which, in the absence of any rebut-

bce 22 How.

ting testimony, entitles the petitioners to a de-
ciee of confirmation."

The court is of opinion that, in consideration
of the doubtful character of the claim, and en-
tire want of any merits upon the testimony,
the decree of the court belato should be revereed,
and the ease remitted for further evidence and
examination,

8. C.-97 U. 8. (2 Black.), 894.

Clted-»7 U. 8. (2 Black.), 401 ; W U. 8., 376.:

THE BANK OP PITTSBURGH, Pflf. in Eh-.,

JOHN 8. NEAL and REUBEN E. NEAL.

(See 8. C, 22 How., 96-111.)

Agents holding blank bUl or note, may fill up
blanks — bona fide hdder may recover on biU or
note, invalid between original parties — "second
of exchange" — either set may be presented —
where both sets are accepted, both maybe recor-
ered on — which of two innocent parties must
suffer.

Where a party to a negotiable Instrument in-
trusts It to toe custody of another, with blanks not
filled up. such negrotiable instrument carries on its
face an implied authority to fill up the blanks and
perfect the instrument.

A bona Me holder of a negotiable instrument, for
a valuable consideration, without notice of the
facts which impeach its validity between the ante-
cedent parties, if he takes it before the same be-
comes due, holds the title unaffected by these facts
and may recover thereon, althousrh, as between the
antecedent parties, the transaction may be without
any legal validity.

The effect of the words, "second of exchange,
first unpaid," which appear on the face of the bills
is a question of law and not of fact, for the Jury.

Either of two sets of bills of exchange may be
presented for acceptance, and If not accepted, a
right of action presently arises, upon due notice,
against all the antecedent parties to the bill, without
any others of the set being presented.

If either of the set be presented, and Is accepted,
the indorsee may properly negotiate the bill, and
a bona ftde holder for value, without notice, may
acquire a good title.

when two bills were perfected, filled up, and
negotiated, by the correspondent of the defend-
ants, to whom the blank acceptances had been in-
trusted as a single bill of exchange ; for the acts of
their correspondent, in that behalf, the defendants
are responsible to a Imna /Idt holder for value,
without notice that the acts were performed with-
out authority.

If the defendant himself had improvldently ac-
cepted two bills for the same debt, he is liable to pay
both, in the hands of innocent holders for value.

Where one of two innocent parties must suffer,
through the fraud or negligence of a third party,
the loss shall fall upon him who gave the credit.

Argued Mar, i, 1860. Decided May IS, 1860.

IN ERROR to the Circuit Court of the Unitwd
States for the District of Indiana.
This was an action of assumpsit brought in
the court below, by the plaintiff in error, against
the defendants in error, as acceptors or two
bills of exchange, one for $1,350, dated at Pitts-
burgh, August l,lb57,payab]e four months after

^cm.—NeQoiiahle paper ex€4yuted in blank. Blanks
filled in neg*}tiaiM paper. Rights of bona fide
futlder.

The caseof Kussell v. Langstaffe, Doug., 514. Lord
Mansfield said: " The indorsement on a blank note
is a letter of credit for an indefinite sum. The de-
fendant said, ' Trust Galley to any amount and I

828

96-111

SUFBSliB GOUBT OF THB UnITBD STATB8.

DbC. TSBMp

date; the other for $3,168. dated at Pittsburgh
August 18, 1857, payable four monthe after
date.

Both bills were drawn by L. O. Reynolds &
Son, were payable to the order of L. O. Rey-
nolds, and were indorsed and negotiated by him
to the plaintiff in error.

The court below entered iudgment, on de-
murrer, in favor of the defendants, where-
upon the plaintiff sued out this writ of error.

A very full statement appears in the opinion
of the court.

Messrs. £• M. Stanton and Charles E.
Walker, for plaintiff in error:

The acceptance of the bills held by the Bank
for value, binds the acceptors. Whether the
bills held by the Bank were seconds or any
other number in any real or imaginary series of
bills, they were accepted, and the acceptors
bound themselves thereby to pay the holder
the sum therein specifieci. Ii the acceptor
meant to be bound only on one of the set, he
should have accepted that one. The holder
was not bound to make any inquiry, or take
any notice of the others.

16 Pet., 205; Chit. Bills, 165; Hbldswarih v.
Hunter, 10 B. & C, 444; Story, B., sec. 326;
Byles, Bills, 293, 294.

II. The words "second of exchange, first
unpaid " were directions given by the drawer
to the acceptors, to notify them of the series
and put the acceptors on their guard as to the
extent of acceptance. But their own accept-
ance constitutes the contract of the acceptors,
and by it they bound themselves to pay the
holder of that identical paper the sum specified
therein.

W§U8y. Whitehead, 15 Wend., 627; Dowries
v. Church, ISPeJ., 205.

** The bona fide holder of any one of the set,
if accepted, might recover the amount of the
acceptor. *'

Sto. Bills, sec. 226; Byles, Bills. 310; Chit.
m\B,\^b\Holdiiu>orihv, Hunter, 10 B. & C. 444.

III. There were no firsts of the bills held by

the Bank of Pittsburgh, ^he agent to whom
they were delivered In blank imde a distinct
bill of each blank; and each being accepted,
the acceptors are chargeable to any bona fide
holder into whose possession they might come.

See Chit. Bills, 11th Amer. from 9th London
ed, marg. pp. 155. 156: Byles, Bills, marg. pp.
810. 811; Story, Bills, sec. 226; see, also. Hold^-
teorth V. Hunter, 10 B. & C, 444; Welle v.
Whitehead, 15 Wend., 527; Downes d Co, v.
Church, 18 Pet., 205.

If the defendants accepted the bills as filled
up not to correspond, and delivered them to
the payee so accepted, to be put in circulation,
and he circulated, the different parts to different
persons, for value, before due, 'tis the same as
if the defendants themselves had circulated
them. They are to be taken to have accepted
the bills after the filling up, and are not per-
mitted to show the contrary, as against &ma
fide holders.

I refer to Montague v. PerHne, 22 Eng. L.
& Eq., 516; HaUifax v. Lyle, 8 Exch.. 446;
8chultz V. Atsley, 2 Bing. N. C, 544: Reported
29 Eng. Com. Law, 414; RusseU v. Langetaffe,
2 Doug., 514; Violett v. Patton, 5 Cranch. 142;
Putnam v. Sullivan. 4 Mass., 45; Byles, Bills,
marg. p. 108; Chit. Bills, same edition as above,
pp. 29 and 214; Sto. Prom. K.. sec. 122; and
Holdsworth v. Hunter, above cited; 1 Greenl.
Ev., sec. 207; TVevivian v. Lawrence, 6 Mod.,
256.

But it is alleged that the plaintiff was guilty
of negligence in not making inquiry for the
first parts of said bill, and that such inquiry
would have elicited the facts in the case; but
mere negligence is not sufficient to defeat the
title of the holder of commercial paper.

See Chit. Bills, edition as above, p. 256: 1
Smith. L. C. pp. 512-^24; Goodmany. HarreyA
Adol.&E., 870; 81 Eng. Com. Law,212;f7ifA^v.
Rich, 10 Ad. & E. 784: 2 Greenl. Ev., sec. 63«.

If, however, the bills sued on are the de-
fendants* separate acceptances, there can be
no question of negligence arising in the case ;

will be his seourity.* It does not lie in hln mouth,
to say the itidorBements wore not regular."

In this case the defendant had indorsed his name
on the back of five copperplate checks, made in
form of promissory notes, but blank a8 to times of
payment, sums or dates, and Galley, the holder, had
nlled them up as his own notes with different sums,
dates, and times of payment, and the indorser was
held bound to the plaintiff who had discounted
them. This seems to be a leading case, and has
been Quoted andjf ollowed as a precedent, applylngr
equally to maker, indorser, acceptor and drawer.
Usher v. Dauncoy, 4 Camp., »7 ; Bulkley v. Butler,
2 Barn. & Cress., 4£ilb : Powell v. Duff, 8 Camp., 182 ;
Hchiiltz V. Astley, 29 Rng. C. L., 414 ; Mahone v.
Central Bank, 17 Qa., Ill ; FuUerton v. Sturgls, 4
Ohio. N. S., 629: Bank of Commonwealth v. Curry,
2 Dana. 142 ; Bank of Limestone v. Perrlck, 5 T. B.
Mon., 25; Jones v. Shelbyville Ins. Co., 1 Met., 58 ;
Mich. Ins. Co. V. Leavenworth, 30 Vt.. 11 ; Andros-
cojTffin Bank v. Kimball, 10 Cush., 378; Nlchol v.
Btite, 10 Yerif., 429; Ives v. Farmers* Bank, 2 Allen,
230.

Where one person intrusts to the custody of an-
other a negotiable instrument, with blanks not
filled up such negotiable instrument carries on its
face an implied authority to All up the blanks and
perfect the instrument; ana as between such per-
son and Innocent third parties the person to whom
it was so Intrusted must be deemed the agent of
the party who.committed it to his custody. Bank
of Pittsourgh V. Neal, isupra ; Davidson v. Lanier.
71U. S. (4 Wall.),457.

When? papers indorsed in blank were left with a
clerk with authority to use them for certain pur-

824

poses and they were fraudulently obtained from
him and used differently, the indorser Is liable.
Putnam y. Sullivan, 4 Mass., 45; 1 Parson on N. Sl
B.. 114.

Where the agent or person to whom paper is in-
trusted, which is complete except that the sum is
left blank. Alls in a sum, the parties who signed, ac-
cepted or indorsed the same, would t>e bound to pay
any sum, for which it might be filled up, whether
in excess of the sum for which he autborizcMl it to
be filled or not to a hnna fide holder without notice
of any limitation upon tlie authority of the perfson
having it, and it is immaterial that the bolder
knew It was signed, accepted or indorsed In blank
unless he knew of its bclnsr fraudulently filled up.
Mich. Bank v. Bldrcd. 70 U. R. (9 Wall.), 514 ; Violett
v. Patton, 5 Cranch, 142; Orrick v. Colston. 7 Grat.,
189 ; Fullerton v. Sturgis, 4 Ohio, St.. — ; Uedlick v.
Doll, 54 N. Y., 236 ; Huntingdon v. Branch Bank, 3
AlR., 186.

If the date is left blank, and an improper date is
inserted by a holder, an indorser will be oound ton
bona fidr, holder without notice. Page v. Morrel, 3
Abb. C't of App., Dec, 433.

Where the holder of a note In blank filled it up
and negotiated it for a larger amount than was in-
dicated by the marginal figures, it was held this
did not vitiate the note, though he also altered tbo
figures. Schryver v. Hawk(»8. 22 Ohio St., .308.

Where paper was drawn in the form of a blank
bill of exchange, and was filled up as a negotiable
note, by the party for whom it was drawn, the par-
ty who signed the blank was held liable. Luellen
V. Hare, 32 Ind., 211.

Where the indorsee inserted a provision in a note

68 U. S.

1859.

Bank of PrrrBBURGH y. Nsal.

-Ill

and they are the defendants' acceptances or
they are entire forgeries. But the defendants
do not pretend that their signatures are forg-
eries, and nothing short of this will be a de-
fense for them as against the bona fide hold-
ers. If forgeries, the forgery was committed
by Reynolds, to defraud the defendants, not
the plaintiffs, because they delivered . him a
blank paper, but with their genuine signature
thereon, as acceptors of bills of exchange, and
thereby enabled him to fill up the instruments
in a different manner than that which they di-
rected. But in filling up he is their general
agent, and the filling up is to be taken to be
done by the defendants themselves, when the
paper gets into the hands of holders in good
faith, for value before due, and they are not
permitted to shield themselves from responsi-
bility by saving that the bill is a forgery.

See Byles, Bills, marg. pp. 108. 156 and 266;
Chit. Bills, ed. above, marg. pp. 261 and 688;
Marrimn v. Buchanan, 6 C. & r., 25 Eng. Com.
Law, 258; Toung v. Grote, 4Bing., 853, above;
Farr v. Ward, 2 Mees & W., 844; Story, Bills,
sees. 118, 441; Edw. Bills, p. 14.

Meters, R. W, Thompson and W« M.
Dunn, for defendants in error:

We feel confident that the well established
rules of law will in this case charge the plain^
iff with constructive notice, and withhold from
her the benefit of the estoppel contended for,
and as the argument would be substantially the
same, whether the act complained of was a
forgery as against one holding the notice, or
simply a fraud, we will not assume the task of
defining the true legal character of the act.
The general rule that a party executing a bill
or note in blank as to date, amount, or other-
wise, is responsible to a bona fide holder with-
out notice for any fraudulent use that may be
made of such blank by the person intrusted
with the paper, we of course aidmit. Such re-
sponsibility results from a principle of general
applicability in cases of agency over which the
principal is held responsible to the extent to

which he has accredited his a^ent. The doc-
trine of estoppel, when applied in such in-
stances, rests upon the same reason, and is in
effect the same thing. The party putting out
the instrument in blank, is estopped to say that
he did not originally execute it in the form in
which it finally appears, whenever an innocent
person, without any fault of his own, would
otherwise suffer.

We think, however, that the facts of this
case do bring the plaintiff within the opera-
tion or the reason of this principle. The state-
ment of the law laid down by the opposing
counsel, as to which of two innocent partners
must suffer by the fraud or negligence of a
third, is substantially correct; but it keeps too
much in the background one constituent prin-
ciple, that we think excludes the case in ques-
tion from its operation.

It is this: that the act of the party giving the
credit must be such as is reasonably calculated
to deceive — that the party claiming the protec-
tion of this principle must himself have acted
with reasonable circumspection, and must have
been subjected to the loss, notwithstanding the
use of such reasonable circumspection.

Baker v. Sterne, 25 Eng. L. & Eq., 502;
Piekard v. 8ear%, 6 Ad. & E., 469; 8. C, 83
Eng,, Com. L., 115.

La 2 Smith, L. C, 4 Am. ed.. Hare &
Wallace, 571, the editors, in speaking of the
fact that an acceptor is estopped to deny the
genuineness of the bill as originally drawn, say
that this estoppel *' is marked by much of the
naked severity of circumstance and application
which marked estoppels at common law." We
cannot, however, see any peculiarity that distin-
guishes this in principle from other cases of es-
toppel in pais, or why it should be said to be
marked with "naked severity." The drawee
is reasonably presumed to know the handwrit-
ing of the drawer, who is his immediate corre-
spondent. He should not pay the bill without
being satisfied that it is genuine. If he does
pay and the draft proves a forgery, he is guilty

making it payable at a certain bank, in spite of an
aif reement with the makers that it should not be
made payable at bank, it was h^id that the holder
could recover. Spitler v. James, 82 lQd.« 203.

A party who makes a blank acceptance or signs
his name on a blank paper and delivers it to anoth-
er person to be overwritten with a note, irlves an
implied authority to fill up the instrument ; and he
ifl liable thereon to the party receiving it honestly
and for value, thouglf nlled up for a larger amount
than was actually authorized and in a different
manner. Van Duzen v. Howe, 21 N. Y., S3l : Griggs
V. Howe, 31 Barb., 100; Young v. Ward, 21 111., m ;
Goodman v. Simonds, 61 U. S. (B. 15), 984.

The bolder may fill in the name of the payee
where it is leftjblank. He may fill in his own name,
or where it was delivered to a person who indorsed
it in blank, the holder may flU in the name of the
indorser in the body and then complete the in-
dorsement by fllUnsr it up to himself. Crutchley v.
Clarence, 2 Maule & 8., fiO; Brumel v. Enders, 18
Orat., 905; Crutchley v. Mann, 5 Taunt., 529 ; S. C, 1
Eng. C. L., 179 ; Nelson v. Cowing, 0 Hill, 336 ; Pindar
V. Barlow, 31 Vt., 539; Elliott v. Chesnut, 30 Md.,
562; Hardy v. Morton, 66 Barb., 533; Dinsmore v.
Duncan, 57 N. Y., 573; Atwood v. Oriffln, 2 Carr. &

While the bill or note is blank as to the payee, the
holder cannot sue upon It as bearer ; he must insert
his name as payee. Greenhow v. Boyle, 7 Blackf.,
56 ; Seay v. B'k of Tenn.. 8 Sneed, 558 ; Kees v. Cano-
cocheague Bank, 5 Rand., 326.

The following

$1,585.90. Brookust, September 20, 1858.

after date promise to pay to the

See aa How.

order of
at

-, Dec.23,

dollars

Value received. Geo. R. Ives

was delivered to Yale as a memorandum and not to
be used as a note. Yale filled it up as a note for
$1,585.90 payable to his own order at the Atlantic
Bank, New York, and indorsed it to plaintiff who
discounted it. It was held that all evidence as to any
agreement between the original parties was inad-
missible and the holder was entitled to recover.
Ives v. Farmers' Bank, 2 Allen, 236.

If a holder exceed his authority in filling up a
blank, he can have no benefit from it, oven to the
extent of his authority, and a holder who knows
when he takes such paper that the authority to fill
it up has been exceeded or departed from, cannot
recover. What charges the transferee with notice,
is a matter on which authorities differ. Wagner v.
Diedrlck, 60 Mo., 484 ; Van Duzer v. Howe. 21 N.Y.,
581 ; Putnam v. Sullivan, 4 Mass., 45 ; Davidson v.
Lanier, 71 U. 8. (4 WaU.), 456 ; Hatch v. Searles, 2
Sm. & Glf., 147 : Johnson v. Rlasdale, 1 8m. & M., 17 ;
Hemphill v. B'k of Ala., 6 Sm. & M., 44 ; Byles, p.
182 ; Chitty on Bills, p. 29; Orrick v. Colston, 7 Grat.,
189 ; Story on Bills, sec. 222 ; Parsons on N. & B., 109 ;
Edwards on Bills & Notes, 252, 253.

Where a person simply writes hia name upon a
piece of blank paper, with no intention that a con-
tract Phould be written over it, as for use In identi-
fying his signature, and a note is written or printed
over it by tibe person into whose handa it comes,
and the same is passed into the hands of third par-
ties, it has been held, there can be no recovery.
Caulkins v. Whisler, 29 Iowa, 495; Nance v. Lary, 5
Ala., ^0.

821^

96-111

SUFBBMB OOUST OF THB VjSfVtSD SVATBS.

Dbc. Tkrm,

of negligence, and for that reason the law will
not grant him recovery.

He should not accept without being satisfied
that the drawer is competent to draw, and that
his signature is sen nine. By the act of accept-
ing, he admits these things. Between a casual
purchaser in market of the bill and the drawer,
there is no privity. They are probably strangers
to each other, and in case of a foreign bill, resi-
dents of different States. Such purdiaser, then,
may reasonably act upon the faith of the admis-
sion implied in the acceptance; and as against
him, the acceptor should not be allowed to say
that the draft was forged. But this reason
would cease in cases where the holder is privy
to the fraud, or affected with notice of it, and
in such case there is no estoppel.

Bank of Commerce v. Union Bank, 8 N. Y.,
230. Such estoppel, then, falls plainly within
the ordinary principle of estoppels in pais, with-
out resorting to any supposed peculiarity of the
commercial law.

We submit, as a clear deduction from the au-
thorities, that if the officers of the Bank of Pitts-
burgh, in purchasing this paper, failed to use or-
dinary and reasonable prudence, and if the
paper as intrusted by the defendants to Rey-
nolds, was not in such condition or of such kind
as to enable Reynolds to practice the fraud, not-
withstanding the exercise of ordinary and rea-
sonable prudence by the plaintiff, then the de-
fendants are not concluded by their acceptance.

All the representations made by the defend-
ants, upon which plaintiff claims to have acted
and out of which she claims an estoppel arises,
are contained in the paper itself, it purports
to be one of a set only. Plaintiff claims we are
estopped to say it was not a single bill. It re-
fers on its face to another part. Plaintiff says
we are estopped to say there was another part.
It purports on its face to be payable condition-
ally. Plaintiff claims we are estopped to say
it was not payable absolutely.

The plaintiff's proposition, expressed in math-
ematical fashion, would lust amount to this:
that having represented a thing as a part, the de-
fendants are,therefore, estopi^ to deny that it
IS a whole

Holdsworth V. Hunter, 21 Eng. C. L., 110, is
cited but it gives no countenance to the propo-
sition. In Uiat case the bill was drawn at Cal-
cutta, bv McKenzie & Co., on James Hunter,
Jr., & Co., at London, payable to W Hunter &
Co., in three parts, James Hunter, Jr., was a
common member of the two firms, drawees and
payees, and therefore empowered to deal with the
bill in the double capacity of acceptor and in-
dorsee

It is urged, however, that the drawee should
accept but one part of a bill drawn in a set, and
that that part, when so accepted, becomes the
bill; that an^ third person seeing it has a right
to presume it to be the onljr accepted part, and
is justified in purchasing it without inquiring
after the other parts; that by accepting all the
parts, the drawee becomes liable as upon so
many different bills.

The following authorities are cited, as tend-
ing to establish this position: Chit. Bills, U
Am. from 9th London ed., 155, 156; By les, Bills,
mare. pp. 810, 811 ; Story, Bills, sec. 226; HMe-
worth V. Hunter, supra; WeUs v. Whitehead, 15
Wend., 527; Doumes v. Church, 18 Pet., 2Q5.

826

Each of the above textbooks contains a
dictum seeming to favor the proposition, but
neither of the three cases cited has any tendency
to sustain it. If these dicta in the text books
are to be understood as anything stronger than
mere recommendation, we submit that they
are unsustained by authority, that they are in-
consistent with the theory of this species of
commercial paper, and at variance with gen-
eral commercial usage.

Chitty savB: *'It is laid down that unless
the drawee has accepted another payment of a
bill, he may safely pay any part that is pre-
sented to him, and that a payment of that part
will annul the effect of the others. But that if
one of the parts has been accepted, the payment
of another unaccepted part will not lili^rate the
acceptor from liability to pay the holder of the
accepted part, and such acceptor may, therefore,
refuse to pay the bearer of the unaccepted part,
and may compel him, if he suggests that he has
lost the accepted part ; to find caution or bureties
against his liability to pay the accepted part."

We know of no authority in this country or
in England, sustaining this part of the dictum
above quoted, and we feel somewhat secure la
saying there is none.

Chitty deduces it as an inference from an un-
tenable legal proposition; Story, rejecting the
proposition, perpetuates the inference; Byles re-
peats it on the authority of Holdsworth v. Hun-
ier — an authority that condemns it; and all of
them put it as matter of recommcndtion and
caution, rather than peremptory law.

It seems to have been first advanced on the
supposed authority of Pardessus, and to have
acquired the support of no additional authority
since that time, except it may be unconsidered
repetition. Perhaps it may be in accordance
with commercial usage in France, or perhaps it
results from an error in not carefully adverting
to the distinctions recognized in that countrv.
between the rules and usages applicable to bills
drawn in sets, and singfe bills attending copies.

(Counsel then examined the theory and reason
of sets of exchange, citing Btorv on Bills, sec-
tion 66, and contended that the plaintiff's theory
would defeat this purpose.)

Perhaps the mostsatisfactory argument against
the proposition that the drawer is allowed to
accept but one part. is that the facts of commerce
are against it.

See 4 Bac. Abr., Merchant and Merchandise.
M., 685.

If, then, it can be recognized as a general
mercantile usuage to accept all the parts, the
plaintiff in this case cannot say that she had a
right to presume that this second part, which
she purchased, was the only accepted part, and
therefore itself a bill of exchange.

It remains to be inquired, whether enough
appeared upon the face of the bill to put her
upon notice as to the other part. The early
doctrine on this subject in England, seems to
have required mala fides.

Lawson v. Weston, 4 Esp., 56.

But in GiU v. CuMtt, 8 B. & C, 466, it was
held that if the holder took the bill under cir-
cumstances that ought to have excited the sus-
picion of a prudent and careful man, he could
not recover, if the party from whom he received
it had no title

OiU V. Cubitt was subsequently overruled in

68 U.S.

1859

Bakk of Pittsburoh v. Neal.

96-111

England, but the Americ&n authorities adopted
it^ principle. The question has not. so far as we
know, been in terms passed upon by this court.

See. however, Fbwler ▼. Branuy, 14 Pet.,
318; Cummins y. Mead, 6 Am. Law Jour., No.
1; 3 Kent, 81, 82; Gone y. Baldwin, 12 Pick..
545; S^fard y. Wyckoff, 4 Hill., 444; PringU
y. Phiuipe, 6 Sand., 157; Coffin y. Anderson, 4
Blackf., 408.

The plaintiff, therefore, is chargeable with
notice, if her officers neglected to make such
inquiries as a reasonable prudence would have
suggested.

Counsel then argued that the words "second
of exchange, first unpaid," were sulHcient to put
the plaintiff upon inquiry, citing Byles, Bills,
3 Am., from 6 London Ed., p. 489; Lang v.
Smyth, 7 Bmg., 284; Story, Bills, sees. 67. 226;
Bay. Bills, 20. Am., from 5 London ed., pp.
24, 147; Boyd v. Plum, 7 Wend., 309; Fowler
y. BranUy,UFet., 318.

Mr. Justice CliiFord delivered the opinion
of the court :

This is a writ of error to the Circuit Court of
the United States for the District of Indiana.
All of the questions presented in this case arise
upon the pleadings and the facts therein dis-
closed. It was an action of assumpsit, brought
by the plaintiff in error as the holder of two
certain bills of exchange, against the defend-
ants as the acceptors. An amendment to the
declaration was filed after the suit was com-
menced. As now exhibited in the transcript,
it contains four counts. Two of the counts
were drawn up on the respective bills of ex-
chan^, and are in the usual form of declaring
in suits, by the holder of a bill of exchange
against the acceptor. Those contained in the
amendment are special in form, setting forth
the circumstances under which the respective
bills of exchange were drawn, accepted and
negotiated, and averring that these acts were
subsequenty ratified by the defendants. To the
merits of the controversy the defendants plead-
ed the general issue, and filed seven special
pleas in bar of the action. Demurrers were
filed by the plaintiff to each of the special
pleas, which were duly Joined by the defend-
dants, and after the hearing, the court over-
ruled all the demurrers. Those filed to the
pleas responsive to the first and second counts
were overruled, upon the ground that the pleas
were sufficient, and constituted a good bar to
to the action ; but those filed to the fifth, sixth,
seventh and eighth pleas were overruled, upon
the ground that the third and fourth counts, to
which those pleas exclusively applied, were each
insufficient in law to maintain the action.
Whereupon, the plaintiff abiding his demur-
rers,the court directed that juderment be entered
for the defendants, and the plaintiff sued out
a writ of error, and removed the cause into this
court It being very properly admitted, by the
counsel of the defendants, that the first and
second counts of the declaration are in the
usual form, it is not necessary to determine the
question as to the sufficiency of the third and
fourth, and we are the less inclined to do so,
from the fact that the counsel on both sides
expressed the wish, at the argument, that the
decision of the cause might turn upon the ques-
tion, whether the plaintiff, on the facts dis-

8ee 22 How.

closed in the pleadings, was entitled to recover
against the defendants. That question is the
main one presented by the pleadings; and inas-
much as it might well have been tried under
the general issue, we think it quite unnecessary
to consider any of the incidental questions
which do not touch the merits of the contro-
versy. Special pleading in suits on bills of
exchange and promissory notes ought not to be
encouraged, except in case-*, where, bylaw, the
defense would otherwise be excluded or ren-
dered unavail ing. Full and clear statements of
the facts as disclosed in the pleadings, were pre-
sented to the court.at the argument, by the coun-
sel on both sides. They are substantially as fol-
lows: In June,1857, the defendants, residents of
Madison, in the State of Indiana, being desirous
of procuring a loan of money, made their certain
acceptances in writing of two blank bills of ex-
change, in sets of two parts to each bill, and
transmitted the four blanks, thus accepted, to
their correspondent, Lot O. Reynolds, then and
still residing at Pittsburgh, in the State of
Pennsylvania. Both sets of blanks were in the
form of printed blanks usually kept by mer-
chants for bills of exchange in double sets, ex-
cept that each of the four was made payable to
order of the correspondent to whom thej' were
sent, and was duly accepted on its face by the
defendants, in the name of their firm. They
were in blank as to the names of the drawers
and the address of the drawees, and as to date,
and amount, and time, and place of payment.
When the defendants forwarded the accept-
ances, they instructed their correspondent to
perfect them as bills of exchange, by procuring
the signatures of the requisite parties, as ac-
commodation drawers and indorsers, and to
fill up each with the appropriate datn, and
with sums not less than $1,500 nor more
than $3,000. payable at the longest period
practicable, and to sell and negotiate the bills
as perfected, for money, and remit the proceeds
to the defendants. Afterwards, in the mouth
of July, of the same year, the defendants, at
the request of the person to whom those accept-
ances were sent, made four other similar
acceptances, and delivered them to him, to be
sold and negotiated as bills of exchange, in
double sets for his own use, and with power to
retain and use the proceeds thereof for his own
benefit. They were in all repects the same, in
point of form, as the four acceptances first
named, and like those, each of the four parts
was made payable to the order of the person at
whose request they were given, and was duly
accepted by the defendants in the name of their
firm. When they delivered the sets last named,
they authorized the payee to perfect them as
bills of exchange, in two parts, in reasonable
amounts, and with reasonable dates. Eight
acceptances were thus delivered by the defend-
ants to the same person, corresponding in point
of form to four bills of exchange, but with
blanks for the names of the drawers and the
address of the drawees, and for the respective
amounts, dates and times and places of pay-
ment. Four contained, in the printed form of
the blanks, the words, *' first of exchange,
second unpaid ;" and the other four contained
in the corresponding form the words. " second
of exchange, first unpaid;" but in all other re-
8i>ects they were alike. All of the first class

887

96-111

Supreme Court of the United States.

Dec. Term,

were perfected by the correspondent as bills of
exchange of the first part, and were sold and
negotiated by him at certain other banks in the
City of Pittsburgh. He perfected them by pro-
curing L. O. Reynolds & Son to become the
drawers, addressed them to the defendants, in-
dorsed them himself in blank, and procured
another individual or firm to become the second
indorser. They were filled up by him for
sums varying from about |2,000 to $8,000,
with dates corresponding to the times when
there were negotiated, and were respectively
made payable in four months from date. Con-
trary to his instructions, he retained the pro-
ceeds of the one first negotiated, which he had
been directed to remit; and he also retained in
his possession, but without inquiry or com-
plaint on the part of the defendants, the other
four acceptances, constituting the second class.
On the 1st day of August, 1857^ he perfected
and filled up as a separate bill of exchange one
of the last named acceptances, and sold and
negotiated it to the plaintiff for his own use
and benefit. He also perfected and filled up,
on the eighteenth day of the same month,
another of the same class, in the same manner,
and for the same purpose, and on the same day
sold and negotiated it to the plaintiff. Both of
these last mentioned bills of exchange vary
from those of the first class, not only in dates
and amounts, but also as to time and place
of payment, and are in all respects single bills
of exchange. They were each received and
discounted by the plaintiff, without any knowl-
edge whatever that either had been perfected
ana filled up b^ the payee without any author-
ity, or of the circumstances under which they
had been intrusted to his care, unless the words,
''second of exchange, first unpaid," can be
held to have that import.

In all other respects, the bills must be viewed
precisely as they would be if they had been
perfected and filled up by the defendants, and
for two reasons, deducibie from the decisions
of this court.

First. 3ecause, where a party to a negotiable
instrument intrusts it to the custody of another
with blanks not filled up, whether it be for the

{mrpoee to accommodate the person to whom
t was intrusted, or to be used for his own
benefit, such negotiable instrument carries on
its face an implied authority to fill up the
blanks and perfect the instrument; and as be-
tween such party and innocent third parties,
the person to whom it was so intrusted must be
deemed the agent of the party who committed
such instrument to his custody — or, in other
words, it is the act of the principal, and he is
bound by it. Goodma/n, v. Simonds, 20 How.,
361 ; VioUtt V. PaUon, 5 Cranch, 142.

Second. Because a bona fids holder of a
negotiable instrument, for a yaluable consider-
ation, without notice of the facts which im-
I)each its validity between the antecedent par-
ties, if he takes it under an indorsement made
before the same becomes due, holds the title
unaffected by these facts, and may recover
thereon, although, as between the antecedent
parties, the transaction may be without any
legal validity. Swift v. I)/9on, 16 Pet., 15;
Ooodman v. Sinumdn, 20 How., 863.

Applying these principles, it is obvious that
the only question that arises on this branch of

the case is as to the effect of the words, ** sec-
ond of exchange, first unpaid," which appear
on the face of the bills. That question, under
the circumstances of this case, is a question of
law, and not of fact for the jury. Three de-
cisions of this court sustain that proposition;
and in view of that fact, we think it unneces-
sary to do more than refer to those decisions,
without further comment in its support. An-
drews y. Pimd et al., 18 Pet., 65; FovAer v.
BranUy. 14 Pet., 318; Goodman v. Simonds, 20
How., 366.

Another principle, firmly established by this
court, and closely allied to the question under
consideration, will serve very much to eluci-
date the present inquiry. In Dowries et al. ▼.
Church, 13 Pet., 207, this court held, that ei-
ther of the set of bills of exchange may be pre-
sented for acceptance, and if not accepted, that
a right of action presently arises, upon due no-
tice, a^inst all the antecedent parties to the
bill, without any others of the set being pre-
sented; for, say the court, it is by no means
necessary that all the parts should be presented
for acceptance before a right of action accrues
to the holder.

Now, if either of the set may be presented,
and when not accepted a ri^ht of action imme-
diately ensues, it is diflScult to see any reason
why, if upon presentation the bill is accepted,
it is not competent for the indorsee to nego-
tiate it in the market; and clearly, if the in-
dorsee may properly negotiate the bill, a bona
fide holder for value, without notice, may ac-
quire a good title. In this connection. Mr.
Chitty says, that " unless the drawee has ac-
cepted another part of a bill, he may safely-
pay any part that is presented to him. and that
a payment of that part will annul the effect of
the others; but if one of the parts has been ac-
cepted, the payment of another unaccepted
part will not liberate the acceptor from liability
to pay the holder of the accepted part, and
such acceptor may, therefore, refuse to pay the
bearer of the unaccepted part;" from which he
deduces the rule, that a drawee of a bill drawn
in sets should only accept one of the set. Chitty
on Bills (10 Am. ed., by Barb.), 155.

Mr. Byles savs: '* The drawee should accept
only one part, for if two ac^pted parts should
come into the hands of different holders, and
the acceptor should pay one, it is possible that
he may be obliged to pay the other part also;"
which could not be, unless it was competent
for the holder of a second part to negotiate it
in the market. Byles on Bills, p. 310.

Where the drawee accepted and indorsed
one part to a creditor, as a security, and after-
wards accepted and indorsed another part for
value to a third person, but subsequently sub-
stituted another security for the part first ac-
cepted, it was held, in Holdaworth x. HunUr,
10 Bam. & C. , 449. that, under these circum-
stances, the holder of the part secondly accepted
was entitled to recover on the bill ; and Lord
Tenterden and Baron Parke held that the ac-
ceptor would have been liable on the part
secondly accepted, even if the first part had
been indorsed and circulated unconditionally.

Jvdge Story says, in his work on bills of ex-
change, that the bona fide holder of any one of
the set, if accepted, may recover the amount
from the acceptor, who would not be bound to

U.S.

1850.

1n8ubai7CB Co. of Vallbt of Va. v. MobdzCai.

111-118

pay any other of the set which was held by
another person, although he might be the first
holder. Story on Bills, sec. 226.

No authority is cited, for the defendant, to
impair the force of those already referred to;
but it is not necessary to express any decided
opinion upon the point at the present time.
Suffice it to say, that in the absence of any au-
thority to the contrary, we are strongly inclined
to think that the correct rule lb stated by Mr.
Chitty, and that such is the general under-
standmg among mercantile men.

But another answer may be ^iven to the ar-
gument for the defendant, which is entirely
conclusive against it; and that is, that the bilts
described in the first and second counts were
not parts of sets of bills of exchange. They
were perfected, filled up and negotiated by
the correspondent of the defendants, to whom
the blank acceptances had been intrusted as
single bills of exchange; and for the acts of
their correspondent, in that behalf, the defend-
ants are responsible to a bona fide holder for
value, without notice that the acts were per-
formed without authority.

When the transaction is thus viewed, as it
must be in contemplation of law, it is clearly
brought within the operation of the same rule
as it would be if the defendant himself had im-
providently accepted two bills for the same
debt. In such cases, it is held, that the ac-
ceptor is liable to pay both, in the hands of
innocent holders for value. Davison v. Bob-
erUon, 8 Dow. P. C. 228.

Lord Eldon, said, in that case: " Here were
two bills for the same account, and supposed
to be for the same sums; the^ who were to pay
them had a right to complain that there were
two, and yet they were bound to pay both, in
the hands of bona fide holders, if accepted by
them or bv others for them, having authority
to accept.'^'

To suppose, in this case, that the words
"second of exchange, first unpaid," import
knowledge to the plaintiff that the bills were
drawn in sets, would be to give them an effect
contrary to the averments of the defendants'
pleas, as well as contrary to the admitted fact
that they were not so drawn; and for those
reasons the theory cannot be sustained.

In view of all the facts, as disclosed in the
pleadings, we think the case clearly falls within
the operation of the rule, generally applicable
in cases of agency, that where one of two inno-
cent parties must suffer, through the fraud or
negligence of a third party, the loss shall fall
upon him who gave the credit. FiUherberi v.
Mather, 1 Term., 16, per Buller; Androscoggin
Bank v. Kimball, 10 Cush.. 878; Montague v.
Perkins, 22 Eng. L. & Eq., 516.

Business men who place their signatures to
blanks, suitable for negotiable bills of exchange
or promissory notes, and intrust them to their
correspondents, to raise money at their discre-
tion ought to understand the operation and ef-
fect of this rule, and not to expect that courts
of justice will fail in such cases to give it due
application.

According to the views of this court, the de-
murrers to the several pleas filed to the first
and second counts of the declaration should
have been sustained. Having come to that
conclusion, it is unnecessary to examine the

See 22 How.

other propositions submitted on behalf of the
defendants.

The judgment of the circuit court is, therefore,
reversed, toith costs, and the cause remanded,
with directions to enter judgmerU for the plaint-
iff, as upon demurrer, on the first and second
counts of the decla/ration. \

Clted->6e n. B. (2 Wall.), Wl;n U. 8. (4 WaU.),
467 ; 76 U. 8. (9 Wall.), 560 ; 02 U. S., 381 : 94 U. 8.,
754 ; 101 n. 8., 831 ; 13 Am. Rep., 601-696 (54 N. 7., 288);
26 Am. Rep., 68 (123 Mass., 196): 82 Am. Rep., 744
(47 Wis., 661); 66 Ind., 98.

THE INSURANCE COMPANY OF THE
VALLEY OP VIRGINIA, Plffs, in Er.,

MOSES C. MORDECAI.

(See 8. C, 22 How.. 111-118.)

Marine insurance — total loss, lohat is — question
not made in court below, cannot be entertained
here.

In suit on a poUoy of insurance on the f reisrht of
a vessel, on a voyag'e from Charleston to Rio
Janeiro, and from tbence to a port of dlschanre
in the tJnited States, held, that the loss of the
frei^rht on the return voyage was a total loss, and
the plaiotifT was entitled to the whole amount un-
derwritten.

A question not made on the trial, or presented to
the court below for decision, cannot be entertained
here.

The insurance was upon the freight of each suc-
cessive voyage, and is to be applied to the frelflrbt
at risk at any time, whether on tbe outward or
homeward voyagre, to the amount of tbe valuation.

Argued FO), iS, 1860. Decided Ma/r. IB, 1860.

IN ERROR to the Circuit Court of the United
States of the District of South Carolina.

This action was brought in the court below,
by the defendant in error, on a policy of insur-
ance for |4,000.

The trial in the court below resulted in a
verdict and judgment in favor of the plaintiff
for $4,546, including interest and costs, where-
upon the defendants sued out this writ of
error.

A further statement of the case appears in the
opinion of the court :

Mr. Con. Robinaon, for plaintiff in error:
The court erred in charging the jury " that
upon the case as above stated, the plaintiff was
entitled to recover the whole amount under-
written by the defendants ;" for,

1. The plaintiff was entitled to recover nolh-
ine. The case stated must be looked at with
reference to the case alleged; memorandum
signed by the agent, must & taken in connec-
tion with the blank policy set forth in the
declaration, and that policy has this material
clause: "it is also agreed that if the above
named vessel, upon a regular survey, should
be declared unseaworthy by reason of her being

Note,— Jfwiiranor ; different Mnds of policies. Val-
ued policy.

Policies of insurance are divided witb reference
to tbe reality of interest into (1) interest and (2)
wager policies.

1. An interest policy is where tbe insured has a
real, substantial, assijmable interest in the thin^
insured.

2. A wager policy is a pretended insurance,

82tf

111-118

BUPRKKB CotJRT Of THE UNlTaft 9TAT«a.

DrC. f BR»f,

unsound or rotten, or uncapable of her prose-
cuting her voyage on account of being unsound
or rotten, then the assurers should not be re-
sponsible on this policy.

See Dair v. Pacif, Ins. Co., 7 Wheat., 610;
Janney v. OolwrnMan Ins. Co. , 10 Wheat. , 418.

Independent of the clause above relied on,
the doctrine is well established, that in all voy-
age policies there is an implied warranty of
seaworthiness.

Fawcm v. SarsfUld, 6 El. & B.. 201 ; Haazard
V. N. E. Mar. Ins. Co., 8 Pet., 581; 4 Dow.,
276; 1 Dow., 844; 2 Casey, 192.

With respect to insurance upon freight, the
rule was laid down by Nelson. «/., in 7 How.,
604: "If the damage happens to the vessel
and that can be repaired at the port of distress,
in a reasonable time, and at a reasonable ex-
pense, it is the duty of the owner to make the
repairs, and to continue the voyage and earn
his freight. In every case, before he can re-
cover of the underwriter, he must show that
he was prevented, by one of the perils insured
against, from completing the voyage, and for
that reason that failed to entitle him to the
freight from the shippers." The present is a
far stronger case against the surety than the
cases where after the commencement of the risk,
damage or loss occurs to the vessel, which
renders it unseaworthy, and the master, having
made a port where such damage might be re-
paired, neglects to have the same repaired, and
the vessel is afterwards lost in consequence of
unseaworthiness. In such cases it is held, that
the effective cause of the loss is the neglect of
the master to make the repairs which would
have prevented it.

Cudtoorth v. 8. C. Ins. Co., 4 Rich., 420;
Gen. Mut. Ins. Co. v. Sherwood, 14 How. , 365 ;
see, also, 1 Kern.. 19, 22; 1 Bosw.. 68, 76; 6
El. &B., 203, 204.

If the plaintiff was entitled to anything, his
judgment is far too much.

The contract of insurance is one of indemnity.

Charleston Ins. <fc lYust Co. v. Comer, 2 Gill,
427, 428; Franklin F. Ins. Co. v. Eamia, 6
Gill, 95.

Here the bill of exceptions does not show a
case of a valued policy, as in Davy v. IlaUett, 3
Cai., 19, and Patapseo Ins. Co. v. Biscoe, 7 Gill
& J., 294, but an open policy, as in Maitland
V. Ins. Co., 3 Rich., 332. No doubt the policy
was for the whole voyage round, as in Volum-

bianlns. Co. v. Ca4leU, 12 Wheat., 386. 387. But
treating the policy as open, the recovery could
only be in respect of 3,800 bags of coffee, at a
freight of 79 cents per bag, amounting at most
to ^.002.09. And then it might be a question,
whether from this there should not be a de-
duction in respect of the freight earned on the
outward voyage from Charleston to Rio de
Janeiro .

Robertson v . Marjoribanks, 2 Stark. , 573. To
avoid such deduction, the plaintiff: has to insist
that the freight insured is to be regarded as not
on **one entire voyage" from Charleston to
Rio de Janeiro, and thence to a port of dis-
charge in the United States, but upon *' sepa-
rate voyages" out and back, as in Hiigg v.
Augusta Ins. db Banking Co., 7 How., 610.
This last position the appellants are not dis
posed to controvert; for, treating the voyage,
from Rio de Janeiro to a port of discharge in
the United States, as a "separate voyage, " then,
according to the opinion of Bosworth. J., in
Van Va&enburg v. A^tor Mut. Ins. Co., 1 Bosw.
66, the policy is, in ^ect, a distinct insurance for
each separate voyage, and there is an implied
warranty of the seawortbiness of the vessel,
not onlv at the time of commencing the voyage
from Charleston to Rio de Janeiro, but also at
the time of commencing the voyage from Rio
de Janeiro to a port of discharge in the United
States.

In every aspect, it is submitted that the
judgment should be reversed, the verdict set
aside, and a new trial ordered, with proper in-
structions to the jury.

Mr. P. Phillips, for defendant in error:

Two questions only were presented by the
appellants to the court below.

After a very brief statement of the case, the
bill of exceptions says : '* Whereupon the
counsel for defendant insisted that the policy
was an open policy, and the insurers liable for
only $1,000, to which the court ruled and so
instructed the jury, that the agreement proved
was for a valued policy. Then the defendant
insisted that the $4,000 having been insured on
the round voyage, the insurers, from the evi-
dence, were liable only for the one half the sum
insured, the other half being covered by freight
of the outward voyage; and prayed the court so
to instruct the jury."

This second prayer was refused, and the
judge charged ' ' that the loss of the freight

founded on an Ideal rlslc, where the Insured has no
interest in the thingr insured, and can, therefore,
sustain no loss by the happeninir of any of the mis-
fortunes insured against. Bouvier's L. Diet.; Mar-
shall on Ins.. p. 189.

With reference to the amount they are distln-
If uished into (1) (tpen and (2) valued.

1. An irpen policy is one in which the amount of
the intercfit of the insured Is not fixed by the policy.
If the subject insured is not estimated at any par-
ticular amount or rate, in the contract, it i^an open
policy. Phillips on Ins., sec. 1178 ; Marshall on Ins.,
p. 199.

By an '*open" policy is also sometimes meant, in
the U. S., one in which an a^sregrate amount is ex-
pressed in the body of the policy and the specific
amounts and subjects are to bo indorsed from time
to time. 12 La. Ann., 259 ; 19 N. T.. 805 ; 0 Qray,
214.

2. A valued policy is where a value has been set
on the ship or goods insured, and that value inserted
in the policy in the nature of liquidated damagrcs.
By allowing the value to be thus inserted in the
policy, the insurer ag^rees that It shall be taken as
there stated. Marshall on Ins., p. 199 ; Phillips on

880

Ins., sec. 1178 ; Bouvier's L. Diet., Tit. Policy ; Bisset
on Marine Ins., p. 203 ; Snell v. Dei. Ins. Co., 1
Wash., 509.

To constitute a valued policy there is Inserted in
the policy some such clause as the following, '* 380
Kegs of Tobacco worth 9600 dollars." •*In case of loss
the saidshii) Is valued S,000(. and the said goods at
5,0002." **The said ship, goods, Ac, valued at the
sum insured." '^The said ship, &c., goods and mer-
chandises, &c., for so much as it concerns the as-
sured, by agreement between the assui'ed and the
assurers in this policy, are and shall be valued at

" or after description of the subject insured the

words "valued at,"— (amount.) Phil, on Ins.* sec.
1180 ; Harris v. Eagle Ins. Co., 5 Johns.. 368 ; Bisset on
Mar. Ins., p. 263 ; Marsh, on Ins., p. 200.

If the valuation is intended to «over an illegal
subject or risk, or is fraudul^t, it will be void. In
cases of fraudulent over-valuatlon,the valuation is
not binding. Lewis v. Rucker. 2 Burr., 1167 ; Haigh
V. De La Cour, 8 Camp., 819; Aikin v. Miss. Mar. &
F. Ins. Co., 4 Mart. N. S.. 661 : Marshall v. Parker. 2
Camp.. 09 : 12 Mass., 76 ; 8 Caines, 16.

Where the valuation is subject to some objection,
which does not Infect the whole contract, it may be

88 U. S.

1859.

Inburakcb Co. of Vallky of Va v. Mordscai.

111-118

was a total loss, and that upon the case as
above stated, the plaintiff was entitled to re-
cover the whole amount underwritten by the
defendants."

To this "last mentioned instruction, the de-
fendant excepted." There is therefore but one
question for review in this court, and that is
the correctness of the last instruction.

As the judge's first instruction was, that
" the agreement proved was for a valued
policy," even if this had been excepted to, the
bill of exceptions should have set forth all the
evidence that was given on that point. It must
show this in express terms, or by equivalent
averments, which would exclude the conclusion
that there was other evidence.

Where the bill admits of two constructions,
that will be adopted which is most favorable
to the regularity of the judgment. All reason-
able presumptions will be indulged in by an
appellate court in favor of the judgment. This
<'Ourt. therefore, could not determine that this
first instruction was wrong, for they have not
all the evidence on which the judge below
charged that *' the agreement proved was for a
valued policy," and if all the evidence was in,
this question cannot here be raised, because
there was no exception to that instruction.

If, however, we take the case as stated, the
plaintiff is entitled to recover the full amount
underwritten.

3 Cai., 42.

The second instruction, which was excepted
to, raises only the question whether, on the as-
sumption that the policy was a valued one, the
amount insured was on the round voyage, or
whether it was applicable to the risk of each
voyage.

The defendant contended, and so asked the
judge to instruct the jury, that the insurance
was on the round voya&^e, and that they were
therefore entitled to a deduction for the freight
earned on the outward vovage. This was neg-
atived in the charge, ana to this " last men-
tioned instruction, the defendant excepted."
This excludes, with an emphasis, any intention
to except to the first instruction, which de-
clared the policy to be a valued one.

The only question, therefore, is whether this
was a correct exposition of the law.

In the case of Hugg v. Augusta Ins. Co,, 7
How.. 610, the insurance was " on freight of
the bark Margaret Hugg, at and from Balti-

more to Rio Janeiro, and back to Havana or
Matanzas, or a port in the United States, &c. ,
to the amount of $5,000." &c.

It was insisted by defendants, that the voy-
age insured was one entire voyage, and that
they were entitled to a deduction of the freight
earned on the outward cargo from Baltimore
to Rio.

But this court said: " We are of opinion,
that upon a true construction of the policy, the
insurance was upon every successive cargo that
was taken on board in the course of the voy-
age out and home, and is to be applied to the
freight at risk at any time, whether on the out-
ward or homeward passage."

Mr. Justice Nelaon delivered the opinion of
the court:

This is a writ of error to the Circuit tourt
of the United States for the District of South
Carolina.

The suit was brought in the court below on
a policv of insurance, for $4,000, on the freic-ht
of the barque Susan, on a voyage from Charles-
ton to Rio Janeiro, and from thence to a port
of discharge in the United States.

The vessel sailed with a full cargo on the
11th June, 1855, when she was stanch and
strong, and arrived at the poj't of Rio Janeiro,
where she discharged her outward lading, and
took in a return cargo, and on the 10th October,
1855, started on her return voyage, but was
compelled, far wantof strength and soundness,
to put back to the port of departure, where she
was condemned as unseaworthy, and sold, and
the whole freight of the return voyage lost.

The counsel, upon this state of facts, which
is all that appears in the bill of exceptions, in-
sisted that the policy was an open one, and the
insurers liable for only $1,000; but the court
instructed the jury that the agreement proved
was for a valued policv.

The counsel then insisted, that the $4,000
having been insured on the round voyage, the
insurers, from the evidence, were liable only
for one half the sum insured — the other half
being covered by the freight of the outward
voyage; but Uie court charged, that the loss of
the freight on the return voyage was a total
loss, and that, upon the case as it appeared,
the plaintiff was entitled to the whole amount
utiderwritten. To this last Instruction, the
counsel for defendants excepted.

set aside, and the policy still be a valid open one.
McKim V. Pbcenlx Pa. Ins. €k>.« 2 Wash., 80 ; Adams
V. Pa. Ins. Co.. 1 liawle, 107 ; Hughes v. U. Ins. Ck>.,
8 Wheat., 2M.

If the valuation is neither intended as a waflrer,
by both parties, nor fraudulently made by the as-
sured, it is bindintr on both the parties. It fixes the
amount of the interest in the same mannerasif the
insurer were to admit it at a trial. In order to re-
cover a loss, the assured need not prove the value.
Marshall on Ins., p. 200; see cases cited above and
Sha we V. Feiton, 2 Bast, 100: Mar. Ins. Co. of Alex. v.
Hodgson, 6 Cranch, 220; S. C, 7 Cranch,332; Mo-
Nair v. Coulter, 4 Browne, P. C, 4fi0 ; Millar on Ins.,
255: Marshall on Ins., sees. 1183, 1187 ;^Feise v. AffMi-
lar, 3 Taunt., 506 ; 2 Wash., 162 ; Howell v. Cincinnati
Ins. Co., 7 Ham., 284.

The real value will not be closely inquired into.
Miner v. Ta^rt, 8 Binn.,204 ; Hodgson v. Mar. Ins.
Co. of Alex., 5 Cranch, 100; S. C, 6 Cranch, 206; 8.
C 7 Cranch, 832 ; Felse v. Aguilar, 3 Taunt., 506.

ir a party insures property exnected to be ship-
ped to a large amount upon a valued policy, and in
fact ships much le«8, he is entitled, in case of loss,
to recover a proportion pro rata only^ notwith-

Bee 22 How.

standing the valuation. AIbop v. Com. Ins. Com^I
Sumn., 451 ; Murray v. Col. Ins. Co., 11 Johns., 802 ;
Post V. Phoenix. Ins. Co., 10 Johns., 72 ; Wolcott v.
Eagle Ins. Co., 4 Pick., 420: Forbes v. Aspinwall, 18
East, 823; Brook v. La. Ins. COm 4 Mart. N. S., 640 ;
Montgomery v. Eggington, 3 Term, 882; Riley v.
Hartford Ins. Co., 2 Conn., 368 ; CooUdge v. Glouces-
ter Ins. Co., 16 Mass., 841.

Weights mentioned In valuation refer to place
where policy is made. Oracle v. Browne, 2 Caines,
80.

The valuation fixes the insurable interest. 2 Burr.,
1167, 1171: 1 Johns., 433 ; 6 Johns., 368.

The valuation is to be adhered to and applied, so
far as it is practicable, in settling partial as well
as total losses. Lewis v. Rucker, 2 Burr., 1167 ; Tun-
no V. Edwards, 12 East, 488: Goldsmid v. QlUies, 4
Taunt., 803; Forbes v. Aspinwall, 13 East, 828:
Sha we v. Feiton. 2 East, 100; Emery v. Rogers, 1
Esp., 207 ; Phil, on Ins., sec. 1203.

The owner of a vessel may insure in a valued
policy to two ports in the West Indies, the amount
of the prime cost of the goods, together with the
premium and freight to the first port. Pritohet v.
Ins. Co. of N. A., 3 Yates, 458.

881

161-174

SUPBBHB COUBT OP THE tTNTTlED STAtBS.

Dbc. Tshh,

The counsel for the plaintiff in error, on the
argument, referred to the clause in the policy
by which '* It is also agreed, that if the above-
named vessel, upon a regular survey, shall be
declared unseaworthy, by reason of her being
unsound or rotten, or incapable of prosecuting
her voyage on account of her being unsound
or rotten, then the assurers shall not be respon-
sible on this policy ;*' and insisted that the con-
demnation of the vessel as unseaworthy, after
returning back to the port of Rio Janeiro,
brought the case within it.

But the answer to this position is, that no
such question was made on the trial, or pre-
sented to the court for decision, and therefore
cannot be entertained here; neither does the
endence in the case enable the counsel to raise
any such question, as it does not appear that
the condemnation proceeded from the causes
specified in this clause of the policy. 7 Wheat.,
610; 10 Wheat., 418. It is enough, however,
to say, that the question, for aught that ap-
pears in the bill of exceptions, was not raised
on the trial.

As it respects the question whether the policy
was an open or valued one, no exception was
taken to the ruling that it was a valued one.
The point was not pressed, probably, as we see
from a memorandum of the a^nts of the com-
pany in the case, that it was mtended by the
agreement to be a valued policy.

The remaining question, and indeed the only
one presented in the bill of exqpptions, is,
whether the vovage insured is one entire voy-
age from Charleston to Rio Janeiro, and back
to the port of discharge in the United States,
and consequently the underwriters entitled to
a deduction of the freight earned on the out-
ward voyage.

The court is of opinion, upon the true con-
struction of the policy, the insurance was upon
the freight of each successive vovage, and \b to
be applied to the freight at risk at any time,
whether on the outwara or homeward voyage,
to the amount of the valuation.

The case in this respect is not distinguish-
able from ffugg v. The Aiigusta Ins, and Bank-
ing Co , 7 How., 595. See, also, 8 Gaines, 16;
7 Gill & Johns., 2U3; 2 Phillips on Ins., 81, 84.

Jvdgmeni of the court belato affirmed.

JUAN JOSE GONZALES, Appt,

THE UNITED STATES.

(See S. C, 22 How., 161-174.)

Mexican daim confirmed — omisnon of manner of

location not erroneous.

The clRim of Juan Jose Gonzales held to be a
good and valid claim to the land known by the
name of San Antonio, or Pescadero, to the extent
and within the boundaries mentioned in the Arrant
and map.

The failure to direct the precise manner of the lo-
cation of the irrant of land is not erroneous.

Argued Feb. £4, 1860. Bedded Mar. IS, 1860.

APPEAL from the District Court ot the Unit-
ed States for the Northern District of Cali-
fornia.

NOTB.— JC/eet of wordH " more or lew" or " by eeti-
mation** in a deed. See note to U. S. v. Foasat, 61
U.S. (in Book 16), 944.

* This case arose upon a petition filed before
the Board of Land Commissioners in Califor-
nia, by the app< llant, for the confirmation of a
claim to a certain tract of land.

The Board of Conmiissioners entered a de-
cree confirming the claim, but limitins^ its ex-
tent from west to east to three fourtns of a
lea&rue.

The district court, on appeal, having af-
firmed this decree, the petitioner took an ap-
peal to this court.

A further statement or the case appears in
the opinion of the court.

Messrs. H. P. Hepburn and V. E. How-
ard* for appellant:

This claim will be found on examination, to
be one of the most meritorious that has ever
been presented for confirmation.

The government has never opposed it; yet,
under the present decision, the claimant gains
but little benefit from his title.

The claimant contends that the land should
be confirmed to the boundaries mentioned in
the decree of concession, making him, in the
language of the decree of concessipn the
" owner of the land known by the name of San
Antonio,orElpescadero, bounded by the rancho
of Antonio Buelna, the Sierra, the coast, and
the Arroyo del Butano," without limitation, as
to quantity, there being none in the decree of
concession.

The quantitv of land mentioned in the grant
was erroneously inserted through a cleriou er-
ror.

But even admitting that it was inserted cor-
rectly, it is insisted by the claimant that the
quantity should be disregarded, where all the
boundaries are given in a grant, as in this
case.

The naming of a quantity of land in a srant.
and reservation of the surplus to the nation,
does not prevent the title from passing to the
grantee, if all the boundaries are given. A
clause in a ^ant, naming quantity and reserv-
ing surplus m such a case, is an unmeaning for-
mula. The utmost effect that could be given
to the clause would be, to reserve the right to
the (Government, on proper proceedings, to de-
vest the title as to the surplus; but, in the mean-
time, the title to the whofe land is vested in the
grantee.

The decree of concession gave him the whole
tract. Does the grant which was made hy virt-
ue of the decree, and in order to "revalidate"
it, take away the greater portion of the land
given by the decree?

The grant refers to the map to ascertain the
land, and the map exhibits the natural objects
which are its boundaries.

*'When a deed of land describes the subject
matter by monuments clearly defined, such as
a river, a sprine, a mountain, a marked tree,
or other natural object, and courses, distances
and quantity are likewise inserted, which dis-
agree with. the monuments, the description by
monuments shall, in general, prevail; for it is
more likely that a partv purchasing or selling
land should make mistafcesin respect to course,
distance and quantity, than in respect to natural
objects, which latter, from being mentioned in
the deed, are presumed to have been examined
at the time."

" The monuments which shall control course,

69 U. S.

1859.

Gonzales y. United States.

161-174

distance. &c., under such circumstances, may
be any objects which are visible and clearly as-
certainai, as lands of other individuals, or their
corners."

Phil. Ev.. Cow. & H. N., p. 548, and author-
ities there cited.

Mewrs, J. S. Black, Atty-Gton., and E«
M. Stanton, for appellees.

Mr, Justice McLean delivered the opinion
of the court:

This is an appeal from the District Court of
the United States for the Northern District of
California.

[Translation of Title.]

Provisionally authorized by the Administration
of the Maritime Custom- House of Monterey,
for the years 1832 and 1833.
Jose Figueroa, (General of Brigade of the Na-
tional Armies of Mexico, Commander-Gen-
eral, Inspector, and Superior Political Chief
of Upper California.

Whereas. Juan Josa Gonzales, a Mexican by
birth, has, for his own personal benefit and that
of his family, petitioned for the land known by
the name of San Antonio, or El Pescadero,
bounded by the rancho Antonia Buelnos Sierra,
the coast, and the Arroyo of Buntano, the
proper measures and examinations being pre-
viously made, as required by laws and regula-
tions, using the powers which are conferr<3 on
me in decree of the seventh of this month, in the
name of the Mexican Nation, I have granted
him the aforesaid land, declaring to him the
ownership of it by these presents — said grant
being understood to be in entire conformity
with the provisions of the laws, subject to the
approval or disapproval of the Most Excellent
Territorial Deputation and of the Supreme
Government, under the following conditions:

1. That he will submit to those which may
be established by the regulation which is to M
made for the distribution of vacant lands; and,
in the meantime, neither the grantee nor his
heirs can divide or alienate that which is
granted to them, subject to any tax, entail,
pledge, mortgage, or other encumbrance, even
for pious purposes, nor convey it in mortmain.

2. He may inclose it. without prejudice to
the crossings, roads, and servitudes; he will en-
joy it freelj and exclusively, making such use
or cultivation of it as mav best suit; but within
one year, at furthest, he shall build a house, and
it shall be inhabited.

3. When the ownership is confirmed to him,
he will request the proper magistrate to give
him juridical possession in virtue of this title,
by whom the boundaries will be marked out —
in which, besides the bounds, he will place
some fruit or forest trees, of a useful character.

4. The land of which donation is made him
is one league in length by three quarters of a
league in breadth, a little more or less, as shown
by the map which goes in the espediente; the
magistrate wha.may give the possession will
cause it to be in conformity with the ordinance,
in order to mark out the boundaries, leaving
the surplus which may result to the nation, for
its convenient uses.

5. K he contravene these conditions, he will
lose his right to the land, and it will be subject
to denouncement by another person.

k3ee 2Z How.

In consequence I order, that the present
serving him for a title, and being held as firm
and valid, note be made of it in the correspond-
ing book, and it will be delivered to the person
interested.

Given in Monterey, on the 34th December,
1833. JosE Figueroa.

(Signed) Agustin V. Zahobano, Sec'y.

Office of the SubveyorGbneral of )
THE United States for California. )

Samuel D. King. Surveyor-General, &c., and
as such now having in my office and under my
custodv a portion of the archives of the former
Spanish and Mexican Territory or Department
of Upper California, do hereby certify that the
fifteen preceding and hereunto annexed paees of
tracing paper, numbered from one to , inclu-
sive, and each of which is verified by my in-
itials (S. D. E.), exhibit true and accurate
copies of certain documents on file and form-
ing part of the said archives in this office.

In testimony whereof, &c.'

[Translation of Espediente.]

Provisionally authorized by the maritime
custom house of Monterey, for the years 1888
and 1884.

(Signed) Figueroa.

(Signed) Jose Rafael Gk>NZALE8.

To Bu Excellency the Commanding General :

I, citizen Juan Jose (Gonzales, native of the
mission of Santa Cruz, resident of the Town of
Branciforte, residing and employed in said mis-
sion of Santa Cruz, and mayor domo of the
same, married, with a family of thirteen per-
sons; having served the nation eight years and
two months as a soldier, and having obtained
my discharge from His Excellency, the Com-
manding General, Don Manuel Victoria, with
the condition of furnishing a recruit, which I
did at my own expense; and finding myself
with 500 head of large cattle, and having no land
or place to settle on ; tired of the trouble of being
together in the same village where I have been,
and am unable to progress on account of the
same; living where 1 have rated a great loss in
the stock which I have placed twelve years ago;
and being now actually favored by the same
mission of Santa Cruz, where my deceased
father sacrificed himself for twenty years, and
where I served in his place, the salaries of tJ^
post rent in the same mission (Friar Antonio
Real), satisfied with my services and those of
my deceased father, has wished to favor me,
by assigning to me the rancho of San Antonio,
formerly El Pescadero Realengo, which is not
occupied by said mission, is distant twelve
leagues to the northwest, bounded by the
rancho of San Gregoria, which place de-
lineated on the accompanying paper, including
a square of about four leagues, extending from
the coast to the sierra, and from the rancho of
San Gregoria {rancho occupied by citizen An-
tonio Buelna) to the rancko of La Punta de
Nuevo, which is the further occupied by the
mission, and desiring a security or guaranty in
the same place, I apply, with the consent of
the minister, to your Excellency, with the due
respect, praying that you will be pleased to
give me in possession the aforesaid place, in
consideration of my family, and which will
confer favor and grace on your most attached

889

161-174

BTTFBSICB CoUBT OV the UkITBD STATBfl.

Dec. Tjcbx,

subject and servant, who wishes you many
years of life, &c. Juan Qonzales.

Santa Cru2, Nov, 26, 1888.

Monterey, Nov. 29, 1838.

In conformity with the laws on the matter,
let the ayuntamiento of the Town of Branciforte
report whether the person interested in this
petition possesses the requisites to the at-
tended to in his petition ; whether the land he
asked is included in the 20 leagues from the
boundary, or 10 from the sea shore referred to
in the Law of August, 1824: if it is irrigable, de-
pendent on the seasons or pasture of land ; if it
belongs to the owDership of an^ private indi-
vidual, Corporation of Pueblo, with everything
else which may be proper to ezplam the
matter.

This being concluded, it will pass this espe •
diente to the reverend father minister of the
mission of Santa Cruz, that he may report what
he knows on the matter. Senor Don Jose Figue-
roa, general of brigade and commandant, in-
spector-general, and superior political chief of
the territory, thus ordered, decreed and signed ;
to which I certify. Fioubroa.

Agustin V. Zamorano, Sec'y.

In compliance with your Excellency's

to this ayuntamiento, under your command in
the decree of November 29th, 1838, to report
whether the person interested in this petition
possesses the requisites to be attended to in his
request, and if the land he asks for be included
in those referred to in the law:

The land asked for by the person interested
in this petition may now be granted to him, for
he has all the circumstances required to be at-
tended to, and is entitled to it.

It is an unoccupied place, has no irrigable
lands; has land dependent on the seasons; has
been recognized as the property of the mission
of Santa Cruz; and for the purposes it may
serve, I sign this with the second reffidor, on

account of the absence , in the town hall of

the Town of Branciforte, on the 2d Dec., 1883.
(Signed) Antonio Roblbs.

(Signed) Jose Maria Salabon.

I agree to there being granted the petitioner,
Juan Jose Gonzales, the place he asks for, as it
is a place which this mission does not at present
occupy ; nor is it deemed necessary for it, in con-
sideration of the fact that it has land enough for
its cattle, and that, being unoccupied, it is con-
sidered public land; besides, when the mission

occupied it had abundance of cattle,

have died and diminished, and the few that re-
main do not need the land. He is a person of
merit, and the mission ought to place him be-
fore any other person. He has all the requisites

and is entitled to it; and testimony i sign,

on 7th Dec, 1888.

Friar Antonio Surra del Real,
Minister of Santa Cruz.

Monterey, December 10, 1833.
Let it pass to the alcalde of this capital, be-
fore whom the party will produce, on infor-
mation of three fit witnesses, who will be ques-
tioned upon the following points:

1. If the petitioner is a Mexican by birth; if
he has served in the army ; if he is married and
has children; if he is of good conduct.

2. If the land he aiks for is of the ownership
of any individual or Corporation of Pueblo ; if

it is irrigable, dependent on the seasons, or
pasture land, and what is its extension.

8. If he has cattle with which to stock it, or
the possibililty of acquiring them.

This examination bein^ made, let him return
the espediente for its decision. His Excellency,
the political chief, commanding general, inspec-
tor and general of brigade, Don Jose Figueroa,
thus ordered, decreed and signed it, to which
I certify.

(Signed) Joss Figueroa.
(Signed) ' Augustus V. Zamerano.

Let the party interested in this espediente be
notified to present the witnesses who are to be
examined on the points included in the superior
decree of the 10th instant which precedes this.
Thus I, the alcalde, decreed, ordered and
signed it, with the assisting witnesses, in the
established form.

Marcelino Escobar.
Assisting witnesses:
(Signed) Jose Maria Maldorado.
(Signed) Jose Antonio Romero.

On the same day, present, Juan Jose Gon-
zales, the foregoing Act was made known to
him, and having understood it, he said that he
heard it, and that he presents citizens Salvio
Pacheco, Manuel Larios, and Felipe HernaD-
dez, and he signed it with me and the assisting
witnesses.

(Signed) N. Escobar.

(Signed) Juan Gonzales.

Assisting witnesses:

(Signed) Jose Maria Maldorado.

(Signed) Jose Antonio Romero.

In the port of Monterey, on the 18th day of
the month of December, one thousand eight
hundred and thirty-three, present, Salvio Pa-
checo, witness presented on the part of the
persons interested, oath was received in form
of law.

The petitioner is a Mexican by birlh : was in
the army; has thirteen children. The land
petitioned for has no private ownership; under-
stood it belongs to the mission of Santa Cruz;
that its extent is from a league to a league and
a half from east and from north to south ; he
does not know how much of it is, as it is a can-
on which reaches to the rancho of citizen An-
tonio Buelna. He has two hundred head of
cattle, a drove of mares and tame horses, &c.

Manual Larios, a witness, says he is a Mexi-
can; was in the army; is married; has chil-
dren ; knows that the' land petitioned for per-
tains to the mission of Santa Cruz; that the
said place is dependent on the seasons; that the
land is about a league or more wide, and two
from ihe beach to the hills.

A witness, Felipe Hernandez, repeats the
same facts as stated by the prior witness.

Monteket, Dec. 3d. 1833.

The official acts ordered in the foregoing su-
perior being finished, let the emediente l^ re-
turned to the superior political chief for the
superior decision. N. Escobar.

Monterey. Dec. 17. 1838.

Having seen the petition with this espediente,
commences the report of the municipal author-
ity of the Town of Branciforte, that of the Kev.
Father Minister of Santa Cruz, the declarations
of the witnesses, together with all other thin.es
which were presented and deemed proper to be

63 U. S.

1859.

Q0NZA.LE8 V. United States.

161-174

seen, in conformity with the provisions of the
laws and regulations on the matter, Juan Jose
Gonzales U declared owner in fee of the land
known by the name of San Antonio (or £1 Pes
cadero), bounded by the rancho of Antonio
Buclna, the sierra, the coast, the Arroyo del
Bratano, subject to the conditions which may
be stipulated. Let the corresponding patent
issue, let note be made in the proper book, and
let this espediente be directed for the approba-
tion of the most excellent territorial, in which
case the person interested, who will be made to
know this decree, will again present his title,
that it may be revalidated. Jose Fiourroa.

The committee on colonization and vacant
landff, to whom was referred the espediente, the
formation of which was caused by the petition
of citizen Juan Jose Gonzales for the place
named San Antonio, or El Pescadero, having
examined it with the corresponding circum-
spection, taking into consideration at the same
time the law of August 18th, 1824, those agree-
ing with it, and the general directions which,
on the 24th Nov., 1828, the supreme Govern-
ment of the Union gave for the better fulfill-
ment of the first: from the examination of the
ettpedierUe, the committee has become impressed
with the opinion which it before held of the
scrupulousness and tact with which His Excel-
lency the political chief ordered it to be made,
so that neither in its formation, nor in the steps
taken, in any essential reouisite wanting;
wherefore the committee concludes by offering
to the deliberation of this most excellent depu-
tation the following proposition :

1. Approved the grant made to citizen Juan
Jose Gonzales of the place named San Antonio
El Pescadero, on the 24th December, 1883. in
entire confomity with the provisions of the law
of August 18th, 1824. and article 5th of the
regulation of Nov., 1828.

MoNTKRKY, May 10, 1834.
(Signed) Carlos Antonio Carrillo.
** JosK Castro.

JosB T. Ortega.
** Jose A. Estudillo.

MoNTERRY, May 17, 1834.

In sessions of this day, the proposition of the
foregoing report was approved by the most ex-
cellent deputation ordering that the espediente
be returned to His Excellency, the superior po-
litical chief, for the convenient purposes.
(Signed) Jose Fioueroa.

Geohge Fisher, Sec'y.

Juan B. Alvarado, Sec'y.

Opinion of the Board by ConnW R. Aug. Thomp-
son.

For the place called San Antonio, or El Pes-
cadero.— Claim of for one square league of
land in the County of Santa Cruz.
This claim is founded on a grant made by
Governor Figueroa. on 24th December, 1883,
to the present claimant, which was duly ap-
proved by the Territorial Deputation on the
17th day of May following. The grant de-
scribes the land as that known by the name of
San Antonio, or El Pescadero, bounded by the
ranclio of Antonio Buelna, the sierra, the coast,
and the Arroyo de Butario. The fourth con-
dition states that the land of which donation
is made is one league in length and three quar-
ters ef a league in breadth, a little more or less,

See 22 How.

as shown by the map which goes with the es-
pediente, with the usual reservations of the so-
hrante or overplus to the use of the nation.
The boundaries are distinctly marked out on
the map; and although there is no scale on the
map, by which the extent of the boundaries can
be ascertained, yet there is a note made upon
it. stating that they extend one league from
north to south, and three quarters of a league
from east to west. This description, taken in
connection with that contained in the grant,
shows verv clearly that it is a grant by metes
and bounds, and that consequently no sobranie
can result.

The original grant is in evidence, and the
genuineness of the signatures of the Governor
and Secretary appearing thereon are duly
proved by the deposition of David Spence.
Manuel Jimeno proves that the claimant has
occupied the land since 1883; that he had a
house, horses and sowings on it, and he still
lives on it.

Entertaining no doubt, from the facts of the
case, that the ^rant is a valid one to the extent
of one league m length, and three quarters of
a league in breadth, it is hereby confirmed to
that extent; the three fourths of a league to f)e
surveyed within the out boundary represents
on tlie diseno.

Mr. Justice Campbell :

The plaintiff was confirmed in his claim to a
parcel of land designated as San Antonio, or
El Pescadero, in the County of Santa Cruz, by
the Board of Commissioners. The description
of the land in their decree is as follows:

" Being the same which has been held and
occupied by the present claimant since the year
1833 to the present time, and is Sounded as fol-
lows: Beginning at the mouth of the Arroyo
de Butario, and running along the sea coa^t,
and bordering thereon, to the boundary line of
Antonio Buelna, the distance being one league,
a little more or less; thence with the line of
said Buelna east three quarters of a league;
thence a line southerly parallel with the sea
coast until it intersects the Arroyo de Butario,
at the distance of three quarters of a league from
the coast; thence along said arroyo and bor-
dering thereon to its mouth, the place of begin-
ning; the same being in extent three fourths of
a square league, a little more or less. For a
more ps^rticular description, reference being had
to the original grant and map contained in the
espediente from the archives now in the custody
of the United States Surveyor-General for Cali-
fornia, the first of which and a traced copy of
the latter are filed in the case."

The parties appealed to the district court,
and, upon the hearing of the cause, the decree
of the Commissioners was affirmed, and it wa«
further ordered, that the claim of the said Juan
Jose Gonzales is a good and valid claim to the
land known by the name of San Antonio, or
Pescadero, to the extent and within the bound-
aries mentioned in the grant and map. the
original of the former and copy of the latter
being on file in the records of this case. From
this decree the plaintiff appealed. The only
question presented on the appeal is, whether
the grant is to be located according to the
natural calls in the. grant, or whether the claim-
ant is to be confined to the quantity spccilicd

ttao

192, 198; 235-227

SuFBSicB Court of thb Ukitbd Statsb.

Dflc. Term,

in the 4th condition of the grant. But the de-
cision of this question is reserved in the decree
of the district court, and will properly arise
after the location. The failure to direct the
precise manner of the location is not erroneous.
The rewuU therefore U, thai the decree must be
affirmed.

I concur in the above opinion.

S. !N^KL80N.

SAMUEL VERDEN, Plff, in Eh'.,

ISAAC COLEMAN.

(See S. C.,22 How., 190, 196.)

Appeal does not lie to state court — torit of error,
the proper remedy.

No appeal can be taken from the final deoision
of a state court of last resort, under the 25th sec-
tion of the Judiciary Act, to the Supreme Court of
the United States.

A writ of error alone can bring up the cause.

Argued Feb. t8, 1860. Decided Mar. 12, 1860,

APPEAL from the Supreme Court of the State
of Indiana.
The case is stated by the court.

Messrs. R. H. Oillet and D. Mace, for
plaintifiF in error.

Mr. Zebulon BairdU for defendant in er-
ror.

Mr. Justice Catron delivered the opinion of
the court:

Coleman sued Yerden in a state court of
Indiana, on a note of hand, and a mortgage
of lands, to secure its payment. On various
pleadings and proofs, the cause was submit-
ted for iudgment to the court, the parties
having dispensed with a jury. Judgment was
rendered against Yerden. who appealed to the
Supreme Court of Indiana. There the judg-
ment of the circuit was affirmed.

This occurred on the 26th day of June, 1858.
And then we find the following entry of record :
'*And afterwards, to wit: at a court began
and held on the 24th day of May, 1858, and
continued from day to day till July 16th, 1858,
at which time come the appellant, by Hon. D.
Mace, his attorney, and prays an appeal to the
United States Supreme Court, which prayer is
granted."

Bond was. given to prosecute the appeal, and
the clerk certifies the record to be a true copy
of the proceedings.

No appeal can be taken from the final de-
cision of a state court of last resort, under the
25lh section of the Judiciair Act, to the Su-
preme Court of the United States. A writ of
en'br alone can bring \xp the cause. We refer
to the appendix of Curtis' Digest for the mode.

It is ordered HuU the case be dismissed.

THE UNITED STATES, Appts.,

ROSA PACHECO et al.. Devisees under the
Last Will and Testament of Juan A. San-
chez DS Pachbco, Deceased.

(See S. C, & How.. 225-287.)

986

Inconsistent description in grant — map, as evi-
dence— congtriLction of grant.

In ascertaining the quantity of a Mpxlcan grant,
where the general description and the call for ^two
square leagues," found in the oondition of the
grant, are inconsistent, and plainly contradict each
other, the court is compelled to rely on other tl^e
papers and proofs.

A map, when t^en In connection with the evi-
dence of witnesses explaining its contents, may be
conclusive.

It was intended in this case to grant equal to two
leagues square, situate within the gflven out-
boundary ; that is to say, four leagues in one tract,
if so much is found in the general description and
dlseno.

Argued Feb. 28, 1860. Decided Mar. 12, I860.

APPEAL from the District Court of the Unit-
ed States for^the Northern District of Cali-
fornia.

This case arose upon a petition filed before
the Board of Land Commissioners in Califor-
nia, for the confirmation of a claim to a certain
tract of land.

The Board of Commissioners entered a de-
cree confirming the claim to the extent of two
square leagues only. On appeal to the district
court by the petitioners, this decree was re-
versed, and a decree was entered for the entire
claim; whereupon (he United States took an
appeal to this court.

A further statement of the case appears in
the opinion of the court.

Mr. J. S. Bla.ek« Atty-Gten., and Mr.
Stanton for appellants.

•Jfr. H. S. Mapraw, fdr appellees.

Mr. Justice Catron delivered the opinion of
the court:

On the 81st of July, 1834, there was granted
to Madame Pacheco a rancho of land, '* in-
cluded between the Arroyo de las Nueces and
the Sierra de Golgones, bounded by the said
places, and bounded bv the ranchos Las Jun-
tas, San Ramon and Monte Diablo." This
description was accompanied by a diseno, bet-
ter defining the exterior boundaries than usual.
But the grant has the following condition,
amongst others : ' ' The land of which mention
is made is two square leagues, a little more or
less, as shown by the map which goes with the
espediente. The magistrate who may give the
possession will cause it to be measuml in con-
formity with the ordinance, for the purpose of
marking out the ]x>undarie8. leaving the sur-
plus which may result, to the nation, for its
convenient uses."

The Board of Commissioners held that this
condition must govern as to quantity, and de-
creed two sqare leagues.

In the district court, that decree was re-
versed, and the land, as above described, and
as it is represented on the plan, was de<u>Qed to
the claimants, regardless of any exact quan-
tity. From this decree the United States ap-
pealed. The validity of the grant is not dis-
puted; the contest respects quantity only.

The plan presented by the party, and re-
ferred to in the grant, will furnish a f^ide to the
surveyor, as respects boundaries within which
the survey shall be made. But, in ascertaining
the quantity intended to be given, we think
neither the general description, nor the call for
" two square leagues," found in the contiition

68 U. 8.

1859.

Clabk y. Bowek.

270-278

of the grant, can be relied on, as they are in-
consistent, and plainly contradict each other,
and the adoption of the one must necessarily
reject the other. To find the true quantity
intended to be granted, we are compelled to
rely on other title papers and proofs.

The map shows, when taken in connection
with the evidence of witnesses, explaining its
contents, that the body of land petitioned for
and granted was something more than two
leagues long, and about two leagues wide. To
this effect, the parol evidence is conclusive;
and the map is equally so on its face, however
inaccurate it may possibly be found when the
objects called for, and laid down on the map,
are sought on the ground. Nothing could be
more manifest than that the grant was intended
to give to Madame Pacheco a rancho of at least
two leagues on each side line, making four
leagues m superficies. And as the plan is part
of and accompanies the last title paper, we feel
bound to give it due weight, in reaching the
undoubted equity of the claim.

This court is not dealing with a legal title;
none such can exist until there is a survey, the
land severed from the public domain, and the
public title transferred by a final grant from
the United States into private ownership.

What precise tract of land is to be surveyed
and granted to Pacheco's heirs, " according to
the (>rinciple8 of equity," must be ascertained
in this proceeding, to the end that'Uie United
States may grant the legal title, in satisfaction
of the Treaty ; and tfconceasion by leagues being
the rule, and one extending to indefinite out-
boundaries the exception, we hold that it was
intended in this case to ^rant equal to two
leagues square, situate within the given out-
boundary; that is to say, four leagues in one
tract, if so much is found in the general de-
scription and diseno.

The decree of the district court is, therefore,
renereedf and the cause remanded to that court,
to be further proceeded in, according to tlUe opin-
ion.

Cited— 64 U. S. (23 How.), 406.

HENRY O. CLARK, IRA JUSTIN, Jb., and
A. HYATT SMITH, Plffe. in Er.,

HENRY C. BO WEN, THEODORE McNA-

MEE, SAMUEL P. HOLMES and HENRY

L. STONE.

(See S. C, 22 How.. 270-273).

Whore judgment vacated, original indebtedness

revived.

The state court properly vacated its own Judg-
ment, as respected the two partners, Clark and
Justin, after Smith, the solvent partner, had been
released from it, because Clark had no power to
bind Smith by the confession; and because the
(roods that were assi^rued to secure the Judorment,
had been taken by a preyious mortgage of them.

Where the whole arrangement to secure a debt
was In effect annulled, the original indebtedness
stood revived, and was properly enforced by the
Judgment of the circuit court.

Argued Feb. 17, 1860. Decided Ma/r. 12, 1860.

IN ERROR to the District Court of the United
States for the District of Wisconsin.

See 2St How.

L. S.. Book 16.

It appears that the defendants in error, who
constituted the firm of Bowen & McNamee,
had a claim for goods sold and delivered
against the plaintiffs in error, who constituted
the firm of H. O. Clark & Co., of Janesville,
Wisconsin. It was agreed between Gilkison, a
collecting agent of ]£>wen & McNamee, and
H. O. Clark & Co. , Smith being absent at the
time, that H. O. Clark <& Co. would confess a
judgment for Uie amount due, and make an
assignment, preferring Bowen & McNamee,
with other creditors of the firm, to secure the
indebtedness. This was done, judgment being
confessed in Rock County Circuit Court, be-
fore the return of Smith. Gilkison thereupon
executed to H. O. Clark & Co. a receipt
which admitted payment in full of all prior
and existing indebt^ness and canceled notes
which had been given by Clark & Co. to Bowen
& McNamee. Immediately after Smith's re-
turn, on Aug. 17, 1854, the property was taken
from the possession of Stevens, the assignee, on
a chattel mortgage, executed by H. O. Clark &
Co.

At the November Term of the court, on the
application of Smith, who was the onl v respon-
sible member of the firm at that time, the
judgment was vacated as to him. At the
March Term, Bowen & McNamee applied to
have the judgment vacated as to all the defend-
ants, in order that they might be restored to all
the rights that they had Mfore the judgment
was confessed and the arrangement made.

On July 6, 1855, the judgment was vacated
by order of the court as to all the defendants.
On or about Aug. 29, 1854, Bowen & McNa-
mee, with some oi the other preferred creditors,
filed a bill in the United States District Court
for the District of Wisconsin, against H. O.
Clark, A. Hyatt Smith, Ira Justin, Jr., Chas.
Stevens and others, to enforce the assignment.

April 2, 1855, Clark, Smith, and Justin filed
their answers, denying the validity of the as-
signment. Ob the 8d day of November Term,
1856, the bill was dismissed without prejudice.
On the first Monday of September, 1856, ihe
declaration in this suit was filed upon eight
promissory notes, which had not been delivered
up. After various proceedings the case was
tried, and the court charged the jury that the
judgment confessed and entered in the Circuit
Court of Rock County was vidid, and the
notes in suit mersed in it, until it was vacated
and set aside by tnat court. If the assignment
and the judgment were objected to by Smith
and the other parties, and the assignment re-
scinded by Smith and these other defendantd,
by taking back the property, the original debt
was revived, and the receipt is* not a bar to
this suit. The Circuit Court of Rock County
had the power to vacate the judgment as to all
these parties. It does not appear that the notes
in suit were ever given up to the defendants.
The exception to this charge presents the prin-
cipal point in the case.

Messrs. J. H. BInowlton* J. R. Doolittle
and W. P. Feaaenden, for plaintiffs in error :

1. The instrument canceling the notes in
controversy, contained a sufficient consideration
to make it binding.

liUler V. Drake, 1 Cai., 45; PoweU v. Broum,
8 Johns., 100; Fbrsiery. Fuller, 6 Mass., 58;
Uterstreet v. PkiUips, 1 Litt., 128; Toumsley v.

2Z 387

274-282

SUFBEMB Ck)UBT OF THB UnITBD StATBS.

Dec. Terit,

SumraU, 2 Pet., 182; LemasUrv. Burckhart, 2
Bibb. 80; Seaman v. Seaman, 12 Wend., 381;
Handle v. Harris, 6 Yerg., 508; Sampson ▼.
Swift. 11 Vt., 815; Hubbard v. CooHdge, 1 Met.
98; CAicAj v. 2V««;€ff, 20 Me., 462; WaydeU v.
Luer, 8 Den., 410.

When judgment by confession, or otherwise,
is entered against one or a part only of a part-
nership firm, it is an extinguishment of the
firm liability, and it is quite iinmaterial that
the creditor did not know that there were
other members of the firm, against whom he
took no judgment. When the creditor asks
for and obtams such a Judgment as he gets,
he is bound by it, and he cannot enlarge his
rights, so as to hold others originally liable,
but who by the judgment are discharged.

Robertson Y. Smith, 18 Johns., 459, 476, 484;
Woodworlh v. Spaffcrd, 2 McLean, 168; WiU-
ings V. Consequa, 1 Pet. C. C, 802; see TVc^f-
ton V. U. S.,d Sto. C. C, 646.

One of two partners has not power to con-
fess a judgment or authorize the confession of
judgment against the firm, where no* writ has
been issued against both. Such judgment is
not binding on the one who does not act, but is
binding and conclusive on the one who does
act, and he cannot have it set aside.

Qirard v. Basse, 1 Dall., 119, 122; Sloov.
State Bank oflUinois, 1 Scam., 428; Barlow y,
Reno, 1 Blackf., 252; Orazebraok v. McCreedie,
9 Wend., 437; Crane y. French, 1 Wend., 811;
1 Am. Lead. Cas.. 448. 449.

Taking the note of one partner for a liability
of the firm, is a valid discharge of the firm,
when the creditor agrees that the original lia-
bility shall be considered paid, and cancels or
delivers up, or agrees to deliver up or cancel,
the evidences of the firm liability.

This is the ordinary rule upon these facts,
other than the j;>articular agreement. The in-
tention of parties to this end is presumed. 1
Smith L. C. — note to Cumber v. Wane, 891 to
898.

If this is the. law on the giving the note
of one partner, a fortiori must the giving a
sealed warrant of attorney to confess, and the
actual confession of judgment binding upon
two or three members of the firm, and taking
also an assignment of property to a trustee for
the benefit of the condition, be a discharge.
Such is the case at bar.

Theie is no pretense that anv of the defend-
ants practiced fraud upon Gilkison. There was
no mistake even, unless perhaps Gilkison. the
agent, may have mistaken the law as to whether
Smith would be bound by the judgment con-
fessed. There can be no doubt about the in-
tention of the plaintiffs to cancel the notes.
For such mistakes of law, the defendants in
error can have no relief.

Huntv. Roiismanier, 8 Mas.. 294; 1 Pet, 1;
Bank U. S. v. Daniel, 1 2 Pet, 32; ChampUn v.
Laytin, 18 Wend., 417; Shotwell v. Murray,
1 Johns. Ch.,516; Lyon v. Richmond, 2 Johns.
Ch., 51; Storrs v. Baker, 6 Johns. Ch., 169;
Clarke v. Dutcher, 9 Cow. , 674, 681 ; Gilbert v.
Gilbert, 9 Barb., 532; Arthur v. Arthur, 10
Barb., 9, 16.

The voluntary setting aside of their judg-
ment as to the other two defendants without
the consent of Smith, would not revive the
liability against him.

888

WiUettv. Forman, 8 J. J. Marsh. 292; Street
V. MuUin, 5 Bbickf., 563; ManviUe ▼. Gay, 1
Wis., 260.

Messrs. William P. Lynde and B. K.
Miller, for defendants in error:

The court entering the judgment had va-
cated it and, therefore, the promissory notes still
in possession of the plaintiffs, uncanceled, were
still valid, and plaintiffs were entitled to recover
upon them.

Whether the state court erred in vacating
the judgment, this court will not inquire; it is
enough that the judgment was vacated by the
court in whidi it was entered.

A receipt may be contradicted or explained.

Grates v. Key, 8 B. & Ad., 818; Harden v.
Gordon, 2 Mas., 561; Chunny. McCarton, 2
Dev. Ch.. 78; Fuller v. Crittenden, 9 Conn.,
401 ; 1 Greenl. Ev., sec. 805; 1 Cow. & H. ti. to
Phil. Ev., 881 ; 2 Cow. & H. ; n. to Phil. Ev.,
581.

Mr. Justice Catron delivered the opinion
of the court:'

We deem it to be a matter not open to con-
troversy in this suit, that the State Coiurt of
Rock County properly vacated its own judg-
ment, as respected Clark and Justin, after
Smith, the solvent partner, had been released
from it — because Clark had no power to bind
Smith by thQ confession; and secondly, because
the goods that were assigned to a trustee to
secure the judgment had been taken from the
assignee, by a previous mortage of them.

The following admission is found in the bill
of exceptions, and is conclusive of the merits
of this controversy:

"It is conceded by defendants, that the
judgment in the circuit court was confessed at
the time of the execution of the assignment,
and that the assignment was to secure the Judg-
ment, and the judgment and assignment were
the mode adopted to secure the plaintiff's debt;
and that Clark executed the assignment and
judgment for Smith."

The uihde arrangement to secure the debt being,
in effect, annulled, the original indebtedness stood
revived, and was properly enforced by the Judg-
ment of the circuit court, whicKwe order shaU be
affirtned.

Cited-06 U. 8. (in B. 24), 484 ; 1 Flip., 206.

THE UNITED STATES, Appts.,

RAFAEL GARCIA.

(See 8. C, 82 How., 274-^282.)

Mexican claim rejected for want of grant.

Where claimant obtained an order of Governor
Micheltorena to search after land and to take pos-
session of it while the usual procedure was beinr
prosecuted, and the claimant selected a tract and
occupied and improved it. and solicited a arant,
and the grovernor referred the petition to the alcalde
for the usual infttrme, and this constitutes all the
evidence of title produced by the claimant, and no
grant was obtained; held, that the claim should he
rejected.

Argued Feb. 9, 1860. Decided Mar. IS, 1860.

APPEAL from the District Court of the Unit-
ed States for the Northern District of Cali-
fornia.

w u. s.

1859.

UNitKD States v. Garcia.

274-2^2

The historj of the case and a statement of
the fasts appear in the opinion of the court.

Messrs. J. S. Black, Atty-Oen. , andE. M«
Stanton« for appellants:

The Board of Land CommiBsioners rejected
the claim unanimously. Judge Hoffman de-
livered an opinion concurring with the Board,
but Judge McAllister decided in favor of the
claimant, expressing ''considerable doubt" of
its legal justice. The United States have ap-
pealed. We ask the court to reverse the decree
of confirmation and reject the claim, upon the
ground that there is absolutely no title what-
ever. A Governor of the Department in 1844
gave the claimant a passport, so that he might
go out and hunt for nine leagues of land, and
if he should happen to find any, ffives him au-
thority to take possession of it until a title could
be made out. The claimant now says that he
did happen to find exactly nine leagues of
land, but he did not report to Uie Governor
who gave him the roving commission, under
which he was traveling when he made the dis-
covery . He waited nearly two years, until an-
other governor came into ofQce, and then he
did proceed according to law, by presenting
a petition and doing what the regulations of
1828 require. Nor did he ask for any definite
action. The order of the governor was as vague
as the petition. It was simply an order that
the alcalde of San Rafael mirht report . The
alcalde made report, and in mat report falsely
stated that the land Jiad been previously granted
to the claimant by Micheltorena, and added,
somewhat paradoxically, that it did not belong
to any private individual, on account of its dis-
tance from the frontier . Blight evidence of occu-
pancy is added to this, and there rests the case.

Not a single provision contained in the Act
of 1824, or in the Regulations of 1828, has been
complied with or followed in all this business.

The claim, under such a title as this, is so pre-
posterous, that It is impossible to argue against
it with any sort of senousness. It never was
regarded as a title by the Mexican (Government.
There was no espedienie on file. The papers
are all produced from the private custody of
the claimant himself. There is no trace of the
proceeding to be found anywhere upon record.
The genuineness of the papers is extremely
dobubtful.

If anything were wanting to expose this claim
to further contempt, it mi^t be found in Mich-
eltorena's proclamation of Uec 16, 1844. where-
in he states exactly how he was employed on
the 15th of November, the day upon which his
passport to Garcia is dated.

The seal atfixed to Micheltorena's letter is a
manifest forgery.

Messrs. Csklhoun Benham and F. Marr-
bury, for appellee:

The case presents two questions:

1. Was there a contract between the claimant
and the Mexican Government; and if so, what
was it ?

2. If there was such a contract as claimant
pretends, had the governor power to make it ?

1st. It is conceded, for the sake of argument,
that there are no express words of grant in the
decree of Micheltorena; but, at the same time,
we think the decree furnishes proof enough to
display an agreement between the government
and the petitioners.
See 22 How.

On this point the counsel cited 6 Pet., 788;
7 Cranch, 288.

The gift was a general one, but it became
particular when it was located, and the plan
was presented.

Frimonts case, 17 How., 660; Clark's case,
9 Pet., 169.

If the decree was a grant, as we think it too
plainly was to require the aid of construction,
without doubt the governor was bound ; but if
it was no more than a promise to grant, he was
equally bound. Selection, occupation, eligi-
bility, services rendered, petition with a plan,
were a price — commandea an equivalent.

See case of Chouteau's Heirs, 9 Pet., 141 : see,
also, 10 Pet., 810, 815, 886. 840; 12 Pet.,
434; 15 Pet, 220; 11 How., 63, 115; 12 How..
484, 437; 14 How.. 191.

2d. If there was such a contract as claimant
pretends, had the governor power to make it?

If it was a grant, he had the power. If it
was only a promise to make a grant, he had
the power also. It was necessarily involved in
the general and complete power he had over
the subject-matter. Ills own construction of
the law conferring his powers, is conclusive.

FrSmonfs case, 17 How., 651, 562.

We maintain there is title; legal, perhaps;
certainly equitable. We care not to debate as
to its dignity, since, for all purposes connected
with this gtuisi htigation with the government,
an equitable title is as good as a legal title. We
think a promise of title is imported at least, in
the authority to select, occupy with property
(cattle), and hold possession of a tract, while
the procedure (to obtain a titulo) was being had
on the presentation of the requisite disevi/s; and
that this promise of performance of the con-
ditions of the decree and of the law being shown,
entitles the claimant to a confirmation. He has
held this land for sixteen years — save some parts
from which he has been forcibly ejected,

The delay should not provoke remark. There
was no hurry. He was occupying the land
during the two years, which .was all the gov-
ernment wanted. He had no reason to antici-
pate the change of fiags.

Every provuion but obtaining the titulo and
the approval of the Departmental Assembly,
was complied with. There was a petition with
a diseno; there were cultivation and improve-
ment; there was at least an implied order or
promise to issue the iitulo.

The proceeding was substantially the same
as the one most usual ; the difference was in
favor of the government. Usually the grant
was upon conditions subsequent; here they
were to be performed in advance of the tUvXo.
Custom and usage were well followed. The
proceeding had not arrived at the stage of
record.

Mr. Justice Catron delivered the opinion
of the court:

The question in this case is, whether the land
claimed was private property when we acquired
California by Treatv, or whether it then was
part of the public oomain of Mexico, and now
belongs to the public lands of the United States.

1 . If it was private property, it must have be-
come so by the grant of a vested interest, that
was good in equity; made by the granting
power in the Territory of California, being

889

2.6-289

BUPRSICB OotTBT OF THB UhTTSD STATBS.

Due. Tkbu,

authorized to exercise the sovereign power, as
no other authority could devest the public title.

2. If the land in dispute was acquired by the
United States, as public property, then the
courts of justice have no jurisdiction of the
subject matter, and cannot interfere. This is
a postulate, not open to controversy. United
States V. Fffrbee, 15 Pet., 182.

That the Mexican authorities, exercising the
granting power in California, conferred no title
on Garcia, we think satisfactorily appears, for
the reasons set forth in the opinion of Judge
Hoffman, delivered in the district court, and
found in the records, the most material parts
of which opinion we adopt. The district
judge says:

'* In support of his claim, the appellant ex-
hibits an order of Michelterona, dated Novem-
ber 15. 1844, which is as follows: 'According
to your memorial of the 14th instant, you ask
for the grant of a passport to penetrate into the
points of the coast on the northern line of this
country, with the object of locating a tract of
land of the extent of eight to nine leagues, since
that which you now occupy with your personal
property is so limited. By this order, you are
empowered to appear before the military com-
manding authority of that frontier, in order
that, after an examination, you may proceed
to your research after the tract of land you ask
for, as a recompense for the services rendered
by you to the nation.

" ' If you should happen to select any tract of
land, you are empoweml to occupv it with your
said property, and to take possession of it while
the usual procedure is being prosecuted, pres-
enting the requisite sketch.

'*' God and liberty.

MjLNXJBL MlCHBLTOREKA.

" 'Monterey, November 15, 1844.

•"To Don Rafael Garcia, at his raneho.'

*' Availing himself of the permission thus
granted, the claimant appears to have selected
a tract of land, and to have occupied and im-
proved it to some extent. No steps, however,
were taken by him to obain a title until March
4th, 1846, when Garcia addressed a petition to
Gov. Pico, in which, after referring to the
order of Micheltorena, he solicits a grant of the
land. Grov. Pio Pico, by a marginal order, dated
April 7th, lt546. referred the petition to the
alcalde of San Rafael, for the usual informe.
On the 29th of April, 1846, the alcalde reported
that the land did not belong to any private in-
dividual . The f oregoi ng constitutes all the evi-
dence of title produced by the claimant. It is
not pretended that any grant was ever issued
for the land, or that any further action what-
ever was taken by Pio Pico on receiving the
alcalde's informe. Whether be determined not
to grant the land, or whether he omitted to do
so in conse(}uence of the distracted condition of
public affairs, we are ignorant. One fact is
clear : no grant was obtained by the claimant.

" A mere petition to search for land, such as
that given to the present claimant, finds no place
in the Mexican system.

" The application of Garcia to Micheltorena
was for a passport to enable him to search for
land. In granting this, and also the permis-
sion to put his cattle upon the tract he might
select, Micheltorena in no respect bound hun-
sel f or his successors to issue a fi nal title. Such

840

seems to have been the view.of Pio Pico and
the claimant himself, for a petition, accom-
panied by the usual diseno, is formally pre-
sented to that oflScer, and by him referred, for
information, as in other cases.

"If this claim is to be confirmed, every pro-
visional license or permission temporarily to oc-
cupy land must be held to constitute an equi-
table title, provided the claimant has availed
himself of the permission — a ruling which
would astonish no one more than the old in-
habitants of the countr]^, bv whom the impor-
tance of obtaining a ' title from the governor
was well underst^xl.

"For aught we know, Pio Pico, when the
petition was subsequently presented, found it
inexpedient to grant the land ; and if the claim-
ant, under a mere permission to occupy it with
his cattle, has built a house upon it, and for
two years omitted anv effort to procure a title,
he must attribute the loss of the land to his own
neglect."

The Board of Commissioners unanimously re-
jected the claim, from whose decision, Garcia,
the claimant, appealed to the district court.
There the judgment of the Board was reversed,
on a division of opinion, and a decree entered,
confirming the claim, probdbly with a view of
transmitting the case to this court for final de-
termination.

Fffr the reasoru aibove (stated, it u ordered tJuU
the decree of the dietriet court be recer$ed. And
t?ie court beUno is directed to dismiss the petition j
for which purpose the cause is remanded.

THE UNITED STATES,

«.

THE WIDOW, HEIRS and EXECUTORS

OP WILLIAM E. P. HARTNELL, De-

ceased.

(Seo 8. C, 22 How., 286-280.)

CaUfomia Oowmor can only grant eleten leoffues
to one person — grant must be concurred in by
Departmental Assembly.

Under the law of 1824, the Governor of California
had no power* in 1844, to grant flrratuitously, for
the purposes of til!afre, inhabitancy and pasturaire,
more than eleven leagues of land to any one peraon.
although it might be in different tracts.

The public domain was the property of the Mex-
ican nation. The Governors of California do not
show that thpy did represent the nation, so as to
conclusively bind it; to have this effect, the govern-
or's grant must have the concurrence of the Be-
partmental Deputation.

The Assembly was the controlling power, and
could reform or nullify the Governor's grant.

Argued Feb. 2S, 1860. Decided Mar. Ig, 1860.

APPEALS from the District Court of theUnit-
ed States for the Northern District of
California.

The history of the case and a statement of
the facts appear in the opinion of the court.

Messrs. J. S. Black* Atty-Oen., and E.
M. Stanton, for the United States.

Mr. Calhoun Benluun, for claimants:

I. The court will not go behind the grant of
the casumnes, to entertain the qu^tion how
much land Hartnell had received, because the
recitals of the grant show that the law was
satisfied. The grant is a judgment upon all

68 U. S.

1859.

UmTBX) States y. Habthsll*6 Hsibb.

286-280

questions of law and fact, involved in the
transaction which it consummated. The Mex-
icans always considered the granting of lands
an adjudication ; they habitually spoke of them
when granted as tsrrenos cuffudicandoM,

II. But if the court do entertain the ques-
tion, we say:

1. The maximum restriction found in the
12th section of the Colonization Law of lb24,
has only the effect of forbidding the granting
of more than eleven leagues in one grant.

2. The maximum restriction did not curtail
Micheltorena's power. That power was ex-
traordinary, ana extended beyond what the
Law of 1824 gave; it applied expressly to colon-
ization, and was co extensive with that of
Santa Anna, which was de facto, if not dejura,
dictatorial,

8. The estate was only voidable at the worst.
It cannot be avoided in this proceeding.
Every right or title unimpaired at date of ces-
sion. IS protected.

Act March 8, 1851, sees. 8, 11.

In view of this point, it may be said the es-
tate did not vest so far as the supposed excess
is concerned, but this cannot be maintained.
The governor granted. The idea that the
Departmental or the Supreme Grovemment par-
ticipated in that function, is a bald attempt to
engraft upon the regulations of 1828, what
mere inspection of the text will show has no
place there, and what construction in the most
liberal spirit, can never authorize.

See FrSmonfs case, 17 How. (58 U. S.);
550.

The land being once vested, the vote by the
Departmental Assembly was ineffectual to
devest it. The concurrence of the Supreme
GTovernment was necessary.

Beadiiig'B case. 50 \5. S. (18 How.), 7; Cer-
vantes' case, 50 U. S. (18 How.), 555.

There should have been an inquest of office.
If the right to avoid passed by a conquest or
cession, whichever it be held to have been, we
have no machinery by which to effectuate it.

2Cal., 550; 6 Cal., 878.

The proceedings authorized by the Act of
March 8, 1851, are in no r^ect in the nature
of an inquest of office. Were such the case,
the United States would be the actors.

We invoke no equity power for the con-
firmation of our title. Our title is a legal title,
by which we can recover in ejectment.

We ask the court to ascertain and settle it,
not to confirm it, in the strict legal sense of
that word. We want no additional title, no
additional patent.

4. The estate is not voidable now, in any
proceeding. The law by which it could have
been avoided, is abrogated. It was political in
its nature, and was abrogated upon the cession.

5. The grant must be confirmed for all the
land. It is a patent. It can only be contra-
dicted by matter of record. There is no mat-
ter of record which has that effect. The non-
approval by the Departmental Assembly, as
has been shown, though it may be regarded as
matter of record, is not effectual to contradict
it. because that Act is not competent to devest
the estate.

The other patent (for Todos Santas y San
Antonio), which disclosed the fact that Hart-
nell had already received a large quantity of

Bee 22 How.

land, cannot be entertained as evidence for that
purpose. It is dehors the patent for the eo-
sumnes land. If our patenf for eosumnes
granted more than eleven leagues, then the il-
legalitv might be considered ; but being legal
on its race, it cannot be invalidated but by judg-
ment in denouncement, or office found. Our
allegation that we had more land has no effect,
for the question is not involved in the case.
4Bibb, 830;7B. Mon., 81.

6. The grant must be confirmed, because the
court cannot know whether the grant for Todos
Santos y San Antonio will be confirmed or not.

7. The maximum restriction did not affect
the validity of the grant. No invalidity
could attach to the grant as affecting any par-
ticular portion of the land, until some proceed-
ing diminishing the quantity and scjgregating
the portion withdrawn from the residue, was
had.

8. The maximupi restriction did not apply
to Mexican citizens.

We submit, the decree must be reversed, and
the gr9Xii confirmed for the whole quantity of
the land claimed in the eosumnes tract.

Mr, JiLsUee Catron delivered the opinion
of the court:

Hartnell got a grant from (Governor Alva-
rado, dated June S, 1841, for a body of land
lying in Lower California. The quantity is not
specified in the grant, the out-boundaries only
being designated.

In November, 1844, he obtained another
grant for eleven squares leagues, lying in Up*
per California. Both claims were duly set forth
in a petition seeking confirmation, before the
Board of Land Commissioners, and they were
confirmed, with modifications — ^the lower grant
to the extent of five leagues, and the upper for
six leagues.

From this decree the parties appealed, and
brought their cause to the District Court, held
at San Francisco. That court, sitting in the
upper district, had no jurisdiction to re-
examine the judgment of the Board, as re-
spected the leagues confirmed in the District
of Lower California; and as to that tract, the
appeal was dismissed, and therefore that title
stands cx>nfirmed.

There being cross appeals, the question arises
here, whether the upper grant should be con-
firmed for six leagues or For eleven — the grant
of the governor calling for the latter quantity.

The district court adiudged six leagues as
the proper quantity; ana on this single point
the cause comes before us — both parties being
satisfied with the decree below in all other re-
spects.

The narrow question is, had the Governor of
California power, in 1844, to grant gratuit-
ously, for the purposes of tillage, inhabitancy
and pasturage, more than eleven leagues of
land to any olie person? Section 12 of the Law
of 1824 provides, that it shall not be permitted
to unite in one hand, as property, more than
one league of irrigable land, four leagues of
farming land, not irrigable, and six for stock
raiding.

Both titles of Hartnell were brought before
the Departmental Assembly. That body held
the law to be, that the governor could not
"unite in the same hand more than eleven

841

290-203

SUFBBICB COUBT OV THB UnFFBD StATB&

Dec. Txbm,

leaji^es, although it might be in different tracts ;
and 80 reported to him.

The public domain was the property of the
Mexican Nation, and those who were enabled
to displace that title, separate portions of it
from the public lands, and vest such portions
into individual proprietors by perfect^ titles,
could only do so in the exercise of sovereign
power, because the public title was a sovereign
right; and agents who assumed to exercise this
authority must show that they represented the
nation. The Governors of California do not
show that they did represent the nation, so as
to conclusively bind it; to have this effect, the
governor's grant must have the concurrence of
the Departmental Deputation. It follows, that
the Assembly was the controlling power, and
could reform or nullify the governor's grant;
and having reformed it to the extent or five
leagues in the case before us, the claimant came
in under the Treaty of Pea^ with Mexico, hav-
ing no iiitcrest in these five leagues. 8 How.,
»a3. 304.

We have no doubt that the Departmental

Assembly, the Board of Commissioners, and

the district court, construed the Law of 1824

(secton 12) correctly, and order the decree hdow

to he afflrmed in auita parte.

Cited-27 Cal., 168.

THE EXECUTORS AND HEIRS OF AU-
GUSTIN DE YTURBIDE, Deceased,

THE UNITED STATES.

(See S. C, 22 How., 290-296.)

Court bound by statute, ae to grant — and as to
appeal — cannot add saving dause to statute —
cu>t mandatory.

Where an entry is required by statute to be on a
condition expreased, tne court is bound by the
statute.

Where the languasre of the Act of Auffust 81, 18S2
is, *' the appeal shall be considered as dismissed "
where the notice is not filed as required, the court
cannot say it shall not be so considered.

If there be no saving clause in the statute, the
court cannot add one on equitable g'rounda.

The Act of Auff. 31, 1862, as to appeals from the
board of commisaoners, is mandatory on the court,
and authorizes the exercise of no discretion.

Argued Feb. B8, 1860. Decided Mar. 1$, 1860.

APPEAL from the District Court of the Unit-
ed States for the Northern District of Cali-
fornia.

The history of the case and a statement of the
facts appear in the opinion of the court.

Mr. M. Blair* for appellants:

The district court dismissed the appeal on the
ground that its own order, allowing the notice
of appeal to be filed nunc pro tunc, was void.

I contend that this order was not invalid.
The language of the statute, that " the appeal
shall be considered as dismissed " in case the
notice is not filed as required, is directory merely.
It prescribes a rule as to the time of filing a
paper in the progress of a cause, and such rules
are directory merely, and are never construed
to prohibit the filing of the papers after the time

812

limited, and before the adverse party has takf n
advantage of the. omission.

(ySaraY. Nieury, 1 Sand., 656; Cook -7. For-
rest, 18 111., 581; Wood^r. Fobes, 6 Cal., 62; 1
Barb., 478; 8 Rich.,60; 0 Ala., 399; 1 Brev.,208.

The suit was instituted and notice given of its
pendency to the United States, by filing the
transcript from the record of the board of ooni'
missioners.

U. 8. V. mtcfUe, 58 U. 8. (17 How,). 584.

The court, being thus possessed of a cause
which it was required to dispose of on the princi-
pies of equity, was authorized to permit a pro-
ceeding required in the subsequent progress of
the cause, to be taken nunc pro tunc, tot good
cause and in aid of the ends of justice. That
proceeding was altogether formal, and oc-
casioned no supprise or injury to the adverse
partv, and it would be against the whole spirit
of the Act which required the courts to deal
with the rights of the claimants according to
the principles of equity, as well as against the
ordinary rules of practice, to hold that the order
in relation to it was void.

The ground upon which the commissioners
reiected this claim is, that it was not located
till after the change of government This ob-
jection was overruled by this court, in Ruther-
ford y. Greene's Heirs, 2 Wheat., 196; in Fre-
mont V. The U. 8.. 58 U. 8. (17 How.), 567.
and in Bissellv. Penrose, 8 How^, 317.

Messrs. J. S. Black, Atty-Gen., and E. M.
Stanton for appellees.

Mr. Justice McLean delivered the opinion
of the court:

This is an appeal from the District Court of
the United States for the Northern District of
California. A grant of twenty leagues square of
land, equal to four hundred square leagues, was
made by the Supreme Government of Mexico
to President Yturbide, to be located in Texas,
on 25th February, 1822, '*in recompense for
his high merit, in having achieved the inde-
pendence of his country."

In 1885, the Congress of Mexico authorized
his heirs to locate the land in New Mexico, or
in Upper or Lower California. On the 20th of
February, 1841, it was decreed by the Presi-
dent that the land should be located in Upper
California; and on the 5th of June, orders were

?;iven by the President to the Governor of Cali-
omia to assign the land selected by Salvador
de Yturbide, one of the heirs, in fulfillment of
the grant, and the ordtr was duly received by
Pio Pico; but when Salvador was near Mazat^
Ian, en route for California, to locate and take
possession of the land, he found that port in
rebellion, and was obliged to return to Mexico.
The claimants took no further proceedings
till after the close of the war with the Unit^
States, and Congress had passed laws to carry
into effect the treaty stipulations. They pro-
ceeded then to locate the claim on the tract
described on the map. and presented their peti-
tion to the board of commissioners, asking for
the confirmation of the grant. The board re-
jected the claim, on the ground that it had not
been located prior to the ciiange of govern-
ment.

An appeal was taken to the district court,
under the Act of 1852; but the counsel of appel-
lants, being detained from home by aickness,

68 U.S.

1859.

UkiTBD STATBd Y. Db HaRO'b HbIBB.

^3<2dd

did not file the notice, directed by the Act to be
given within six months. Before any motion
was made to dismiss the cause, they moved the
court for leave to file the notice, nunc pro tune,
and proved, to the satisfaction of the court,
Uiat the omission to file the notice was wholly
accidental; and the court thereupon allowea
the motion, and ordered the notice to be filed
nunc pro tune. But, on hearing of the cause,
the court decided that, under the Statute of
1853, a failure to file the notice within six
months precluded any further prosecution of
an appeal, under any circumstances whatever,
and therefore dismissed the appeal.

The district court, it is said, dismissed the
appeal on the ground that its own order, allow-
ing the notice of appeal to be filed nunc pro
tune, was void.

As the above statement is clear and concise,
it was copied from the plaintiff's brief.

The counsel insists, that the allowance of the
appeal, after the time limited, was not void;
that the language of the statute, that *' the ap-
peal shall be considered as dismissed, in case
the notice shall not be filed as required," is
directory merelv.

It must be admitted, that, as to the matter of
filing papers and the entry of rules under the
practice of the court, such modifications may be
made as may facilitate the progress of the court
and the convenience of parties; and, indeed, the
court may, under peculiar circumstances, avoid
an act of injustice by the suspension of its
rules; but this can only be done where the dis-
cretion of the court may fairly be exercised.

Where an entry is required by statute, on a
condition expressed, the court is bound by the
statute. The languase of the Act, that *'the
appeal shall be considered as dismissed " w^ere
the notice is not filed as required, would seem
to admit of no doubt. " If the appeal shall be
considered as dismissed," for want of notice,
bow can the court say it shall not be so con-
sidered?

If there be no saving in a statute, the court
cannot add one on equitable grounds. The 12th
section of the Act of 81st August, 1852, pro-
vides that, in every case in which the board of
commissioners shall render a final decision, it
shall be their duty to have two certified tran-
scripts of their proceedings and decisions, and
of the papers and evidence on which the same
were founded, made oiU, one of which tran-
scripts shall be filed with the clerk, shall ipso
facto operate as an appeal for the party against
whom the decision fliiall be rendered; and if
such decision shall be against the private claim-
ant, it shall be his duty to file a notice with the
clerk of the court, within six months there-
after, of his intention to prosecute the appeal;
and if the decision shall be against the United
States, it shall be the duty of the Attorney-
General of the United States, within six months
after receiving the said transcript, to cause to
be filed with Uie clerk aforesaid a notice that
the appeal will be prosecuted by the United
States; and on the failure of either party to file
such notice with the clerk, the appeal shall be
regarded as dismissed.

Thu seems to be mandatory on the eourt, and
authorises the exercise of no discretion,

ated--6 Sawy^ »6w
Bee 29 How.

THE UNITED STATES, AppU,,

THE HEIRS OF FRANCISCO Db HARO,

Deceased.

(See 8. C, 82 How., SBS-SQB.)

Mexican grant confirmed — alteration in, against
daimanfs interest, vsiU not he imputed to him.

Where the father of petitioners obtained a for-
mer errant of Alvarado, Qovemor of California, to
the lot petitioned for, and remained in possession
thereof up to his decease, and from that time pe-
titioners have been, and still are, in the quiet and
undisputed possession of said land, and such undis-
turbed possession has been for sixteen years, and
it does not appear that anyone else has claimed or
exercised a possession or rl^ht of possession over
the premises ; held, that the title should be con-
firmed.

Where the arrant was originally made and dated
by Governor Alvarado dunng his term of office,
and the date which it now bears is an evident alter-
ation aflrainst the interests of the claimants, it is not
to be imputed to them.

Argued Feb, U. ISSO, Decided Mar, 23, 1860,

APPEAL from the District Court of the Unit-
ed States for the Northern District of Cali-
fornia.

The history of the case and a statement of
the facts appiear in the opinion of the court.

Messrs, J. S. Black, Atty-Gen., and E. M.
Stanton, for appellants.

Mr, P. Phillips, for appellees.

Mr, Justice McLean delivered the opinion
of the court :

The petition of the heirs of Francisco de
Haro represents:

That on the 80th July, 1848, the father of
^our petitioner made and presented his petition
m writing to Alvarado, Governor of Califor-
nia, soliciting for himself the grant of a lot of
land in the mission of Dolores, to which he had
previously obtained a provisional grant of Jose
Ramon de Estrada.

That on the 16th of August, 1848, said Fran-
cisco obtained a formal grant of said Alvarado
to the lot so petitioned for, and remained in
possession thereof up to the time of his decease ;
and that, from that time up to this day, your
petitioners have been and still are in the quiet
and undisputed possession of said land.

That said land is situated in the mission Do-
lores, and in the block known and laid down
on the official map of San Francisco as block
No. 87, and forms the northeast of Centre and
Dolores Streets, containing fifty Spanish taroA
square — which mnt has properly been re-
corded in the archives of California — and that
the original documents are herewith submitted
to the inspection of your honorable board.

Francisco Sanchez was sworn, as to the gen-
uineness of the grant, and he says: I never saw
the paper before, but I have no doubt it is gen-
uine. I am acquainted with the signatures of
Frandsoo de Haro and Juan B. Alvarado, hav-
ing often seen them write; and I recognize
their signatures, as they appear on said docu-
ment, as their genuine signatures.

There were some old nouses on the land at
the time of the grant, which had belonged to
the mission. These were repaired by Francis-
co de Haro, and in 1846 he was living in them.
The land had been inclosed since by his son-

848

20&-298

BUPBSXB 'COUBT 09 THB UHmED STATBB.

Dec. Tkiix,

in-law, Charles Brown. De Haro died there in
1848. The house was repaired by de Haro.

Francisco de Haro, over his own signature,
represents: " That beinf^ established in the es-
tablishment of Dolores, in houses of the name
called ' Mayor domos/ opposite the principal
house and pUuta; and, as 1 obtained them from
the prefect of the Ist district, Don Jose Ramon
Estrada, I solicit of Your Excellency the legiti-
macy in property, for the expenses that I have
to make to repiur them, to live therein with my
family, in virtue of my services rendered, re-
ceiving grace from Your Excellency, by adding
fifty va/ras eastward of the houses, inasmuch as
I beg most humblv. &c"

MONTERBT, Aug. 16, 1848.

Most Excellent Sir: Whereas the citizen
Fsancisoo de Haro has rendered interestinff
services to the nation and to the Department^
Government, and in virtue of his being already
in possession of the houses solicited by previous
consent of the government, as it is shown by
the concession of the prefect of the district, I
have concluded by these presents, in conform-
ity and ratifying said concession jointly with
the fiftjT varas to the eastward of said houses,
as solicited.

The Judge of San Francisco will have it so
understood, for the cases that may occur upon
informations in relation to the new Town of
Dolores. Alyarado.

This claim was at first held not to be valid
and was,',con8equently, rejected by the commis-
sioners. From this decision there was an ap-
peal to the district court. On this appeal a wit-
ness, Candelario Valencia, was sworn, who savs
he is forty eight years of age, and resides in the
mission of Dolores, San Francisco County, Cal-
ifornia. The witness first knew Francisco de
Haro about thirty years since. He is now
dead ; he died in 1847 or 1848, at the mission of
Dolores, and in the building now occupied by
Louis Pruso, which is on the northeast of Cen-
tre and Dolores Streets. The lot on which this
house is situated is a fifty vara lot.

To the question, who are the heirs of Fran-
cisco de Haro? the witness answers: At the
time of his death he left eight children— one
died without issue; the names of those living
are as follows: Josefa de Haro, wife of James
Dennison— she was formerly wife of Guerrera,
now dead; Rosalia de Haro, formed v wife of
Mr. Andrews, deceased — now wife oi Charles
Brown; Natividad, formerly wife of Ignacio
Castro, deceased, and now of Paul Tissot;
Prudencia, unmarried; Candelaria, unmarried;
Charlotta, wife of Fish ; Dennison, brother of
James; and Alonzo, not yet of age. Frandsco
de Haro lived in the house ten years. It was
formerly part of the establishment of the mis-
sion, and was occupied by the mayor domos;
it fronts upon the p2aea of the mission, and also
is opposite the principal house of said mission.
Since the death of Francisco de Haro, it has
been occupied, and is si ill, by the tenants of
his heirs. Dolores and Centre Streets have
always existed, since the mission was estab-
lished, but had not their present names; in
fact, they had no names. This lot in question
had the same position that it now has. A sur-
veyor, without any difficulty, could locate said
lot.

The witness says that he has lived at the

844

mission Dolores for the last sixteen years, and
has seen all that he has testified to.

The final decree of the district court before
both the Judges was as follows:

This cause came on. to be heard upon the
transcript of the proceedings in the Board of
the United States Land Commissioners, &c.,
and upon the proof taken in this court upon
the appeal from the decision of the said Board,
taken therefrom by the complainant, and upon
hearing counsel for appellants and respondent,
and due deliberation being thereupon had, &c,
it is orderedT, adjudged and decreed, that the
decision and decree of the said board be, and
the same is hereby reversed .

And it is further ordered, adjudged and de-
creed, that the claim of the said appellants to
the land claimed by them is valid, and that the
same be, and hereby is confirmed to them.

The land whereof confirmation is made is
that certain fifty vara lot, situated in the mis-
sion Dolores, on the northeast comer of what
are known as Centre and Dolores Streets, on
which lot there is a house which formerly
formed a part of the establishment of Uie mis-
sion Dolores, occupied by the mavor domM
thereof — said lot fronting on the ptasa, oppo-
site to the principal house of said mission, and
which lot was in the occupancy of Ftancisoo
de Haro for some years previous to his death,
and has been recently in the possession of one
Louis Pruso, as tenant of the claimant, together
with and addins fifty tHsras to the eastwanl and
immediately adjoining said houses.

Subsequently, a notice was served on. the
district attorney, that the counsel for the coni-
plainants will move the court, on the 14th of
September, 1857, on that day, or as soon there-
vJtXgt as counsel can be heanl, that the decree
entered in this cause be reformed, by adding to
the description of the property confirmed by
the said decree, " together with the parcel of
land, fifty twra* square, to the eastwiml there-
of. San Francisco, September 10th, 1857."

Afterwards, on motion of the District Attor-
ney of the United States, '* it is ordered ^hat
the decree heretofore rendered at this term in
the above case be set aside, and that the cause
stand for reargument at the next term of this
court."

And the final entry, upon filing and reading
the affidavit of B. S. Brooks, and upon inspec-
tion of a traced copy of the original grant of title,
whereof confirmation was heretofore made,
certified in due form from the office of the Sur-
veyor-(General, from which it manifestly ap-
pears to the court that the said grant wasorisi-
nall^ made and dated by Governor Alvarado
dunng his term of office, and that the date
which it now bears is an evident alteration
against the interests of the claimants, and there-
fore not to be imputed to them ; and upon filing
a notice of motion and due proof of service
thereof upon the District Attorney of the United
States, and counsel having been heard for
both parties on motion of Afr. Williams, of
counsel for the claimants, it is ordered that the
order heretofore made in this cause, setting
aside and vacating the decree heretofore made
confirming the claim, be, and the same is here-
by vacatS, set aside and annulled, and said
decree revived and reinstated.

From this decree there was an appeal to the

•8 U. 8.

1860.

Jbtbr V, HbwitT:

862-8A4

Bupreme Court of the United States by the
goyemment.

" It appears that an undisturbed possession
of the property claimed has been in the posses-
sion of Francisco de Haro and his heirs sixteen
years, and it does not appear that anyone has
claimed or exercised, a possession or right of
possession over the premises. The copy of the
original grant of title, whereof confirmation was
heretofore made, certified in due form from the
ofllce of the Surveyor- General, from which it
manifestly appears to the court that the said
grant was onnnally made and dated by Gov-
ernor Alvaraoo during his term of office, and
the date which it now bears is an evident alter-
ation against the interests of the claimants, and
therefore not to be imputed to them." This^
being the language of the court, imparts verity
to the grant, and would seem to settle all doubt
on the subject.

There were some old houses on the land at
the time of the grant, which belonged to the
mission, but it would seem no longer belong
to it.

Upon the whole, we cannot doubt, from the
title papers, and especially from the sixteen
years' possession which has been enjoyed by
De Haro, and his heirs — using the property as
their own, claiming it under the grant — ^that
the title should be confirmed; and it is herehy
confirmed.

Cited-65 U. S. (1 Black), 270.

JOHN P. JETER, Plff. in Br.,

JAMES HEWITT, MELVILLE HERON

AND MARY CONRAD.

(SeeS.C.,22 How., 36S-d64.)

Louisiana judgment, when res judicata— :;um-
diction — stati decisions, when binding.

In Louisiana, a Judgment ooDflrmlDgr and homol-
otfaUng a Judicial sale, Is resjudicatan so as to oper-
ate ''as a complete bar against all persons, whether
of age or minors, whether present or absent, who
may thereafter claim the property so sold, in con-
sequence of all illegality or informality in the pro-
ceedings, wnether, before or after Judgment."

And the Judgment of homologation is to be re-
ceived and considered **a8 full and conclusive proof
that the sale was duly made according to law, in
virtue of a Judgment or order legally and regularly
pronounced on the interest of the parties duly rep-
resented.*'

The Jurisdiction of the courts of the United
States, in cases like the present, is derived exclu-
sively from the fact that the parties are citizens of
diflPerent States.

The rights which originate in the law of Loui-
siana, must be ascertained by a reference to the
principles adopted and administered by her con-
stituted authorities.

The sentences of her courts, except in a few cases
arising under the Constiiutlon and laws of the
United States, are entitled to the same force and
effect here as they have in Louisiana.

Argued Feb. £7, 1860. Decided Mar. 12, 1860.

N ERROR to the Circuit Court of the Unit-
ed States for the Eastern District of Louis-
iana.

The petition in this case was filed in the court
below, hy the plaintiff in error, to recover a
plantation and slaves, and other property there-
in enumerated.

See 92 How.

The court below having entered a Judgment
dismissing the petition, the petititioner sued
out this writ of error.

A further statement of the case appears in
the opinion of the court.

Messrs. Geo. E. Badger and J. M. Car-
lisley for the plaintiff in error:

1. If this were a case of which the court
ordering; a seizure had jurisdiction, still no title
passed hy the sheriff's deed, because ''he was
Dound to give three day's notice to the debtor
before the seizure, if he resided on the spot;
and if he did not, to count in addition a day
for every 20 miles between the residence of the
creditors and the residence of the Judge to
whom the petition was presented.

Code of Pr., 785; Erwin v. Lowry, 7 How.,
181, 183.

2. But the whole proceeding was coram non
jwUce and void. There was no action pending
in that court.

Bee Code of Pr., arts. 78, 79, 95; Babcock v.
WHlams, 10 La., 896; Jenkins v. T)/ler, 8 Mart.
N. 8., 188; Andrews Y. Bank of N. Orleans,
5 La. Ann., 738, CarroUton R. R. Co. v. Bos-
worth, 8 La. Ann., 80.

3. The validity of this title set up by the de-
fendants, is not res judicata. The monition
suit on which this pretension is founded, could
have no such effect if the proceeding in the
fifth district court were a nullity. See Monition
Act, B. & C.'s Dig., 586; City Bank v. WaC-
den, 1 La. Ann., 47, and 16 La. Ann., 596.

Besides, the court where the monition suit
was prosecuted, had no Jurisdiction over the
ori^nal suit, and could have none over that
which was merely incidental.

Again, the Judgment in the monition suit was
not a judgment upon the merits, even against
Mrs. Ford; and was not at all against Jeter.

Civ. Code, 2265.

Finally, the decree of homologation, in its
terms, seems really to come to nothing, since
it only confirms and homologates the sale, "in
so far as the same has not been opposed ;" while
the record shows that it was totally opposed.

4. Jeter is not estopped to claim against the
sheriff's sale, or to show the nullity of the pro-
ceedings upon which it is based. '

In this respect, this case is in striking con-
trast with Erwin v. Lotory, in 7 How., 172.
There, Hector McNeill, under whom Lowry
claimed, had active! v participated in the pro-
ceedings at the sale, nad Joined in the selection
of appraisers (p. 182), had requested the marshal
to offer the land and the negroes together, which
was done (p. 183), and all this in the presence
of Erwin; and upon the faith of this conduct,
Erwin purchased. In the present case, it is
distinctly proven that Jeter, "in a loud and
audible tone," announced "to the sheriff and
the bystanders," "that he was the owner of the
property, and forbade the sale of it; and this
announcement was made before the property
was adjudicated to Hewitt & Heron."

"He made his objections known publicly to
the crowd." The sheriff answered, that "he
would proceed with the sale."

The only facts relied on by the defendants as
creating an estoppel, are, first, that Jeter was
present at the sale, and when the proj^erty was
first offered, bid for it $70,000, and it was
knocked down to him; and second, that in

846

852-864

BUFREXB COUBT OF THB UrTTRD StaTBB.

Dbc. Tkbm,

1852, he Joined with Mrs. Ford in making a
deed for forty arpents of the land to Hewitt &
Heron, for $2,000.

As to the first, his bid was for the protection
of his own interest, and to avoid litigation. He
had already paid Mrs. Ford $5,000, and he had
agreed to pay, not only the debts charged on
this property, but all the debts. Such a fact,
even if the other party had acted upon it,
could create no estoppel.
^earne v. Rogers, 17 Eng. C. L., 451, 452.

But Hewitt & Heron did not act upon it.
The sheriff refused Jeter's draft on Hill, Mc-
Lean & Co., of New Orleans, with whom he had
arranged for the money, and refused him time
to go to New Orleans to produce the money,
and "demanded that he should pay in cash the
amount of his bid within half an hour, or he
would set up the property fmd sell it again, which
he did."

Then it was that Jeter eave notice of his title
and forbade the sale; and llewitt& Heron pur-
chased under this notice.

As to the deed made in 1852. so far from im-
porting a recognition of the title of Hewitt &
Heron, it would rather signify an admission by
them, that at least as to this fragment of forty
acres, it required confirmation by a deed from
Jeter.

In no view of these facts can they operate as
an estoppel. The general current of authorities,
English and American, establishes the principle
that a declaration in pais shall not work an es-
toppel, unless it appears affirmatively that it
was intended that the party for or to whom it is
made, should act on the faith of it, and that he
actually did so act. and will be prejudiced by
the contrary assertion. If it be necessary to
cite authorities for this, they will be found col-
lected in Hare & Wallace's note to Howard &
Hutchinson, 2 Ell. & B., 13 Amer. ed., and in
the principal case. Here there was express
warnine given.

For these reasons, it is respectfully submitted
that the decree should be reversed.

Mr. J. P. Bei^amin, for defendants in
error:

1. This action is plainly based on the assump-
tion that the proceedings in the state courts of
Louisiana (under which the title of Ford's suc-
cession to the propertv was devested, and the
property sold to the defendants), are an abso-
lute nullity.

It is an attempt indirectly to bring before the
federal courts, jurisdiction of a question which,
under the decisions of this court, cannot be ex-
amined by them.

The courts of Louisiana had jurisdiction of
the property appertaining to Ford's succession,
and they have exercised that jurisdiction by
disposing of that property.

Iiow,then.can that disposition of the property
be supervised or revised by the federal courts?

This court has always declined to permit the
proceedings of even the inferior courts to be at-
tached collaterally before it.

Tarver v. Taroer, 9 Pet., 174; Gaines v.
Cftew., 2 How., 619, 644; Fouvergne v. City of
K 0., 18 How., 471; Hagan v. Preston, 22
How. , 473, decided at present term.

In this case, the plaintiff goes to the extrava
gant length of calling on the court not to annul
ue pro<^eding8 of an inferior state court as

846

irregular or illegal, but to treat the final decision
of the Supreme Court of Louisiana, as an abso-
lute nullity.

The form chosen for the action, a simple
petitory action of ejectment, is a transparent
devise used by plaintiff, to avoid the neces-
sity of bringing an action to set aside the judg-
ment of the Supreme Court of Louisiana, he
being conscious that such action would be utter-
ly untenable.

II. Jeter was a party to the suit determined
by the Supreme Court of Louisiana, and it forms
resjivdieata,

Tis true he was not a party b^ name, but the
opinion of the Supreme Court is explicit, that
Mrs. Ford's action as executrix was for the use
of Jeter.

Having once litigated his rights through all
the courts of Louisiana, the plaintiff cannot re-
new the contest in the federal courts. The er-
eeptio rei a^udicata, is a complete bar to hia
suit.

III. The monition proceedings and judg-
ment on them, are in the nature of proceedings
in rem, and bind all the world, even those ig-
norant of their pendency — a fortiori, do they
bind one who, like Jeter, was not only conu-
sant, but was active in oppusifioa.

The Monition Law of Louisiana (Acts 1834,
p. 125; Rev. Stat., iai2, p. 425) is a wise and
beneficial statute, and should bie liberally con-
strued. It was passed for the protection of in-
nocent purchasers at sheriffs' sales, and by the
4th section, the court that issued the process
had jurisdiction.

By the 6th section, the jud^ent is conclu-
sive evidence that the proceedings of the court
on the monition were regular; and by the 7th sec-
tion, the judgment of the court confirming the
sale, operated as res judicata and a complete
bar against all persons, whether of age or mi-
nors, whether present or absent.

There is nothing in the 8th section which
can release the plaintiff from the effect of this
estoppel, because ''notices of the sale and ap-
praisement were served by the sheriff by leav-
ing them on the plantation with the overseer,
and plaintiff had notice of the sale, and was
present at it, and bid for the property."

Besides, plaintiff was in the place and stead
of Ford, and Ford had confessed judgment in
the original mortgage, and thereby waived ci-
tation to make defense

When a mortgage is granted with confession
of judgment, executory process issues at once
wiUiout citation (Code Practice, 734), and is in
the nature of the^./a. that is issued on such
judgments as are confessed in court.

IV. Jeter's presence at the sale, his bidding,
his failure to notify other bidders of any oppo-
sition to the sale, form a complete estoppel en
petis, as well under the principles of equity ju-
risprudence, as by the settled rules of the law
of Louisiana.

Harris v. Denison, 8 La., 543; Dozer v.
Squires, 13 La., 180; Walker v. Aden, 19 La.,
308; MeMasters v. Cammissioners, 1 La. Ann.,
11; Muir, Syndic, v. Henry, 2 La. Ann., 593;
Moore v. Lambeth, 5 La. Ann., 67; Bk. La. y.
FMi, 9 La. Ann., 299.

V. Both Mrs. Ford and Jeter were parties to
a deed, by which, in consideration of (2,000,
they ratified the title of the purchasers.

68 U.S.

1859.

Jbteb v. Hewitt.

852-864

This deed was passed on the 1 1th of April,
1851. It had reference to the property now
in dispute.

Mr, Justice Campbell delivered the opinion
of the court:

The plaintiff commenced this suit to recover
a plantation and slaves, with the horses, mules,
implements, and other things enumerated in
the petition destined to the use and conven-
ience of the plantation, and for an account
of rents and issues for a term of years. He de-
duces his title from Christopher Ford, who
was in possession of the plantation at his death,
in 1849, through a conveyance from Louisa W.
Ford, the widow, executrix, and instituted
heir of her deceased husband, dated in Novem-
ber, 1850.

The defendants show, that in November,
1845, two banking coroorations of Louisiana
(Bank of Louisiana and New Orleans Canal and
Banking Corapanv) sold to Christopher Ford
this plantation and twenty eight slaves, for the
price of $40,000, a portion of which was paid
in cash, and for the remainder a credit was
given, and that Ford mortgaged the property
conveyed to him, and sixty-eight other slaves,
which he agreed to place on the plantation. On
the same day, he obtained from the Bank of
Louisiana a loan of money, which was secured
by another mortgage on the same property. At
the time of the death of Ford, he was in ar-
rears for the debt and interest that had accrued.

In the mortgage to the Bank of Louisiana,
Ford agrees not to alienate, deteriorate, or in-
cumber, the property mortgaged, and confesses
judgment for the sum of money to be paid.
He renounces the benefit of the laws that re-
quire property seized on execution to be sold
on CTciiit or after appraisement, and agrees,
that if the debt shall not be paid according to
the tenor of the mortgage, then the bankmg
companv may obtain an order of seizure and
sale, and sell the mortgaged premises and slaves
by public auction, for cash, after an advertise-
ment of thirty days. He waives his privilege
to be sued in any other district than the first
judicial district of the State, and agrees that
process may issue from the district court for
the first district, or an^ other court in New
Orleans having jurisdiction.

The charter or the bank provides, that upon
all mortgages executed under the Act, the bank
shall have the right to seize the property mort-
gaged, in whatever hands it m^ be, in the
same manner and with the safne facilities that
it could be seized in the hands of the mort-
gagor, notwithstanding any sale or change of
the title or possession thereof, by descent or
otherwise.

On the 16th December, 1850, after the con-
veyance of Mrs. Ford to the plaintiff, the Bank
of Louisiana instituted a suit upon the second
mortgage above mentioned; a writ of seizure
and sale issued, and the property was adver-
tised for sale the 1st February, 1851. Jeter
was present at the sale that took place on that
day, bid for the property the sum of $70,000,
and it was adjudicated to him at that price.
He offered a draft for the amount of the execu-
tion, on merchants residing in New Orleans,
and asked for time to go for the money; and
these being refused, the property was again of •

Bee ZSi How.

fered for sale, and purchased by Heron & Hew-
itt for the price of $66,000; and thereupon the
sheriff executed a deed to the purchasers, con-
formably to the adjudication.

This sum being insufficient to discharge the
incumbrances on the property, proceedings
were taken for the seizure and sale of other
slaves, which were sold in September, 1851,
and adjudicated to the defendants.

The defendants resist the claim of the plaint-
iff under these titles. The plaintiff objects to
them —

Ist. That Ford, the moAgagor, was dead at
•the commencement of these proceedings, and
that the notice issued to him was nugatory;
that his heir and executrix was not notified at
all, and^id not reside in the Parish of Ascen-
sion, nor have any title Co the plantation at
which the notices of the seizure were left; and
that the plaintiff is not concluded by his pres-
ence at the sale and bid for the property, having
forbade the' sale before the offer, at which the
defendants became the purchasers, was made.

2d. That the sale was irregular and illegal,
in respect of the notice of the seizure, Iheadver
tisements, appraisement, and refusal to allow
the plaintiff time to complete his purchase.

3d. That the fifth district court was not au-
thorized to entertain a suit for a thing in the
Parish of Ascension; and that, if consent could

give jurisdiction, the consent given by Ford in
is mortgage was personal, and binding only in
respect to his own privilege, and did not affect
his heir or her assignee.

The purchasers. Heron & Hewitt, in April,
1852, applied to the District Court of New Or-
leans, under a statute of Louisiana, for a moni-
tion, citing all persons who can set up any right
to ttie property adjudicated, in consequence of
any informality in the order, decree or judg-
ment of the court, under which the sale was
made, or any irregularity or illegality in the ap-
praisements and advertisements, in time or man-
ner of sale, or for any other defect whatsoever,
to show cause why the sale so made should not
be confirmed and homologated, and, after due
proceedings in the premises, that the said sales
be confirmed, homologated, and made the final
judgment of the court.

The executrix (Louisa W. Ford) appeared to
this monition, and made opposition to the ho-
mologation of the sale, and disclosed at large
the objections above specified, and prayed that
the sale be declared null and void, and Uiat the
property might be restored to her possession.

To this opposition Heron & Hewitt replied,
that they were bona fide purchasers at a public
sale by the Sheriff of Ascension, under a writ
from the court, without any knowledge of neg-
lect, or illegality, or want of jurisdiction; that
the opponent had sold her interest in the prop-
erty, and was estopped to oppose the sale by
her acts. They pleaded that the mortgage con-
tained a confession of judgment, and no notice
was necessary to anyone to obtain a judgment;
and assert there is no just cause to deny the
homologation of the sales.

The district court, at the November Term,
1852, entered an order describing the property
embraced in the sheriff's deed, and reciting the
facts relative to the grant of the monition, and
the motion for the nomologation of the sale,
and conclude;

847

S5d^4

SUFRSm OOTTBT OV TRB VKFTSD StATOS

Bsc. Tkbm,

" The court being satisfied, from inspection
of the record and evidence adduced, that all the
formalities of the law have been complied with ;
that the advertisements required have been in-
serted and published for the space of time and
in the manner required bj law; that the prop-
erty has been correctly described, and the price
at which it was purchased truly stated ; and
there bein^ but one opposition filed thereto, to
wit : by A&s. Christopher Ford, it is adjudged
and decreed that said sheriff's sale be confirmed
and homologated according to law, in so far as
the same has not bN^n opposed."

The cause was oontmued in the district
court, upon the opposition proceedings of Mrs.
Ford.

In June, 1858, the district court ref^ered the
judgment upon this opposition, that the sale
was null ana void, for the reasons pleaded, and
condemned the petitioners (Hewitt & Heron) to
costs. An appeal was taken to the Supreme
Court of Louisiana. That court rendered its
judgment in 1854.

Tne court say: the appellants are bona fide
purchasers at a judicial sale of the plantation
and slaves, at the instance of a mortgage cred-
itor, at a far price, which has been paid, and
possession taken, and improvements made.
That, as executrix, Mrs. Ford liad done nothing,
except to obtain probate of the will, and as heir
she has sold her interest to Jeter in the estate,
he covenanting to pay the debts, and that she
gave hinv a power to sell and administer the es-
tate. That Jeter had failed to comply with his
bid at the sheriff's sale, and that Uien the ap-
pellants had become the purchasers, settled with
mortgage creditors, and took possession. * 'Un-
der these circumstances," the court conclude,
" we think it inequitable to permit this sale to
be questioned by the executrix, whom we con-
sider as merely attempting to aid Jeter, her
vendee and agent, in a speculation, at the ex-
pense of these bona fide purchasers, under the
guise of representing a small minority of the
creditors, whom she, personally, and Jeter are
bound to pav. It is obvious, under the facts
above stated, that neither of them, Jeter and
Mrs. Ford, would be permitted personallv to
question the sale, on account of the alleged in-
formalities." And thereupon the decree of the
district court was reversecl, and the opposition
dismissed, reserving to the creditors their right,
if any, to sue for a rescission of the sale. &nk
of Louisiana v. Ford, 9 La. Ann., 299.

The effect of the judgment confirming and
homologating the sale is^dedared in the statute
that authorizes the monition to issue, in favor
of purehasers of property "at sheriff's sales,"
* at those ** made by Uie syndics of insolvents'
estates," at those "made by the authority of
justice," or of courts, and to enable them " to
protect themselves from eviction from the prop-
erty so purchased," and "from any responsibil-
ity to the possessors of the same. It confers
upon the order made by the court upon the
monition, " the authority of res judicata," so as
to operate "al^ a complete bar against all per-
sons, whether of age or minors, whether pres-
ent or absent, who may thereafter claim the
property so sold, in consequence of all illegality
or informality in the proceedings, whether be-
fore or after judgment; " and the judgment of
homologation is to be received and considered

848

" as full and conclusive proof that the sale was
duly made according to law, in virtue of a judg-
ment or order legally and regularly pronounc^
on the interest or the parties duly represented,"
saving and excepting, " that it shall not render
a sale valid made in virtue of a judgment, when
the party cast was not duly cited to make de-
fense."
The judgment of the district court homolo-

Sting the sale concluded all parties except
rs. Ford, who had filed oppoution to the or-
der. Subsequentlv the Supreme Court over-
ruled her opposition, assigning as the reason
that the sale was fair, the purcnasers bona fide,
and the opponent had no interest in the subject
of contest. The plaintiff, whether we consider
him as acting independently or in connection
with Mrs. Ford, and under the " guise of her
name " and character, is affected by these or-
ders.

Bv the very terms of the statute, all the ob-
jections that apply to the manner of conducting
the sale and to the form of the judgment are
cut off by the judgment of homologation.

The only question that the judgment leaves
open is, whether the court that rendered the
original judgment had jurisdiction of the per-
son. But this question was presented to the
district court and the Supreme Court upon the
opposition of Mrs. Ford, in the same manner
in which it is presented to this court. The
facts of the death of Ford, the probate of his
will in the Parish of Ascension before the order
of seizure, the seizure within three days trota
the date of the order, the notice directed to Ford,
and left at the house of the overseer, in the ab-
sence of Mrs. Ford, and after her sale to Jeter;
the presence of Jeter at the sale, the adjudica-
tion to him of the property upon his bid. and
the resale upon his neglect to comply with the
terms of the sale, and the purdiase by Heron
& Hewitt, with the sheriff's deeds to him, were
presented to those courts upon the evidence
that has been submitted to this court

The decision of the Supreme Court of Loui-
siana was, that as executrix, Mrs. Ford did not
really and truly represent the interest of the
creditors of her husband in her opposition, and
that she used that title to protect her own in-
terest and that of Jeter, her agent and vendee
— but that they would not be permitted " per-
sonally to question the sale, on the score of the
alleged irregularities."

The authority of res judicata as a medium of
proof is acknowledged in the Civil Code of
Louisiana; audits precise effect in the particu-
lar case under consideration is ascertained in
the statute that allows the proceeding by moni-
tion. Under the system of that State, the main-
tenance of public order, the repose of society.
and the quiet of families, require that what has
been definitely determined by competent tri-
bunals shall be accepted as irrefragable legal
truth. So deeply is this principle implanted in
her jurisprudence, that commentators upon it
have eaid, the res judicata renders white that
which is black, and straight that which is
crooked. Faeit excuroo rectum, ex albo niffrum.
No other evidence can afford strength to the
presumption of truth it creates, and no argu-
ment can detract from its legal afflcacy.

The jurisdiction of the courts of the United
States, in cases like the present^ is derived ex-

68 U.S.

1859.

OoiLYiB y. Thb Knox Ins. Co.

880-392

clusiyely from the fact that the parties are cit-
izens of different States. The rights of these
parties originate in the law of Louisiana, and
must be ascertained by a reference to the prin-
ciples adopted and administered by her consti-
tuted authorities. We are not invested with
power to review the sentences of her courts,
except in a few cases arising under the Ck)nsti-
tuiion and laws of the United States; nor is it
our province to augment or diminish their value,
or to place any different estimate upon them
than they have in the municipal code of the
State. They are entitled to the same force and
effect here as they have in Louisiana.

The statement of the case of these parties
shows conclusively that the whole subject of
this controversy has been legally submitted to
the tribunals of Louisiana, and that the adju-
dication was in favor of the defendants.

This was the decision of the Circuit Court of
the United States in Louisiana, from whose
judgment this writ of error has been taken. It
remans for us only to affirm that judgment.

Judgment affirmed.

ated-21 Ind., aS7.

ADAM OGILVIE et al., AppU,,

«.
THE KNOX INSURANCE COMPANY,
LEVI SPARKS BT AL..
(See S. C, 2S How.. 380-382)

Stockholders of insurance eomipanies — when liable
to creditors — continuing to act after knowledge
of frauds waives it — cannot avoid payment ^ be
eatue other stockholders not sued.

Where a number of special partners are Incor-
porated to carry on the business of Insurance, the
stock subscribed and owned by the several stock-
holders or partners, constitutes the capital or fund
publicly pledged to all who deal with them.

Where an insurance company did not require
their stockholders to pay in cash more than ten per
cent, of their several shares, but they were allowed
to retain the remaining ninety per cent, in their
own possession, substitutingr therefor other securi-
ties, the ninety per cent, retained by the stock-
holders is as much a part of the capital piedffed as
the cash actually paid in.

When that portion of the capital represented by
these securities is required, to pay the creditors of
the company, the stockholders cannot be allowed
to refuse the payment of them, unless they show
sach an equity as would entitle them to a prefer-
ence over the creditoi*s, if the capital had been
paid in cash.

Those who seek to set aside their solemn written
contracts, by proving: loose conversations, should
ho held to make out a very clear case.

When they charge others with fraud, founded on
such evidence, their own conduct and acts should
be consistent with such a hypothesis.

Stockholders cannot repudiate their contraote on
the allegation of fraud, if, after having a full prior
opportunity to examine for themselves into the af-
fairs of the company, they alleged no fraud, nor
expressed any desire to withdraw their subscrip-
tions.

After they have a full opportunity to know the
situation of the company, its funds and its prop-
erty, and they organlsEe a branch of the corporation
which continues to meet, till a succession of losses
make it apparent that the capital of the company
, will be nearly all required to pay for the losses
^ incurred, when the directors conclude to consider
themselves defrauded, and withdraw their capital
from the company ; held, that this discovery was
made too late, and that a court of equity cannot re-
ceive such a pretense as a valid defense against
the creditors of the corporation.

Bee 22 How.

The objection made to the bill, of want of prop-
er parties, is equally untenable.

If a stockholder is bound to pay his debt to the
corporation, in order to satisfy its creditors, he
cannot defend himself by pleading that the com-
plainants migbt have got their satisfaction out of
another stockholder quite as well.

If the debts attached are sufficient to pay their
demands, the creditors need look no further.

Argued Feb. 16, 1860. Decided Mar. if, 1860.

APPEAL from the Circuit Court of the Unit-
ed States for the District of Indiana.

The bill in this case was filed in the court be-
low, by the appellants, who are judgment cred-
itors of the Knox Insurance Company, against
said Insurance Company and numerous of its
stockholders.

The court below haying entered a decree
dismissinc; the bill, the complainants took an
appeal to this court.

A further statement of the case appears hi
the opinion of the court.

Messrs. B. H. Gillet and S. Judah» for

appellants:

1. Exceptions to the answer of Cullum,
which was admitted by the other defendants,
were well taken and should have been allowed.
The bill stated numerous facts distinctly, and
by interrogatories called upon the defendants
for explicit answers, which they did not give.
Among other questions, they were asked if they
subscribed for and took stock in the Company.
Instead of staling they did or did not, they
state facts, and say they did not unless those
facts amounted to a sul)8cription.

2. The witnesses, Cullum, BavitE and
Schwartz, were parties to the record and in-
terested, and their depositions must be sup-
pressed.

2 Daniel, Ch. Pr. ; Whipple v. Lansing, 3
Johns. Ch., 612; Lingan v. Henderson, 1
Bland's Ch.. 266; BarreUY. Gore, 3 Atk., 402;
Dixon V. Parker, 2 Ves.. 219; Clark v. Van
Reimsdyk, 9 Cranch, 153; DeWolf v. Johnson,
10 Wheat., 367; Scott v. JJoyd, 12 Pet.. 145;
Stein Y. Bowman, 13 Pet, 209, 219; Bridges v.
Armour, 6 How., 91, 95.

8. Whore one of two innocent parties must
suffer by a fraud, the one who had full oppor-
tunities to inquire into the facts and protect
himself, must suffer instead of him who had
no such opportunity.

In the present case, those called upon to sub-
scribe for the stock, if they had chosen so to
do, might have ascertained the amount of stock
previously subscribed, and the amount of east-
ern exchange on hand owned by the Company.

4. The subscriptions and obligations of the
defendants are not void or voidable, even if
it shall be admitted that the facts set up in
their answers are true.

The defendants do not aver that the Com-
pany authorized the false representations com-
plained of, or that that they approved of them
after they were made. Nor do they aver that
they repudiated the transaction as soon as they
learnea the true state of Uiings. Nor do they
state that they offered to restore things to their
original condition. They set up that on the
25th of June, 1851, more than a year after-
wards, they would have nothine more to do
with the Company, nor would they pay their
notes or bills. This was about a year after
they knew of the heav}' losses. In order to de-

849

880-892

BUFBBIIB Ck>UBT OF THB UkITKD StATBS.

Dec Terx,

feat their liability, thev must connect the Com-
pany with the fraud alleged.

" It (a corporation) is not, however, responsi-
ble for unauthorized or unlawful acts, even
of its officers, though done colore officii.**

ADg. & A., pp. 250, 251; Thayer v. Boston,
19 Pick., 516, 517.

5. The fact that from May, when the true
amount of the Y ixfcennes stock must have been
known by the Jefferson ville stockholders, to
the middle of August, no complaint was made
on that account, is conclusive evidence that the
defendants did not consider themselves injured
by that fact.

6. The objection, in May, by the Jeffersonville
stockholders, to an increase of theVmcennes
stock before the dividend expected in July, is
conclusive that they were not decieved or dis-
satisfied with the amount subscribed at that
place. They were satisfied then, and are bound
to be so now.

7. The fact that no compliunt was made
concerning the quantity of stock subscribed at
Yincennes, until after the Jeffersonville stock-
holders were called upon to pay the $50,000
loss at Owensburg, it is conclusive evidence
that it was the losses, and not the limited
amount of stock taken at the former place> that
occasioned the dissatisfaction.

8. If a fraud had not in fact been commit-
ted, it was the duty of the party promptly and
distinctly to repudiate and rescind it, and re-
store things to their original condition. In the
present case, the subscribers waived the right
to rescind, if they ever had the right, and could
not afterward resume it, especially to the injury
of innocent third persons or creditors.

See Mason v. Bovet, 1 Den. , 69 : 2 Pars. Cont.,
278. 279; WTuiaton v. Baker, 14 Barb., 594;
Munn V. Worrall, 16 Barb., 221.

The defendants did not conform to the rules
laid down in these authorities.

9. The meeting and action of the Jefferson-
ville Board from May to August, after they
knew the true state of the subsoiptions, is con-
elusive evidence that they ratified and approved
their subscriptions and obligations, and they
are estopped from disputing either.

10. No fraud conmiitted by the members of
a corporation upon one another, can impair
their respective liabilities or that of the com-
pany, *8o far as third parties, doing business
with said corporation and trusting it, are con-
cerned.

As to the alleged misrepresentations, the
rules concerning such representations are :

Ist. The fact represented must be material.

2 Pars. Cont., 266. 267.

2d. It must appear that the defendants did
rely, and had the right to rely, on the repre-
sentations.

2 Pars. Cont., 270.

8d. The representations must be contempo-
raneous.

Story, Agency, sec. 187.

4th. It must be in the peculiar knowledge
of the party.

But admitting the charge of fraud to be
proven, and that defendants relied on the repre-
sentations, the defendants cannot protect them-
selves by it. It is too late.

2 PafB. Cont., 278; AfassonY. Bovet, 1 Den.,
69; 2 Pars. Cont.. 278, note S; Wheaton v. Bo-

860

ker, 14 Barb., 594; Munn v. WorraU, 16 Barb.,
221.

12. If these defendants might set up this
fraud against the Company or their co-stock-
holders, they cannot set it up against the cred-
itors of the Company. When one of the two
innocent parties must suffer by the fraud of a
third party, he of the two who afforded the
means or cave the credit, must bear the loss.

Story, Agen.. sec. 127, pp. 142, 148. and
note 1 ; Story, Eq. Jur., sees. 884, 888; HiomM
V. HoUam, 18 Eng. L. A £q., 596.

18. .It is a rule, that when a man votes at a
corporate election or acts as an officer of a cor-
poration, he is estopped to deny the validity of
the organization, or of his subscription.

Aug. & Ames, Corp., sec. 532, p. 518.

Mr. R. Crawford, for appellees:

1. The plaintiff's exceptions to the answers
to the interrogatories, are not well taken.

Whether the Insurance Company had been
organized or not, and had authority to receive
subscriptions, involved matter of law as well
as of fact.

2. The defendants were not stockholders of
the Insurance Companv. They did not sub-
scribe to the capital stock, as alleged in the com-

glaint. The charter of the Insurance Company
a public act, and this court will notice it.

The 8th section provides that books for the
subscription of the capital stock should be
opened at Vincennes, and it should be lawful
for any person to subscribe for any number of
shares. To become a subscriber, required the
writing of the name to such a book, or to some
paper, which expressed in substance that the
party agreed to take a given number of shares
of stock.

Thames Tunnel Co. v. Sheldon, 6 B. & C.
841; Fox V. Clifton, 6 Bing., 776; Oaivanizjed
Iron Co. V. Westcby, 14 Eng. L. & Eq.. »86;
Tracy v. Tales, 18 Barb.. 152; 2. & B. B. R.
Co. V. Warren, 18 Barb., 810; 14 N. Y., 574.

Giving their notes and bills did not m&ke
them subscribers or stockholders.

The notes and bills were without considera-
tion, and cannot be enforced. There was do
mutuality.

Lees V. Whiteomb, 5 Bing., 84; Sykes ▼.
Diieon,^ K. & E., 698.

The defendants never afterwards became
stockholders, by accepting certificates of stock.

14 N. Y.,588; 18 Barb., 152.

The defendants never did any acts which
estopped them to deny that they were stock-
holders. They never voted as such, or did
any corporate act, or in anv way whatever held
themselves out to the world as stockholders.

8. The notes and bills described in the com-
plaint were obtained from the defendants by
fraud of the Insurance Company's agent, and
were repudiated by them as soon as they were
informea of the fraud.

The evidence upon this point, the depositions
of Cullum, Schwartz, and Savitz, is objected
to on the ground that the witnesses were par-
ties to the suit, and that they were interested.

It is a familiar and unquestioned rule In the
books of practice and of evidence, that one de-
fendant in chancery may be examined by a co-
defendant, if not interested in favor of the latter.

2 Daniel Ch. Pr., 1086, 1048; 1 Barb. Ch.
Pr., 261; 1 Hoff. Ch. Pr., 485; 1 Greenl. Ev..

68 U.S.

1859.

Ogilyib v. The Knox Tub, Co.

880-892

sec. 818; see, also, 3 P. Wms., 288; 2 Yes. &
B., 405; 2 Cox., 418; 14 Sims.. 682; 1 Wood. &
M.. 90; 10 Cone, 121; 2 Johns. Ch., 550; 6.
Johns. Ch.,204: 2 Cow., 129; 5 Paige, 251; 7
Paige, 457; 1 Bland., 608; 1 Ired. Ch., 92; 2
McCord, Ch., 185; 12 Ala., 896; 7 J. J. Marsh,
1; 6 Blackf., 221; 4 Scam., 135.

The plaintiffs have objected that if Carnan
did practice this fraud upon the defendants, it
was his own wrong only; the Insurance Com-
pany did not authorize it, nor ought it to be
affected by it. It is true it had the alternative
to reject or adopt the unauthorized acts of its
agent. If il had rejected them, there would
have been no contract between it and the de-
fendants. But it chose to adopt them, and
therefore it took them tainted as they were.

Chit. Cont., 679; 2 Pars. Cont.. 276 and n.
(a); 1 Story, Eq. Jur., sec. 256; Doggett v. Mm-
er»on, 3 Story, 735; Attoood v. SmcUl. 6 CI. &
F., 448; Mason v. Crosby, 1 Wood. <& M., 842;
Jeffreys. Bigelow., 13 Wend., 518: Swatara R.
R. Co, V. Brune, 6 Gill, 41 ; Crump, v. U. 8.
Mining Co., 7 Gratt; 852.

It is also objected that these misrepresenta-
tions were not made at the time when the notes
and bills were given, and therefore are not a
good cause for avoiding them. As to some of
the defendants, it appears expressly that they
gave their notes at the time of the representa-
tions; but this is immaterial.

No man can publish a falsehood to-day, and
to morrow contract with an innocent victim
and hold him bound.

See Crocker v. Lewis, 8 Sumn., 8; ^ith v.
Badeock, 2 Wood. & M., 246; 8 Bing. N. C,
97; 26 Eng. L. &Eq., 129.

But the plaintiffs contend that if the fraud
has been ever so strongly proved, and it has
not been waived, and might be a good defense
in a suit brought by the Insurance Company,
yet it is no defense against them. They claim
to have a peculiar equity.

Yet their complaint alleges that the defend-
ants severally made the subscriptions, notes
and bill stated in it, and the issue joined ; and
the very question, therefore, to be tried, is as
to their vaJidity. It follows that the plaintiffs
must prove them to be valid and binding on
the defendants, or they do not maintain the
issue. If the transactions are void on account
of fraud, then there is legally no subscription,
note or bill.

In effect, the plaintiffs ask to be substituted
in the place of the Insurance Company, and
to be permitted to enforce the payment of debts
which it has wrongful ly neglected to enforce.
If there is no valid debt due from any of the
defendants to the Insurance Company, there is
no matter alleged in the complaint on which
the plaintiffs can recover. The plaintifb can
acquire no greater rights than it had, and where
it had none, they acquire none.
• I^de V. Lt/nde, 4 N. Y.. 887; In matter of
Howe, 1 Paige, 125; Mech. Bank v. JT. T. dN.
H. R. R. Co., 13 N. Y., 599; RobvrU v. A\h.
iSb W. Stock R. R. Co., 25 Barb., 662.

4. There is an utter failure in the proof of
the main corpus of the plaintiff's case. The
complaint alleges that they were severally
creditors of the Insurance Company, and had
obtained judgment against it, and returns of
**no property."

See 22 How.

The answers deny all knowledge of the mat-
ters alleged, and the record contains no proof
of them.

5. Necessary parties are wanting to the ac-
tion. This objection was taken in all the an-
swe^s.

In this kind of cases, each defaulting stock-
holder is liable pro rata only, with all the other
defaulters, for his portion of the unpaid sub-
scription which may be necessary to satisfy the
plaintiff's debts and costs.

Mann v. Pentz, 8 N. Y., 415; Bank v. Igle-
ha/rt, 6McL., 568.

The decree must be several against the de-
fendant for his separate liability ; therefore, in
order that the relative share each has to pay
may be ascertained, all the defaulting stock-
holders must, as far as possible, be brought be-
fore the court.

8 Com., 415; 6McL.,568; Be WoI/y. Mal-
let, 2 J. J. Marsh., 401; Crease v. Babeock, 10
Met., 525; Caldwell y. To^^ar^ 4 Pet., 190.

Where the parties are so numerous as to
render it very inconvenient, the court may
allow the case to go on with only a part of
them before it.
' But this is an exception to the rule, and it
is for the court and not the plaintiff's coun-
sel, to decide whether persons proper to be
maide defendants are to be left ont under this
exception ; and, therefore, the reason must be
stated why they are not made parties.

MaHin v. McBride, 8 Ired. Ch., 581; OH-
liam V. Cairns, Breese, 124.

In the present case, the defendants are not
very numerous, and nearly all of them are
shown to be within the jurisdiction of the
court, and no excuse is offered, except in one
case, for not making all of them defendants.

M. Justice €MeF delivered the opinion of
the court:

The complainants in this case are judgment
creditors of the Knox Insurance Company.
The numerous other defendants are stockhold-
ers of the Company, and are severally charged
as debtors to it, for the unpaid portion of the
stock subscribed by them.

The Company is insolvent, or at least is un-
able to pay its creditors, without calling in the
capital subscribed and secured, but not actually
paid in cash. This it has failed or refused to
do. This bill is filed to compel these stock-
holders or debtors to the Corporation to pay
the amount of their debts, in order that the
creditors of the Company may obtain satisfac-
tion.

The bill was taken pro confesso as against the
Corporation. The other defendants, being cor-
porators, are consequently concluded as to the
averments of the bill affecting them as such.
As stockholders who have not paid in the
whole amount of the stock subscribed and
owned by them, they stand in the relation of
debtors to the Corporation for the seventl
amounts due by each of them. As to them,
this bill is in the nature of an attachment, in
which they are called on to answer as gar-
nishees of 'the principal debtor.

Where a number of special partners are in-
corporated to carry on the business of insur-
ance, the stock siA^scribed and owned by the
several stockholders or partners constitutes the

851

880-392

SUFBBMB COUBT OF THE UXUTRD StATBS.

Dac. Tsvm,

capita] or fund publicly pledged to all who
deal with them. Insurance companies or cor-
porations, unless they have the privilege of
using their capital for banking purposes, seldom
require the actual payment of it all in cash.
Contracts of insurance or indemnity, though
not literallv '* gaming contracts," are, never-
theless, in the nature of wagers against the hap-
pening of a certain event. The calculation of
chances is greatly in favor of the insurer. In
a large number of policies, it is but reasonable
to expect that the amount of premiums will
exceed that of the losses. The insured are
thus made to pay one another, and with com-
mon ^bod fortune afford an overplus to make
a dividend for the insurers. Hence the Knox
Insurance Company, like others of the same de-
scription, did not require their stockholders to
pay in cash more than ten per cent, of their
several shares. They were allowed to retain
the remaining ninety per cent, in their own
possession, substituting therefor their bonds, or
other securities. Thus every stockholder became
a borrower from, and debtor to, the capital
stock of the Company. U in the course of
events the chances were favorable, a dividend
of twenty per cent, oft capital would give a
profit of two hundred on the money actually
paid out by them. On the contrary, if they
were adverse, the capital -represented by se-
curities must necessarily be paid in to satisfy
the just debts of the Company.

The ninety per cent, retain^ by the stock-
holders is as much a part of the capital
pledged as the cash actually paid in When
th^t portion of the capital represented by these
securities is required to pay the creditors of
the company, the stockholders cannot be al-
lowed to refuse the payment of them, unless
they show such an equity as would entitle
them to a preference over the creditors, if the
capital had been paid in cash.

Let us now examine their defense, and see
if they have established such an equitv.

They do not deny that they paia the ten
per cent., gave their securities for the balance,
and have received their certificates for their
several shares af stock; but they contend Uiat
they are not bound to pay these securities, be-
cause the agent of the Corporation, who took
the subscriptions of stock, made certain rep-
resentation concerning the state of the affairs
of the Corporation, which were not true; and
as a consequence thereof, they are not bound
to pay these securities.

The numerous defendants, with some imma-
terial variations and qualifications, adopt the
answer of their co-defendant, Collum, which
we shall give verbfiHm from the record, to show
we have not misstated or mistaken the nature
of the defense set up.

"And, by way of defense to said suit, s'd
Collum alleges that just before he save s'd note,
accepted s*a first bill, Robert N] Caman, an
a^nt of said ins. company, came to Jefferson-
ville to procure persons there to give notes and
bills for stock in s'd ins. company; and in order
to induce said Collum to give his s'd note, and
accept s'd first bill for such stock, s'd Caman,
as such agent, then and there falsely and fraud-
ulently s'd and represented to s'd Collum, and
in his hearing, that stock in s'd ins. company to
the amount of seventy five dollars had then

862

been subscribed for at Yincennes. and on the
Wabash river, and all of s'd amount had then
been paid or secured as the charter of s'd in-
surance company required. S'd Collum did not
then know, nor then have the means of know-
ing, to the contrary of s'd representations, and
he fully believed them to be true, and with that
belief he gave his s'd note, and accepted s'd two
bills for stock in s'd ins. company ; and if he had
not fully believed s'd representations he would
not have given said note nor accepted s'd bills,
or either of them. At the time s'd representa-
tions were so made, and s'd given ana s'd first
bills accepted, there had not been more than
twenty- five thousand dollars of stock in s'd ins.
company subscribed for and paid and secured,
as s'd charter required, at Yincennes, on the
Wabash river, which said Caman then well
knew. Said Caman also, at and just before
s'd Collum made his s'd note and accepted his
s'd first bill, represented to him that s'd ins.
company then had $40,000 of funds on hand,
mostly in Eastem exchange, which they could
not dispose of at Yincennes. and they wished
to get stockholders at Jeffersonville, so as to
have an officer of s'd insurance company there,
and they would then send those funds Uiere to
be sold and used. Said Collum did not then
know, and had no means of knowing, to the
contrary of s'd representation, but he believed
it, and it was a strong inducement with him to
make his s'd note ana accept his s'd bills; yet
he is now informed and believes said represent-
ation was grossly fidse. and that s'd ins. com-
pany did not at that time have, and had not at
any time, had that sum or anything like that
sum of money on hand, and mostly m Bastern
exchange, which they could not dispose of at
Yincennes."

Caman, who was examined as a witness, de-
nies the charges made in this answer, and de-
clares that he was not authorized by the Com-
pany to make such representations, and did not
make them.

To establish their defense, several of the de-
fendants themselves were called as witnesses,
alleging that, as their responsibility was sev-
eral, and not loint, each one may be called as a
witness for all the rest. Much of the argument
of this case has been expended on the question
of the competency of these witnesses to testify
in their own case; but we do not think it nec-
essary to decide it, as there are other facts in
the case which show clearly that the matter
pleaded cannot affect the relative rights of the
parties in the case, assuming it to be true.

Those who seek to set aside their solemn
written contracts, by proving loose converaa-
tions, should be held to make out a very clear
case; and when they charge others with fraud,
founded on such evidence, their own conduct
and acts (which speak louder than words)
should be consistent with such a hypothesis.
Assuming the fact that Caman did make th^
representations charged, what was the conduct
of these Jeffersonville stockholders, who now
seek to repudiate their contracts on the allega-
tion of fraud? After having a full opportunity
to examine for themselves into the affairs of
the Company, they alleged no fraud, nor ex-
pressed any desire to withdraw their subscrip-
tions; on the contrary, when fully informed
that the amount of stock subscribed at Yin

63 U. 8.

JHM.

Usi

r> Staibs

cenoes did oot equal that taken at JeBersonrllle,
and when nn offer wag made to increwe the
Vincennes subBcriptioiiB, bo aa to equal those
at JeOeraouvllle, the defcodanlB and tboBe who
acted with them objected, aod inBiatcd that the
lower the amount of stock the b'Fher would be
tbe divldeod, and consequently it liad better
not be Increased till after the Drat dividend of
tweoty-flve per cent, had been made.

2. After the defendants had a full opportu-
nity to know the siiuation of the Company, ita
fundB and its property, they organized at Jeffer-
son villi' a branch of the Corporation, having resi-
dent directors M that place. This Board met
from time (o time, through tbe months of April,
Ha^. June, July, and up to tSCh Auguet, 1630.
While there was a prospect of a dividend of
250 per cent, on the amount of cash paid in,
their eyes were shut to the deceit supposed to
have l>een practiced on them. In the month of
Hay, a fire at Owennville, Kentucky, was re-
potted, in which the Company lost almut $50,-
000. This seemed to injure tbe prospect of the
large dividend; yet even then it was uoi bo
clearly perceived that the defendants were de-
frauded.

The directore at Jefferson ville, who repre-
sented their interests, continued to meet till
the middle of August, and till a succeasion of
tosses made it apparent that the capital of the

:, the directors at JeSersonville. at
„ _.. .,,. , "After taking
time to consider what was best to be done,"
concluded to consider themselves defrauded
and withdraw their capital from the Company.

We need not cite authorities to show that
thia discovery was made too late, and that
court of equity cannot receive such a pretence
as a valid defense against the credltqis of this
Corporation,

II. The objection made to the bill, for want
of proper parties, is equally untenable. The
creoitora of the Corporation are seeking satis*
faction out of tbe aaact* of the Company to
which tbe defendants are debtors. If tbe debts
attached are su<!lcient to pay their demands,
the creditors need look no further. They are
not bound to settle up all the affairs of this Cor-
poration, and the equities between ita various
stockholders or partners, corporators or debt-
ors. If A is bound to pay his debt to the Cor-
poration, in order to satisfy its creditors, he
cannot defend himself by pleading that these
complainan'.a might have got their satisfaction
out of B quite as well. It Is true, if it be nec-
essary 10 a complete satisfaction to the com-
plainants, that the Corporation be treated as an
juBOlvent, tbe court may appoint a receiver.
with authority In collect and receive all the debts
due to the Company, and administer all
assets. In this way, all tbe other stockholders
or debtors may be made to contribute.

For these reasons, we are of opinion that the
decree of the circuit court should be reversed,
with costs, and that the record be remanded,
with iOstructions to that court to enter a de-
cree for tbe complainants against the respond-
ents severally, for such amount as it shall ap-
pear was due and unpaid by each of them on
their shares of the capital stock of the Enox
Insurance Company, and lo have Buch other
Hee 22 How. U. &. Book 10,

,..,_ , 3..4B,B2i »Sn.

L D. B-ifll; lOSn. S.. IH; SAbb. tr.

■, Kiw„37I,378, 4IS;iaBttnk.Ref-,

(. Retr.. fi3S: S BiaB..E4T: 3 Bias., 13»,

tri, 40I, wh: 4 illfls., 871; i Dill-, 438; 8 Dill., ti03: 4

cim., 510, 6ii,:i;i. aw. saa, mo, wb; i PHpp.,5e8: 1

Woods, 4((7; 3 .VtcC, 408 ; m Am. Rep,. ISBrtT Ili-,6Sn.

THE UNITED STATES, AppU.,

HENRY P. TESCHMAKER, JOSEPH P.
THOMPSON, GEORGE H. HOWARD,

AND JULIUS K. ROSE,

(See a. C„ m How., ass-tos,)
]Ut<ird evi(Unoe of Mexican ^mnt thould be pro.
dueed,orilsabtenuaecounttdfeT — oceupa&on,
next bett evidence — antedating grant.

Raising u

Bad olber stock. Ci

laws of Mexico,

n title,

le clalmi

to Its vaUdltr, and
lurden of proaucinB
part; Is capable, of

the fullest proof of vhlch llie part; Is

"10 ([enulneness of the Kraat.
Record evidence should be produced, or Its ab-
•nae accounted for to the sadsf action o( the court.
The iteiiulneDMB of tbe offlolal slifoaturiv to Che

paper title alone, can never be regarded as Batis-

Tho record proof In. BPQorallyspeahlns, the high-
est. Possession and occupation of some duration,
permaneooy, and value, are neit entitled to weight.

At least.saClafoctory evidence should be required,
to make tho antedating of Moiicsn KTHUt Irrecon-
cilable with the proof ; othervlse, there can be no
protection agalUBt ImposlUon and fraud In these

Argved Jan. rj, 1880. Decided Mar. IS, 1860.

APPEAL from the District Court of the Unit-
ed States for the Norihotn DUtrict ot Cali-

The history of the case and a statement of
the facts appear in the opinion of the court.
Me»»Ft. J. S. Blkck, Atty-Qen., and E.
[. Ststntoti, for appellants:
The grant, if mude a' -" -

it all, was made without

registry. Arce's cerliflcate (or the certificate
with bis name to it), thnl note bad beea taken
of this title in the proper book, is false. The
proper book is here, and it contains no such
thing. Thuco is not a vestige or trace of this
title,or anything like it, to be found among alt
tbe records of tbe department. The title was
never produced, nor its existence publicly as-
serted in any way whatever, before the Kith

fore a notary. The deed from Juan to Saiva-
dor Vallejo is dated Dec. 80, 1649, but it is
not acknowledged or recorded ; nor does it ap'
pear ever to have been seen by anybody but
tbe parties.

Salvador Vallejo and Carillo, their brotber-
In law, swear that there was a sort of possession
from 1M3 or 1843, with some improveroenla
which the former witness says cost a great detl

U 858

892-406

SUPHIAMB COOBT OF THB UniTKO StaTM.

Dbc. Trbm,

of meat and spunk. But they do not say, and
there is no reason to believe, that the title now
set up was exhibited, or the land claimed under
it. Juan Castenada says the possession was
not taken until after the ^rant in 1844 or 1845.

1. The irrant is illegal for want of a petition,
map, inquiry, &c.

2. It is not proved, because a arrant pro-
duced from the private custody of the claim-
ant, without any record of it among the ar-
chives, is no grant at all.

3. It is false, forged, fabricated.

If it had been really made by the Govern-
ment at the time it bears date, why was it not
recorded? Why was the false note of Arce
placed at the foot of it?

The bad character of the Vallejos, as well as
of their principle witnesses, renders it extremely
probable that all the papers, including the pe-
tition for license to occupy, the license itself,
and the pretended grant from the €k>vernor,
are sheer fabrications, fraudulently got up long
after the change of government.

The chief of the Vallejos (General Mariano)
was a professional witness, until his credit run
down so low that he was no longer worth call-
ing In the case of Lueo v. The United States,
«4 U. S. (28 How.), 515, it was proved that he
had forced a grant, and the claim under it was
rejected on that ground alone.

Juan Castenada is a well known professional
witness. So is Francisco Arce, who falsely
certifies that this grant was recorded in the
proper book.

The grant is dated in September, 1844. That
was the very time at which the Vallejos were
banding themselves and their followers against
MicheJtorena. to drive him from the country,
and he knew it. It is not probable that he was
making grants of valuable lands to them at
such a time.

Mr. R. H. Oillet. for appellees:

Material facta established by the evidence in
the record:

First. The grant was made by Governor
3Iicheltorena to Salvador and Juan A. Vallejo,
Sept. 5, 1844, for the premises in question.

Second. The grantees settled upon and oc-
cupied the land granted.

[Counsel reviewed the evidence in the case on
this point, and referred to the following cases:
Vaca 69 U. S. (18 How.), 556; Sutherland,
60 U. 8. (19 How.), 868; FrSrmmi, 58 U S.
(17 How.). 542; and said these three cases must
be overruled or the present grant must be con-
firmed.!

Third. Judicial possession was not given, be-
cause the magistrate applied to was afraid of
the Indians.

Fourth. The United States offered no evi-
dence in this case on any point, by way of con-
tradiction, or explanation, or otherwise: but
left that of the claimants wholly unquestioned.
^ Sixth. No objection was raised before the
board, except that the conditions subsequent
had not been performed, and that the locali-
ties and boundaries were not given with suffi-
cient definiteness, and these were removed by
testimony taken in the district court.

But two questions were presented to the
district court, and they were questions of fact
upon which the claimants made full proof,
Htul the United States offered no evidence at all.
3.U

ArgumeirU,

1. No additional evidence can be introduced
on an appeal to this court except in admiralty
cases

9 U. 8. L., 683; 1 U. 8. L., 84; 2 U. 8. L..
244; 61 U. 8. (20 How.). 261.

2. No question can be be raised and decided
on appeal wSich was not raised below.

Larkin's case, 59 U. 8. (18 How.). 561 : 1
Barb. Ch. Pr., »96; Ringgokra case, 1 Bland,
Ch., 21; Chamley v. Lord Diinmny, 2 8ch. &
L.. 712; 2 Hoff. Ch. Pr., 58; Prankland v. Mc-
Ousty. 1 Enapp, 274; Barnes v. Lee, 1 Bibb,
526; Morgan v. Currie, 8 A. K. Marsh.. 294.

8. When an equitable right is once vested
unaer a grant by a governor, it cannot be de-
vested, except by the action of the govern-
ment upon a denouncement by a third person.

Fremonfs case 58 U. 8. (17 How.), 567;
Beading*8 case, 59 U. 8. (18 How.), 6.

4. Confirmation by the Departmental Assem-
bly is not necessarv, in order to confirm a
California grant made by a governor.

It was the duty of the governor and not of
the grantee, to present it for confirmation.

See Fremont v. U, S., 58 U. 8. (17 How.),
542, 568; Gnu Cervantes* case, 59 U. 8. (18
How.). 553; Larkin^s case. 59 U. S. (18 How.),
562; Beading's case, 59 U. S. (18 How.). 7.

5. When an officer of the Mexican Govern-
ment, having the power to make grants, exer-
cises that power so as to create the reasonable
belief in the mind of the grantee that he re-
ceived the valid grant, and he takes possession
under it. such grant, whether made after
compliance with all legal formalities or not
confers an equitable right, which this court la
bound to confirm.

CT. 8. V. Sutter, 62 U. 8. (21 How.), 178.

6. By the laws, usages and customa of Mex-
ico, a ?rant is valid, whether the preliminary
formalities were observed or not.

The Act of 1851 (9 U 8. L., 638. sec. 1), un-
der which these proceedings were had, provides
that the Board and ports shall be **govemed bj
the Treaty of Guadaloupe Hidalgo and the law
of nations, the laws, usages and customs of the
government from which the claim is derived,
the principles of equity and the decisions of the
Supreme Court, as far as they are applicable.*'

The grantees* rights are the same under the
treaty and the laws of nations. Whatever rights
they had, whether perfect or imperfect, full
ana complete or otherwise, are protected under
both.

In equity, all rights, whether legal and per-
fect or equitable and imperfect, are protected
and can be enforced. Congress declared that
those having rights of any Kind, should have
all the advantages that a court of equity could
decree them. The rules applied in equity cases
should apply in these. It is a well settled rule,
that a court of equity cannot apply its power
to confirm or enforce a forfeiture, while there
is another which requires it to exert them
whenever practicable, to prevent forfeitures,
and to set them aside, and to relieve against
them in all proper cases.

In these land cases, except where the title is
a strictly legal one, the whole case is an equi-
table one, and the court deals exclusively in
equitable principles and enforces them.
_ The claimant shows tha^ he has received

68 U.S.

1869.

United States y. Tebchmaksb.

892-406

eome sort of title under the government, and
oalls upon the court, under the Law of 1851, to
confirm it. Here he is met by claim of forfeit-
ure, and in the exercise of equity powers, the
court is requested to enforce it. The law is too
well settled that this cannot be done, to require
the citation of authorities.

In the present case, thegrant cannot be ques-
tioned. But it is objected there were formali-
ties usually observed, which were omitted. If
these were required by positive law to confer
a legal title, they are not required to create an
eqitable one.

No one will contend that an equitable right
is invalid, because it was not acquired in me
same manner that is required to vest legal
rights; because if that were so, an equitable
right could not be acquired at all, for all rights
would then be legal rights. The very object
of a court of equity is, to relieve in those cases
which are defective under the strict rules of
law.

Mexico did not sell her lands.

She gave them away to have them used, and
thev were principally used for raising horses
ana cattle. This very grant was applied to
that purpose, as soon as it was safe to put cattle
and horacs there, and as early as Fremont took
possession of the Alvarado grant. The gov-
ernment got all it expected from this or any other
grantee. Could Governor Micheltorena, the
day after making this grant, have declared it
null and void, and have taken the land from
the grantee and made it part of the public do-
main? Clearly not. In Beading's case, 59 U.
S. (18 How.), 1-7, this court said: "In other
words, from our reading of these decrees, the
j^overnor could not either directly recall a grant
made by him, or indirectly nullify it when it
had been made conformably with them, and
the laws and regulations.*' If he could not,
then the grant must be held to convey an in-
terest which has not been, and cannot now be,
taken from the grantee. When Mexico ceded
to us, the power to take away a grant by de-
nouncement ceased.

7. It is to be presumed that Governor Mi
cheltorena performed his duty in relation to the
necessary preliminaries to this grant, till the im-
peaching party proved the contrary.

See the cases of California land grants al-
ready cited; PercUta^s case; U. 8. v. Clark, 8
Pet., 436.

The United States are estopped from deny-
ing the fact of the petition, &c., by the pre-
vious recital of their grantor in the grant, to the
claimant, which was prior to theirs.

9. The regulations specifying preliminary
eteps to be taken in applications for grants, are
merely directory, ana may be dispensed with
without vitiating the grant.

The regulation of l^ov. 21, 1828, is as fol-
lows:

**2. Every person soliciting lands, whether
be be an impresario, head of a iamily, or single
person, shall address to the governor of the re-
spective territory, a petition setting forth his
name, country, profession, the number, descrip-
tion, religion, and other circumstances of the
families or persons with whom he wishes to
colonize, describing as distinctly as possible by
means of a map, the land asked for."

There is no provision declaring that the grant

See 22 How.

shall be invalid if there is no petition to the
governor in writing, specifying the various par-
ticulars thus enumerated. It is not probable
that in all the cases confirmed by this court,
there is one where the petition has conformed
in every particular with this regulation. By
the regulation, a map is just as essential ns the

gitition. It is a highly important document,
ut it appears only in a part of the cases before
this court. It was not shown in EUehie, Ar-
g^uUo, or Peralta*s case. Beading or Fossat or
Fremonfs case. On the contrary, in the latter
case the petition showed there was no map.and
an excuse was offered for not presenting. This
court held that the map was not essential, and
confirmed the grant without it. In 58 U. S.
(17 How.), 561, the Chief Justice said: ** Ac-
cording to the regulations for granting lands, it
was necessary that a plan or sketch of its lines
or boundaries should be presented with the pe-
tition. But in the construction of these regula-
tions, the governors appear to have exercised a
discretionary power to dispense with it under
certain circumstances."

Now, if the governor can dispense with one
condition, precedent or requirement of the regu-
lation, he can with another, without rendenng
the title invalid in equity. The omission here
is no greater than in Fremont^ s case, and the
same indulsence must be shown.

In The V. 8. v. 8utherland, 60 U. 8. (19
How.), 868. 864, this court said:

" In construing grants of land in California,
made under the Spanish or Mexican authorities,
we must take into view the state of the country
and the policy of the government; it was the
interest and policy of the King of Spain,. and
afterwards of the Mexican Government, to
make liberal grants to those who should engage
to colonize or settle upon them.''

10. Conditions subsequent, if not performed,
do not render the sprmt void, nor authorize the
government to forfeit the grantee's right for its
own use.

Fremont, Beading, and Larkins' cases, already
cited.

Conclusions:

I. The genuineness of the grant has been
fuUv proved.

11. All the conditions subsequent thai; were
to be performed by the grantees, were per-
formed, such as possession, Duilding, and culti-
vation.

III. The place and boundaries are definite,
and capable of location, and have been actually
located.

IV. Every question raised by the district at-
torney, in the court below, was met and an-
swered by conclusive%vidence.

It follows that the clj^im must be confirmed.

Mr. Justice Nelson* delivered the opinion
of the court:

This is an appeal from a decree of the Dis-
trict Bourt of the United States for the North-
ern District of California.

The case involved a claim to sixteen square
leagues of land known by the name of ' * La
Laguna de Lup Yomi," situate north of Sono-
ma, in the County of Napa, California. It was
presented lo the Board of Land Commissioners
on behalf of the appellees, who derived their
title from the two brothers, Salvador and Juan

8a6

892-406

BUPSBMS Ck>UBT OF THB UHTTED StATBS.

Dbc. Tsbm,

Antonio Vallejo, claiming to be the original
grantees of the Mexican (Government. The
Board rejected the claim, but, on appeal to the
district court, and the production of further
evidence, that court affirmed it.

The first document produced is a petition of
the two brothers, S. and J. A. Yallejo, to the
senior commandant-general and director of the
colonization of the frontiers, for a grant of eight
leagues of land each, reciting that they vrere
desirous of establishing a ranch in the Laguna
do Lup-Yomi, situate twenty leagues north of
this place (Sonoma), which tract is unculti-
vated, and in the power of a multitude of savage
Indians, who have committed and are daily
committing many depredations; and being sat-
isfied that the tract does not belong to any cor-
poration or individuals, they earnestly ask the
grant, offering to domesticate the Indians, and
convert them by gentle means, if possible, to a
better system of life. Salvador Yallejo adds,
that being in actual service in quality of cap-
tain of cavalry, and not having received his
pay, he proposes to apply $2,50G out of his pay
for his portion of the land. This petition was
dated at Sonoma, October 11th, 1888.

Under date of March 15th. 1839, the senior
commandant-general. M. G. Yallejo, a brother
of the petitioners, acc(*des to their petition so
far as to permit them to occupy the tract, but,
for the accomplishment of the object, they must
hasten to ask a confirmation from the Depart-
mental Government, which will issue the cus-
tomary titles; and, at the same time, they must
endeavor to reduce the wild nature of the In-
dians, assuring them that the government
wishes a treaty and friendship with them.

The next document is a title, in form, grante
ed by the Governor, Micheltorena, dated Mon
terey. 5th September, 1844. At the foot of the
grant is a memorandum, as follows:

*' Note has been made of this decree in the
proper book, on folio 4.

In the absence of the com'r.

Francis C. Arce."

The signatures of M. G. Yallejo to the per-
mit of occupation, and of Micheltorena and F.
C. Arce, the governor and acting secretary, are
genuine, if three witnesses are to be believed —
Castenada; W. D. M. Howard, and Salvador
Yallejo, one of the original grantees. The
proof of possession and occupation is slight,
and not entitled to much consideration, in pass-
ing upon the equity or justice of the title, or
even upon its honafidef>.

This proof rests mainly upon the testimony
of S. Yallejo. He was examined twice on the
subject — once when th&case was before the
Board of Commissionersf and again when on
appeal before the district judge. In his first
examination, he states, that immediately after
permission was given to occupy the ranch
(March, 1839) he placed on the land about one
thousand head of cattle, t)etween three and
four hundred head of horses, and from eight
hundred to one thousand head of hogs; that he
built a house on the land the same vear, and
also corrals, and left an overseer and servants
in charge of the place.

In his second examination, he states, that in
the year 1842 or 1843 he placed cattle on the
ranch, built a house and corrals, and in the
year 1843 or 1844 received a title for the land;

85tt

that he then lived on it, but was frequently
absent visiting his house and lot in Sonoma,
and his other farms, but always left a mayor
domo on the raAch: and during this time he
cultivated beans, corn, pumpkins, watermelons.
&c. The last house he built on the place was
about the time the country was invaded by the
Americans. That during the time mentioned,
he had on the place from 1,500 to 2,000 head of
cattle, 500 to 600 head of horses, and from 1,500
to 2,()00 head of hogs. He further states, that
most of his stock was subsequently stolen and
driven off by the Indians and emigrants. This
evidence is slightly corroborated by the testi-
mony of Castenada and Carillo.

From the numerous cases tiiat have already
been before us, as well of from our own in-
quiries into the customs and usages of the in-
habitants of California, especially those engaged
in the business of raising cattle and other stock,
this mode of occupation furnishes very un-
satisfactory evidence of possession and cultiva-
tiod of the land in the sense of the Colonization
Laws of Mexico. Any unappropriated portion
of the public lands was open to similar posses-
sion and occupation without objection from
the public authorities. Indeed, according to
the laws of the Indies, the pastures, mountains
and waters, in the provinces, were made com-
mon to all the inhabitants, with liberty to estab-
lish their corrals and herdsmen's huts thereon,
and freely to enjoy the use thereof, and a penal-
ty of five thousand ounces of gold was imposed
on every person who should interrupt this com-
mon right. 2 White's Recop., 56.

There is also a fact, stated bv the witness
Yallejo himself, that is calculated to excite dis-
trust as to the extent of the possession and oc-
cupation, and for the purpose stated. He says
that there were constant revolutions among the
Indians at the time; that it was unsafe for
families to live there, and that the alcalde at
Sonoma refused to deliver him ludicial posses-
sion in 1845, on account of the danger.

It is quite apparent, also, from the testimony
of this witness, that the huts built for the herds-
men of the cattle were of a most unsubstantial
and temporary character. No possession of any
kind is shown since the cattle and other stock
were carried off by the Indians and emigrants.
When that took place does not appear; but
doubtless as early as the first disturbances in
the country, in the fore part of the year 1846.

The possession and occupation, therefore,
even in the loose and general way stated, was
only for a comparaiiveTy short time.

We have said that the signatures of the of-
ficers to the documentary evidence of the title
are genuine, if we can believe the witnesses —
Castenada, Howard and Yallejo; but, as all of
these officials were living after the United
States had taken possession of the country dur-
ing the war, and even after the cession by Mex-
ico, and, with the exception of the governor,
resided in California, these signatures may be
genuine, and still the title invalid. It was prac-
ticable to have made the grant in form genuine,
but antedated.

The permit to take possession of the tract, in
connection with the short and unsubstantial
character of the possession, is not of much im-
portance in making out the claim. Yallejo
had no power to disi)08e of the public lands.

68 U. S.

l«A.

Vkitbd Statbs v. Pioo.

406^16

We do not understand that his permission to
occupy, as director of colonization on the fron-
tiers, laid the governor or Mexican Government
under any obligations to grant the title. If fol-
lowed by valuable and permanent improve-
ments, considerations might arise in favor of a
claimant that should influence a government,
when called upon to grant the property to an-
other. We think, therefore, that the claim
rests chiefly, if not entirely, upon the grant of
the title by the governor of the 4th September,
1844.

This grant stands alone. None of the usual
preliminary steps, prescribed by the Regulations
of 181^. such as the petition, marf inal reference
for a report as to the situation and condition of
the land, report of the proper officers and min-
ute of concession, were observed. These, with
satisfactory proof of the signatures to the pa-
pers, give some character to the grant, and tend
to the establishment of its genuineness. Even
the permit of Vallejo is not noticed by the gov-
ernor, nor any present occupation of the prem-
ises by the grantees.

So far, therefore, as respect the title, or even
any rightful claim to the tract, it depends
munly upon proof of the signatures of Michel-
torena and of F. C. Arce, the acting secretary.
There is no record of the title in the proper
book, shown in the case, nor exists in fact, as
it is understood this book of records exists for
the years 1^4, lc$45, and no record is there
found. The memorandum, therefore, at the
foot of the grant, by Arce, the secretarj^,
" Note has b^n made made of this decree in
the proper book, on folio 4," is untrue. Nor
has there been found any approval of the grant
by the Departmental Assembly, for those rec-
ords are extant, as found in the Mexican ar
chives. The archives are public documents,
which the court has a ri^ht to consult, even if
not made formal proof m the case. The ab-
sence of any record evidence is remarkable, if
the title is genuine, as one of the grantees, Juan
Antonio Vallejo, resided at the time in Mon-
terey, where these records were kept, and
where all the formalities of a regular Mexican
grant niight might readily have been complied
with. Tne parties, also, were men of more
than ordinary intelligence, and belong to one
of (he most influential Mexican families of the
Territory, and doubtless well understood the
regulations concerning grants of the public do
main.

The non production of this record evidence
of the title, under the circumstances, is cal-
culated to excite well grounded suspicions as
to its validity, and throws upon the claimant
the burden of .producing the fullest proof of
which the party is capaSle of the genuineness
of the grant. We do not say that the absence
of the record evidence is of itself necessarily
fatal to the proof of the title; but it should be
produced, or its alisence accounted for to the
ia^faction of the court.

We have already said, that the genuineness
of the official signatures to the paper title might
be established, and yet the title forged, and
stated our reasons. Proof of the genuineness
of these alone can never be regarded as satis-
factory. It must be carried farther by the
claimant. The record proof is, generally speak-
ing, the liighest. Possession and occupation

See aa How.

of some duration, i>ermanency, and value, are
next entitled to weight.

At least, satisfactory evidence should be re-
quired, under the circumstances in which most
of these Mexican grants were made, as to make
the antedating of any given grant irreconcil-
able with the proof; otherwise, there can be
no protection against imposition and fraud in
these cases.

The decree of the court beUno reversed, and the
C4ue remanded for further evidence and examina-
tion.

Cited— 63 U. S. CSi How.). 416. 421: 66 U. S. (1
Black), 853; 68 U. 8. (IWall.), 867, 422, 742, 745; 8
Sawy., 60, 67.

THE UNITED STATES, Appts.,

ANDRES PICO ET AL.

(See S. C. 22 How., 406-416)

Same decmon as in United States v, leschmaker,

ante, p. 353,

In this case, no reoor<1 of the grant or title paper
is found aiiiontf the MexlcaD archives or in any
tH>ok, nor is there any evidence of posnesition or
occupation, duservlnir notice or cimsideratlon.

The case fails wittiin the princlple9, and is gov-
ernod by the views of the court, in the cade ot the
United States v. Te8chniaker,decided at this term.

Argued, Feb. 8, 1860, Bedded Mar. IS, 1860,

APPEAL from the District Court of the Unit-
ed States for the Northern District of Cali-
fornia.

The history of the case and a statement of
the facts appear in the opinion of the court.

Messrs. J. S. Black, Att'y Gen., and E.

• Stanton, for the appellants:

This is a claim for eleven leagues of land
called Moquelemos, which the claimant alleges,
in his petition to the Board of Commissioners,
was granted to him by his brother, Pio Pico,
in the month of May. 1844, and confirmed to
him in June. 1846. The land lies on the Mo-
quelemos River, in what is now the County of
Oalevaras.

The documentary evidence of title produced
by the claimant is:

1. A grant signed by Pio Pico and counter-
signed by Jose Morias Moreno, describing the
land in question, dated at the City of Los
Angeles, on the 6th day of June, 1846.

2. A paper headed '* Departmental Assembly
of California," and signed Narciso Botello,
Deputy- Secretary, addressed to Secretary Mo-
reno, in which the fact is stated thajt this grant
and others which are named, were approved
by the Departmental Assembly in that day's
session. Note. The date of this paper (July
16, 1846) is certainly the date which it truly
bears. It is so in all the records, the original
Spanish as well as the translations.

8. The paper signed by Pio Pico and Jose
Morias Moreno, dated June 15, 1846, setting
forth that the most excellent Departmental As-
sembly, " in session of to-day," decreed the
approval of the grant in question.

This is all the documentary evidence in the
case. There is no petition, order of reference,
information, decree of concession, map or copy
of the grant found among the archives. No map

867

40(M16

8UPBB1K1B Court of thb tTiiiTBD States.

bsc. Term,

or diseno of the land was exhibited to the court
below, or is to be found upon the records sent
here. There is no registry, nor any iLind of en-
try upon any book. The grant was produced
from the private custody of the grantee him-
self. So it appears was the certificate of Pico
and Moreno, that it had been approved by the
Departmental Assembly. Judge Hoffman dis-
tinctly declares that the only paper found in the
archives is the communication of Botello, trans-
mitting the thle deed -and asserting its approv-
al. Who placed that paper upon the record
and how or when it came there, are ques-
tions not easily solved. That it did not get
there honestly, will be very apparent to the
court long before this examination is finished.
The objections which the government now
makes to the aflSrmance of this decree, are
those which follow :

1. The grant is made by the governor to his
brother, and is therefore void.

2. It is void because Pio Pico, at the time of
making it, had no authority, jurisdiction or
power to make anv grant in this case, for want
of petition, investfflration and map. such as the
laws of 1824 and 1828 require in all such cases.

8. There is no record evidence of the grant,
nor any explanation furnished of its absence,
and therefore it is, to all intents and purooses,
^e same as if no evidence at all of it had been
given.

4. It is a forgery. The proof of this is pow-
erful and overwhelming. It is not possible to
furnish, any reason wh^ the grant was not
entered upon the record, if it was really made at
the time it bears date. In addition to that, the
Journals of the Departmental Assembly furnish
very strong circumstantial evidence against the
genuineness of this title.

Mr. R. H. Gillet, for appellee:
Facts established by the evidence in the
record.

1. A grant was made by the governor on the
6th of June, 1846.

2. This grant was approved by the Depart-
mental Assembly on the 15th of June, 1846, at
Los Angeles.

8. Owing to the Indian hostilities, immediate
possession could not be taken of the grant, nor
Judicial possession given.

4. The claimant, when the country permit-
ted, took and continued actual possession.

6. The grant has distinct boundaries, which
distinguish it from the residue of the public
domam.

6. No evidence was offered by the United
Stat^, to contradict or repel any offer by the
claimant. *

7. No question as to the want of a petition,
reference, report or map. was raised by the
United States, either before the board, or dis-
trict court.

No question was raised before the board or
district, court concerning the power and au-
thority of the government to grant, or the As-
sembly to confirm.

9. The bona fides of the orant was not ques-
tioned, either before the 6oard or the district
Court.

Argument.

1. No question can be raised and decided
upon appeal, which was not raised below.

«(8

2. When an equitable right is once vested
under a grant by a governor, it cannot be de-
vested by the action of the government, upon
a denouncement by a third person.

8. Conditions subsequent, if not performed,
do not render the grant void., nor authorize the
{^overnmoot to forfeit the grantees' rights for
Its own use.

4. When an officer of the Mexican Qovem-
ment, having the power to make grants, exer-
cises that power so as to create the reasonable
belief in the mind of the grantee, that he re-
ceived a valid grant, and takes possession
under it, such grant, whether made after com-
pliance with all legal formalities or not. confers
an equitable right which this court is bound to
confirm. In this case the record shows that
a grant was actually made, and no question
was raised as to its genuineness.

6. By the laws, usages and customs of Mexi-
co, a grant is valid when confirmed by the
Departmental Assembly, whether the usual pre-
liminary formalities were observed or not.

6. It is to be presumed that Governor Pico
performed his duty in relation to the necessary
preliminaries of this grant, until the impeach-
ing party proves the contrary.

7. The United States are estopped from de-
nying the fact of the petition, &c., by the previ-
ous recital of their grantor in the grant to the
claimant, which was prior to theirs.

8. The regulation specifying preliminary
steps to be taken in applications for granta, are
merely directory, and may be disp^ised with
without vitiating the grant.

0. No additional evidence can be introduced
on an appeal to this court, except in admiralty
cases.

See, also, argument in the preceding

Mr. Justice Nelson delivered the opinion of
the court:

This is an appeal from a decree of the Cir-
cuit Court of the United States for the North-
ern District of California.

The appellee presented to the Board of Cooi-
missioners a claim for eleven square leagues of
land, known by the name Moouclamos, situate
in the County of Calaveras, California. The
board rejected the claim; but, on appeal to the
district court, and the production of some
further proof, that court afllrmed it.

The preliminarv proceedings required by
the Resiilations of 1828, before a |;rant of the
public lands, were not produced, if any exist-
ed. The only evidence of the title is a j^nt
of the tract by a formal title to the claimant,
dated Los Angeles. 6th June, 1846. signed by
the Governor, Plo Pico, and J. M. Moreno, the
Secretary of State, and two other papers relied
on as furnishing proof that the grant was ap-
proved by the Departmental Assemblr. One of
them is a certificate to that effect of the gOT-
emor and secretary, bearing date 15th June,
1846. the other purports to be a communication
from N. Botello, Deputy-Secretary of the De-
partmental Assembly, or the approval to Mor-
eno. Secretary of State, for the information of
the governor. This approval, according to
the Deputy-Secretary of the Aasembly, was in
a session held on the 15th July. 1846. The
pajper was found among the Mexican archiTea.

The other documents — ^the grant and certifi-
es D. &

1859.

UNmD States v. Vallbjo.

416-423

cate of approval — came from the hands of the
claimant No record of them was found among
the Mexican archives or in any boolc, nor &
there any evidence of possession or occupation
deserving notice or consideration.

The case falls within the principles and is
governed by the views of the court in the case
of The United States v. Tesehmaker ettU., de-
cided at this term. Besides the suspicious
character of the grant, it appears to be wholly
destitute of merit.

The decree below refoereed^ and the com re-
manded for further evident,

Clted~7 Sawy., 461 ; 41 K. T., 874.

THE UNITED STATES, AppU,,

MARIANO G. VALLEJO.

(8ee S. C, 23 How., 416-422.)

Saine decision ae in U. 8. v. Tesehmaker, ante,

p. S53.

Where neither the frrant nor the certificate of
approval has been found among the Mexican ar-
oDires, nor the record of them upon any book of
rcoord8,and both papers came from the hands of the
claimant, and the ^nulnencss of the title depends
upon proof of the official signatures, and some evi-
dence of possesMon, held, toat this ca^e falls with-
in the views of the court in the United States v.
Tesehmaker, decided this term.

Arsrued Feb. i8, 1860. Decided Mar, 12, 1860.

APPEAL from the District Court of the Unit-
ed States for the Northern District of Oali-
fomia.

The history of the case and a statement of
the facts appear in the opinion of the court.

Messrs. J. S. Black* Atty-Oen., and E. M,
Stanton, for appellantR:

The usual effort is made to supply the legal
proof, by testimony of occupation and posses-
sion.

There is no espediente on file. The ^nt is
not found in Jimeno's index. The claim rests
upon the production of two papers and proof
of handwriting. It is not supported by any
legal evidence requisite to establish a valid
claim.

The following specific objections are made
to confirmation :

1. No espediente, or official record of the pro-
ceedings, required by the Mexican laws in
flp^nting lanus, is produced, nor any record evi-
dence whatever.

The law required the " titulo" to be authen-
ticated by the secretary of the department.
Jimcno was the secretary; and if from any
cause Arce acted as secretary acf interim, the
fact should have been shown, and he should
have been called to prove the execution of the
instrument by tlie governor.

8. Handwriting is secondary evidence, and
competent only when, from the nature of the
case, primary evidence by the attesting witness
cannot be obtained.

4. The paper bearing the names of Pico and
Corvarubias is nothing moi6 than a private cer-
tificate by those persons. No proof is made as
to when it was given, and it affords no evi-
dence of the acti<m of the Departmental Aflsem-

See 83 How.

bly, which should be shown by their own jour-
nal. The journal of the Assembly for 1845,
shows no cession on the 18th of February, 1845,
the day that the certificate states the confirma-
tion to have been made. If there was a cession
on that day, the fact might be, and should
have been, proved.

5. If this grant were genuine, it would have
appeared regularly numbered and entered in
Jimeno*s index, with a corresponding espedi-
ente on file in the archives. It would also nave
been noted in the Toma de Razon of that year,
but there is no mention of it. Every claimant is
bound to establish his claim by legal proof in
conformity with the Mexican laws and usages
in granting land. The whole burden of proof
is u]?on him, and unless that burden is fully
discharged, he has no right to a decree of con-
firmation. The absence of an espediente, or any
record evidence of the grant, is unaccounted
for. No excuse is shown or ground laid for
secondary evidence.

Mr. P.Phillips, for appellees:

The present claimant derives his title under
a deed of warranty, in consideration of $8,000
from Miguel Alvarado. dated 20th February.
s849. for *' three sitias de gando mayor, which
I have granted to me by the Departmental As-
sembly of this Territory, approved by the as-
sembly of the same."

This deed is witnessed by Castenada and
Salvador Vallelo, and is acknowledged before
the alcalde on 22d February, 1849.

The title on which confirmation is rested, is
a grant f rom Micheltorena to Miguel Alvarado,
dated at Monterey, 28d November, 1844.

In this formal grant, the following facts are
recited:

1. That Alvarado had solicited the land.

2. That the proper measures and examinations
had been made.

8. That the land is fhown by the map at-
tached to the ei*pediente.

4. That the interest was to confirm him in
the ownership of the title, which he had ob-
tained from the Senor director. &c., Don Mari-
ano Vfdlejo.

If the court is satisfied that this grant is gen-
uine, then these facts are established by theh*
recital.

Besides the grant, there is the approval of
the Departmental Assembly, signed by PioPico
and Jose M. Corvarubias.

These were produced as original documents,
and the signatures of all the parties proved.

No objection can be made in this court, that
they were not proved by competent evidence.

The genuineness of the title was established
to the satisfaction of the Board of Commission-
ers, who rejected the claim on the ground that
the quantity of land was not sufllciently desig-
natea.

The decree of Judge Hoffman shows that
this defect was cured by the evidence of other
witnesses," whose teslimony. taken on appeal,
in our opinion establishes the identity of the
land granted to Alvarado, and removes the only
objection urg^ to a confirmation of the claim."

The absence of record evidence, either in the
archives or in Jimeno's index, can amount to no
more than cause of suspicion. It cannot of
itself invalidate the title.

The attempt to raise the question as to the

28-46

SUPRBMB GOUBT OF THB XJkITBD StATBS.

Dec. Tmx,

bonejides of the grant, is condemned by the de-
cision of this court.

" It has been urged that this grant is a ficti-
tious one, &c. Our answer to this suggestion is
that no objection to the bone Jidea of the grant
was taken before the tribunals below, where
it should have been made if relied on by the
government, so as to have given the complain-
ants an opportunity to have met it. To permit
it to be taken in the appellate court for the first
time, where there is no opportunity for expla-
nation, would be a surprise upon them, of
which they may justly complain."

LarJdn'H case, 59 IL 8. (18 How.). 561.

Mr. JuBiice Nelson delivered the opinion
of the court:

This is an appeal from a decree of the Cir-
cuit Court of the United States for the North-
ern District of California.

The appellee. Vallejo, presented to the Boanl
of Land Commissioners a claim for three square
leagues of land, known by the name of Yulupa,
situate in the County of Sonoma, California,
having derived his title from Miguel Alvarado,
the original grantee.

The documentary evidence of the title is:
1st. A grant in nue form, dated Monterey,
23d November, 1844. purporting to be signed
by Micheltorena, Governor, add Francisco
Arce, Secretary, with a memorandum by the
secretary: "Note has been made of this title
in the proper book;*' and 2d. A certificate of
approval by the Departmental Assembly, bear
ing date at the City of Los Angeles, 18th
February, 1845, signed by Pio Pico, Governor,
and Jose M. Corvarubias, Secretary.

Neither the grant nor the certificate of ap
proval has been found among the Mexican
archives, nor the record of them upon any book
of records. Both papers came from the hands
of the claimant. The genuineness of the title
depends upon proof o? the official signatures,
and some evidence of possession.

The Board rejected the claim ; but on appeal
to the district court, and the production of fur-
ther proof oiF possession, that court affirmed it.

The case falls within the views of the court
in Hie United States v. Teaehmaker, et oZ.,
decided this term.

Decree ret^ersed, and tJis com retnanded far
further evidence.

Gited-d Sawv., 87.

CHARLES EMERSON, Piff. in Br.,

HORATIO N. SLATER.

(See S. C, 22 How.. 28^*5.)

Time, when eseence of contract — performance
within time limited-^aubsequent perform/inee
and acceptance — terbal agreements before or at
execution of written contract, inadmissible —
qfter written agreement made, when terbal
contract may waive or vary it — but not con-
tract vfithin Statute of Frauds — common
counts, when proper for recovery.

NoTK.— jWfiw, when of the essence of the contract.
See note to Slater v.Emerson, 60 U.8., In Book 15, 026.

Parol evidence as applicable to written contra4its.
See note to Bradley v. Wash., 4o., St. Packet Co., 88
n^S. (13 Pet.), 89.

860

In an action upon written contract that the
plaintiff would complete all the bridge work agreed
to be done by defendant for a railroad company,
by the first day of December next after the date of
the contract : held, that time was of the essence of
the contract.

Where time ia of the essence of the contract,
there can be no recovery on the contract, without
showing performance within the time limited.

But subsequent performance and acceptance by
the defendant, will authorize a recovery on a
quantum meruit.

Verbal agreements between the parties to a writ-
ten contract, made before or at the time of the
execution of the contract, are, in general, inadmis-
sible to vary its terms or to affect its construction.

After the contract has been reduced to writing,
it is competent for the parties, in cases falling with-
in the general rules of the common law and not
within the Statute of Frauds, at any time before
the breach of it, by a new contract, not in writing,
eitbt^r altogether to waive, dissolve, or annul the
former contract, or in any manner to add to or sub-
tract from, or vary, or qualify the terms of it, and
thus to make a new contract.

A written contract, within the Statute of FraudSt
cannot be varied by any subsequeut agreement of
the parties, unless such new agreement is also in
writing.

Cbbgb in which the guaranty or promise is oollat*
eral to the principal contract, but is made at the
same time, and becomes an esssential ground of the
credit given to the principal debtor, are, in general,
within the Statute of Frauds.

Other cases also fall within the statute, where the*
collateral agreement is subsequent to the maklns^
of the debt, and the subsisting liability wa6 the
foundation of the promise on the part of the de-
fendant, without any other direct and senarate.
consideration moving between the parties.

The written agreement in this ca>«e, was an orig-
inal undertaking on a good and valid consideration
at the time the instrument was executed, therein
expressed.

The plaintiff had a right to proceed upon the
common counts, where he claimed performance
subsequent to the time named in the contract and
acceptance by defendant.

Argued Feb. SI, I860. Bedded March J£, I860,

IN ERROR to the Circuit Court of the United
States for the District of Massachusetta.
The history of tlie (»se and a statement of
the facts appear in the opinion of the court.

Messrs. C. Cushinflr and Henry C. Huteh-'
ins, for plaintiff in error:

1. At common law a contract reduced to
writing, may, by parol agreement of the parties
subsequently made, be varied, waived, or dis-
charged, whether the same is a simple contract
or under seal.

Browne St. Frauds, sec. 400 (b), sec. 423; 1
Greenl. £v., sees. b02, 304: Snow v. Irihab.
of Ware, V6 Met., 42; MarsfioU v. Baksr, 19
Me.. 402; BaUard v. Walker, 3 Johns. QtA.,
60; Qoss V. Jjord Nugent, 5 B. <&; Ad., 65; 1
Phil. Ev. (Cow. & H. ed.), p. 663, 987;
Sherwin v. But. <fc Bur. 1?. 12., 24 VL, 347;
Vicary v. Moore, 2 Watt*, 451 ; Barker v. Troy
cfe Rut. R. R., 27Vt.,766; NeU v. CAem, 1
Bail. 8. C, 687; Munroe v. Perkins, 9 Pick.,
298; WhiU v. Parkin, 12 East, 578; FUmmg\.
Chilbert, 8 Johns., 628; Keating v. Price, 1
Johns. Cas., 22.

2. And there is no distinction in this respect
between a contract in writing at common law,
and a contract required to be in writing by the
Statute of Frauds.

Browne Stat, of Frauds, sec. 423; 1 Greenl.
Ev., sees. 802. 804; Oummings v. ArruM^ 3
Met., 486; SUarns v. HaU, 9 Cush.. 81; Ouff
V. Penn,, 1 M. & S.. 26; ffoM v. Lord NugetU,
6 B. & Ad., 68.

3. If the promise of Slater ia within Uie

es u. Sk

1860.

£mBB80N y. SLilTBR.

28^5

Statute of Frauds, it is within the Statute of
Frauds of Massachusetts. And the decisions
of the courts of Massachusetts have been uni-
form, that the time of performance and terms
of a contract reouired to be in writing by the
Statute of Frauds of that State, may lie ex-
tended, or waived, or varied, or wholly dis-
charged by parol.

Cummings v. Arnold, 3 Met., 486; Stearns v.
HaU, 9Cush., 31.

4. The decisions of the courts of Massachu-
seits upon their own Statute of Frauds, are ob-
ligatory upon this court; at least this court will
follow them.

MeOutehen v. MarshdU, 8 Pet., 220; BAk'%
Iauu v. Wtvidcd, 9 Cranch, 87; McKeen v.
Delaney*s Lesaee, 5 Cranch. 22; Elmendorf v.
Taylor, 10 Wheat., 152; McDmoeU v. Ptyton, 10
Whtat., 454; ThateJter v. F&weU, 6 Wheat..
119: Harpendinq v. Dutch CA., 16 Pet., 455;
Green v. IfeaTs Lestee, 6 Pet., 291; Hendermm
▼. Qrimn, 5 Pet.. 151; Peaw v. Peck. 59 U. 6.
(18 How.). 695^98; Jackson v. C/tew, 12
Wheat.. 158-167; U. 8. v. Morris^, 4 Pet.,
124; Susift V. Tyson 16 Pet., 1; Carpenter v.
Prov. Wash, Ins. Co,, 16 Pet.. 495.

Similar decisions have been made on the
Statute of Frauds in other States.

See Clark v. DcUes, 20 Barb.. 42; Lawrence
▼. Dole, 11 Vt.. 549; Dana v. Hancock, 80 Vt.,
616; Duel v. Miller, 4 N. H.. 196; OrafUm
Bank v. Woodteard, 5 N. H. , 99 ; Cuff v. P^nn. ,
1 M. & 8., 21; Ooss v. Lord Nugent, 5 B. &
Ad., 65.

The case of Clarke v. Russel, 3 Dall., 415, is
distin^nitshed from the present.

6. There is a fact in proof in this case, which
did not appear in the case when before this
court before, and that is, that when Slater
made the agreement upon which suit is brought,
securities were placed in bis hands by the

Erincipal debtor, to indemnify him for his lia-
ility. His promise is not, therefore, within
the Statute of Frauds.

7. A parol promise to pay the debt of an-
other in consiacration of property placed by the
debtor in the promisor's hand, is not within the
Statute of Frauds. It is an orippal promise
and bindinf^ upon the promisor, and in this re-
spect it is immaterial whether the liability of
the original debtor continues or is discharged.

1 Browne. Stat, of Frauds, sec. 187. p. 184;
WaU ▼. Wait, 28 Vt.. 850; Farley v. Cleveland,
4 Cow.. 482; 1 Smith's Lead Cas.. 829; Hind
man v. Langford, 8 Strob. 207; Cross v.
Bkhardson, 80 Vt., 641; Fish v. Thomas, 5
Gray 45; Band v. Mather, 11 Gush., 1; dm
stead V. Greenly, 18 Johns.. 12; Hilton v. Dins-
more, 21 Me., 410; Cameron y. Clark, 11 Ala.,
259; Laing v. Lee, Spenc. (N. J.). 887; Goddard
V. Mockbee, 5 Cranch. C. C, 666; Stanly v.
Hendricks, 18 Ired.. 86; Zm v. Fontaine, 10
Ala., 755; McKemie v. Jackson, 4 Ala.. 280;
lAppineoU v. Ashfield, 4 Sandf., 611; WestfaU
V. Parsons, 16 Barb.. 645; Todd v. Tobey, 29
Me., 219.

The defendant, having waived by parol, the
performance of the work at the day, thereby
himself prevented performance, and he cannot
avail himself of the non-performance he has
i>itpif>|f occasioned.

Browne, St. Frauds, sees. 428, 424, 425, 486,
fieeSSHow.

p. 436; Fleming v. OUbert, 8 Johns., 581 ; Law-
rence v. Dole, 11 Vt., 549; Young v. Hunter, 6
N. Y.. 203.

8. When this case was before this court
before, no question was made nor discussion
had whether the promise of the defendant was
within the Statute of Frauds. The question was
simply whether time was of the essence of the
contract; and this court decided that it was.

Slater v. Emerson, 19 How., 224.

9. The evidence offered by the plaintiff in
error under the common counts that the defend-
ant in error had securities in his hands to in-
demnify him for his promise took the case from
the Statute of Frauds. It made him an orig-
inal promisor for the work done after Novem-
ber 14, 1854 (the date of the contract), and he
is, therefore, liable upon the common counts
upon a quantum meruit as an original debtor.

Mr, S. W. Bates* for the defendant in er-
ror:

This case was before this court at the Decem-
ber Term. 18*^6. and is reported in 19 Howard.
224. This court then decided :

1st. That the original contract between Em-
erson apd the corporation, to build the bridges
for the corporation, remained in full force un-
affected by the contract between Emerson and
Slater.

2d. That by force of his contract Slater
stood in the relation of a surety for the cor-
poration for the amount fur which he had
agreed to become liable.

8d. That the time of performance (December
1) was of the essence of Slater's contract and
he was not liable thereon. as Emerson had failed
to perform within the time fixed.

The judgment of the circuit court was re-
versed and the cause was remanded for a new
trial.

As this court had decided that Emerson
could not sustain his action on the written con-
tract with Slater when the case came on for a
new trial in the circuit court, the plaintiff of-
fered to prove by parol ** that after November
14th. 1854, and before the Ist day of Decem-
ber, 1854, and after the Ist day of said Decem-
ber, the defendant, by his acts and declarations,
waived and dispensed with the performance of
work, by the plaintiff, on the 1st of said De-
cember, and agreed to substitute, therefore, per-
formance thereon, on or before the 20th day of
December. 1854, and to deem performance by
the plaintiff, on or before the 20lh of December.
1854, a substitute for an equivalent to perform-
ance on the 1st day of said December, accord-
ing to the contract, and that the corporation
also assented thereto, and that the work was
fully performed within the extended time.

Tjiis testimony was objected to by the de-
fendant, upon the ground that the contract of
November 14, 1854. was a special promise for
the debt, default or misdoings of another, and
was within the Statute of Frauds, and that the
alleged waiver, extension and substitution,
were not by writing. The court suslamed the
obiection and excluded the testimony, to which
ruling the plaintiff then and there excepted.

This ruling was right.

This court had decided what performance by
the 1st day of December was an essential part
of this contract." And manifestly a contract

d8-l5

SUFBJSMB COUBT OV THB UnITBD StATBS.

Dbc. Term,

cannot be varied in one of its essential parts
without making a new contract

And when such new contract has been made,
it must be declared on.

This plaintiff declares on such new contract
in his last count. And inasmuch as the con-
tract declared on is that of a surety, it must be
in writing, and wholly in writing. The t^tatute
of Frauds is not complied with by producing a
contract which is partly in writing, while one of
its essential parts rests in parol.

Clark V. RuMeU, 8 Dal:.. 416; Oom v. Lord
Nugent, 5 B. & Ad., 68 ; Harvey v. OrabJiam,
5 Ad. & L., 61 ; StovxU v. Robinson, 3 Bing. N.
C, 928; Stead v. Dawber, 10 Ad. & El.. 67;
MarskaU v. Lynn, 6 Mees. & W., 109; Emmet
V. Detohirsi, 8 Eng. L. & Eg , 88; Haabrauek
V. Tappen, 15 Johns.. 200 ; Blood v. Qoodrieh,
9 Wend., 68; Stevens v. Cooper, 1 Johns. Ch..
429,480.

The decision in Steams v. Hall, 9 Gush., 81,
is not binding on this court.

1st. This contract of Slater to give notes does
not appear to be a Massachusetts contract.
Slater'was a citizen of Rhode Island, and the
contract to deliver not money but specific ar-
ticles was legally performable by him at his re-
sidence in H. I.

Chipman Cont. : Vance y. Bloomer, 20 Wend.,
Wend.. 196; McMurray^, The State, 6 Ala.,
824; Minor v. MiekU, 1 Walk.. Miss.. 24; 2
Kent's Com., 608.

2. The construction of the Statute of Frauds
is not a question of local law. The same Statute
exists in every State and Territory of the Union.

When the decisions of a state court are in-
consistent to show that no rule has been finally
settled, this court will decide according to its
own unbiased Judgment.

Pease v. Peek, IH How.. 598; Homer v.
Brown, 16 How., 9^\SwiftY. Tyson, 16 Pet., 1.

This court having decided the point now in
question in the case, cited from Dallas, will not
now hold otherwise because the state court has
held otherwise.

Bawan v. Runnels, 5 How., 139.

The plaintiff at the trial in the circuit Court
introduced three deeds of land from the rail-
road corporation to the defendant, dated three
days after the defendant entered into the con-
tract of Nov. 14, and said to have been made
to indemnify the defendant from his liability
under the said contract.

But wo are not aware of any case or dictum
showing, that because a surety, after he has be-
come £)und, as such, takes security from his
principal to indemnify himself against loss by
his contract of suretyship, he thereby ceases to
be a surety and becomes a principal debtor.

However true it is that assumpsit for a qtuin-
turn valebant or quantum meruit will He, where
the terms of a special contract have not all b^n
complied with, to recover the value of the land
and materials held and enjoyed by the defend-
ant, yet nothing is better settled than that no
action can be maintained on the contract itself,
without alleging with exactness, performance
in entire accordance with the terms of the con-
tract, including that in relation to time of per-
formance and proving the allegation.

This proposition has been affirmed in nearly
every State.

Smith. Lead. Cas., 6th Am. ed., note to
Cutter & Powell, Vol. II,. pp. 49, 60; Bank of
Columbia v. Patterson, 7 Cranch, 299; Bank of
Columbia Y. Hagner, 1 Pet., 465; Wash. Pack,
Co, V. Sickles, 10 How., 419; Marshall v. Jones,
11 Me., 66; Bniton v. Turner, 6 N. H., 488;
Oaman v. HaU, 11 Vt., 518; TaftY, Montague,
14 Mass., 282; Snow v. Inhab, of Ware, 18 Met.,
48; Smith v. Seotts R. School Diet., 20 Conn..
812 ; Gregory v. Mack, 8 Hill.. 880 ; JeweU v.
Sehroeppel, 4 Cow., 664; Philips v. Butler, 8
Johns., 892; Alexander v. Hoffman, 5 Watts.
& S., 882; Baldwin v. Lessner, 8 Ga., 71;
Brown v. Oauss, 10 Mo., 2^6; Morrison v. Itet,
4 Sm. & M., 662; Hawkins v. Gilbert, 19 Ala.,
55; Simpson v. McDonald, 2 Ark., 871; .y«ir-
man v. McGregor, 5 Ohio, 849 ; Eldridge v.
Rowe, 2 Gilm., 111., 91: Lomax v. Bailey, 7
Blackf.,599; Mofford v. Mastin, 6 Mon., 609.

In this case there has been no performance
within the time, and no legal excuse for the
breach on the part of Emerson.

Oq November 14th he agrees to complete the
work in sixteen days. He was more than
double that time in doing it, and no hindrance
on the part of anyone is shown, and no excuse
for its non-completion.

Emerson cannot recover therefor unless it be
on the common counts, and not then unless it
be on the quantum meruit and vaMtant, Can
he recover on these?

The agreement of November 14 shows tbst
the money and notes given by Slater were to
apply to the then indebtedness of the company
to Emerson, and were not to apply to any work
to be done heretofore — ^and this was one of the
points argued at the former trial, contending
that Slater was only a surety. That Emerson
understood that he was doing the work for the
company is evident from the fact that be
charged the company with it, presented to them
his bills, settled with its committee, and never
presented any charges for work to Slater.

If, as this court has heretofore decided. Slater
was a surety for the price of the work done for
the corporation, there can be no recovery had
against him on counts for work, labor and ma-
terials furnished to himself. None were fur-
nished to himself. The law will not imply a
promise to pay another's debt. It require an
express promise in writing.

There is no case of recovering on a quantum
meruit or quantum valebant except for some
work or materials done or furnished, and that,
too, for the defendant.

But Emerson furnished no work or materials
for Slater. They were all for the nulroad com-
pany.

Suppose Emerson had died, become insolv-
ent, or in some other way had become abso-
lutely incapacitated from completing the work
agreed on by December Ist. would Slater have
been liable on a ptanium mehtUt

How long a time after December 1st would
have been allowed to executors of Emerson to
complete the work so as to bind Slater?

If Emerson and the railroad company had
canceled their contract, or had the Company
refused to allow Emerson to continue his work,
would Slater have been liable on a quantium
meruit?

Mosbyy, Hunter, 9 lied., 119.

iM.

&a(B80H y. duLTSiL

is^h

Mr. JvsUee Cliflbrd delivered tbe opinion of
the court:

This case comes before the court upon a writ
of error to the Circuit Court of the United
Btates for the Didtrict of Massachusetts. It
was an action of awumpnt, brought by the
plaintiff in error against the present defendant,
upon a written agreement, bearing date on the
14th day of November, 1854.

By the terms of the instniment, the plaintiff
covenanted and agreed with the defendant, in
consideration of the agreements of the latter
therein contained, and of $1 to him paid, that
he, the plaintiff, would complete all the bridge
work to be done bv him for the Boston and
New York Central Railroad Company, ready
for laying down the rails for one track by the
first day of I>eoember next after the date of the
contract. In consideration whereof, the de-
fendant agreed that he would pay the plaintiff,
within two days from the date of the agree-
ment, the sum of $4,400 in cash ; and also give
to the plaintiff, on the completion of the
bridges, and when the rails for one track were
laid from Dedliam to the foot of Summer
Street in Boston, his, the defendant's, five
notes, for $2000 each, dated when given, as
provided, and made payable to the plaintiff or
order, in six months from their date. Another
stipulation of the agreement was, that the notes,
when paid, were to be applied towards the in-
debtedness of the railroad company to the plaint-
iff, and that the agreement was in no way to
affect any contract of the plaintiff with the
railroad, or any action then pending between
them.

When the declaration was filed, it contained
three special counts, drawn upon the written
agreement, together with the common counts,
as in actions of indebUtUus awumptii.

Performance on the part of the plaintiff, and
neglect and refusal on the part of the defend-
ant to give the five notes specified in the agree-
ment, after seasonable demand, constitute the
cause of action set forth in the several special
counts. They differ in nothing material to be
noticed in this investigation, except that, in
the first count, performance on the part of the
plaintiff is alleged, according to the contract,
on the 1st day of December, 1854, while in the
second and third counts it is alleged at a pe-
riod twenty days later.

An additional special count was afterwards
filed b^ consent, which, in one respect, varies
eeaentially from the other counts. After set-
ting out the substance of the contract, it alleges
that the defendant waived performance at the
day stipulated in the agreement, and extended
the time to the twentieth day of the same De-
cember, and that the plaintiff performed and
completed the work within the extended time.
Demand of the notes prior to the commence-
ment of the suit, substantially as alleged, was
admitted at the trial, as were also the execution
of the agreement and the payment by the de-
fendant of the $4,400.

As appears by the transcript, the cause has
been twice tried upon the same pleadines. At
the first trial, the verdict was for the plaintiff;
but the defendant excepted to the rulings and
instructions of the circuit court, and, after
iudgment, removed the cause into this court
by writ of error.

Bee S8 How.

Among the questions presented on the writ
of error, the principal one was whether, by
the true const ructioo of the written agreement,
time was the essence of the contract. That
question was directly presented by the fourth
exception ; and this court held, that the refusal
of the circuit judge to instruct the jury, as
prayed by the derendant, that the plaintiff
could not recover on the special counts without
showing that the work was completed by the
day stipulated in the contract, was error. Ac-
cordingly, the judgment was reversed, and the
cause remanded, with directions to issue a new
venire.

In Uie opinion delivered on the occasion, this
court said, in effect, that in cases where time
is of the essence of the contract, there can be
no recovery on the written agreement, without
showing performance within the time limited;
but added, that a subsequent performance
and acceptance by the defendant will authorize
a recovery in a quantum meruit, /Slater v.
Emerson, 60 U. 8. (lU How.), 239.

Failing to show performance at the day
named in the agreement, the plaintiff, at the
last trial, offered to prove by pairol to the effect
that, after the date of the agreement, and be-
fore as well as after the day specified for the
completion of the work, the defendant, by his
conduct, acts and declarations, waived and
dispenscKi with performance at the day named
in the written agreement; and agreed to sub-
stitute therefor, performance on the twentieth
day of the same December, and to deem per-
formance on the day last named as equivalent
to performance on the day specified in the
written agreement, and that the work was fully
perform^ within the extended time.

Objection was made by the defendant to this
testimony, upon the ground that the written
agreement declared on was a special promise
for the debt, default or misdoings of another;
and that the alleged waiver, su&titution and
extension, not bein^ in writing, were within
the Statute of Frauos; and the court sustained
the objection, and excluded the testimony. To
which ruling of the court the plaintiff ex-
cepted.

He then proposed to proceed upon the com-
mon counts, and offered evidence accordingly.
After reading the agreement set up in the
special counts, he introduced three deeds, each
dated November 17, 1854, purporting to con-
vey certain parcels of real estate therein de-
scribed. They were each given by the railroad
company to the defendant, to indemnify him
for the liability he assumed in the before-
mentioned written agreement with the plaint-
iff. Estiinatinff the value of the real estate so
conveyed by me considerations expressed in
the respective deeds, it amounted in the aggre-
gate to the sum of $18,500.

He also introduced a memorandum agree-
ment between the defendant and the railroad
company^ whereby the former leased to the
latter ten hundred and fifty tons of railroad
iron, to be laid down by the company and used
on their railroad. By the terms of the last-
named agreement, the railroad iron was esti-
mated at the value of $68,400; and the com-
pany agreed to pay the defendant for the use
of the iron, $5,000 per month, the first pay-
ment to be madeon the first day of March then

&B45

guFRisite Court of the t^mrBD drATSs.

t>BC. TxKK ,

next, and bo upon the first day of each suc-
ceeding month, until the whole sum was paid,
with interest on the same from a given day —
the defendant agreeing, if there was no de-
fault of the payments, when the whole was
paid, to sell and deliver the iron to the com-
pany for the estimated value including the in-
terest.

To secure these payments, together with the
interest, the railroad company, by the same
instrument, assigned and set over to the de-
fendant the proceeds of the railroad, to an
amount equal to the estimated value of the
iron, with the interest, and authorized and re-
quired the superintendent of the road to retain
in his own hands, out of the proceeds, a sum
sufficient to pay the amount to the defendant,
in the manner and at the times specified in the
agreement.

Ementon's contract with the railroad com-
pany was also introduced, and makos a part
of the record. It bears date on the 17th day
of December. 1853, and provides, on the one
part, that the plaintiff shall build and complete,
sufficient for the passage of an engine over the
same, by the first day of May then next, all the
bridging, as then laid out and determined upon
bv the engineer, from the wharf, near the loot
of Summer Street, in Boston, to Dorchester
shore, and to complete the same as soon there-
after as might be reasonably practicable. On
the other part, the ag^reement prescribes the
compensation to be paid by the railroad com-
pany to the plaintiff, for building and com-
pleting the respective works therein designated
and described, stipulating that eighty-five per
cent, upon the estimated value of the materials
furnished, and seventy-five per cent, upon the
estimated value of the labor performed, should
be paid monthly, as the work was done, and
that the balance should be paid by the com-
pany upon the completion and acceptance of
the whole work.

Parties to the suit are, by law, competent wit-
nesses in the courts of Massachusetts; and un-
der that law the plaintiff was examined in this
case.

He also called and examined five other wit-
nesses. From this parol testimony, it appears
that securities were put into the hands of the
defendant, deemed by him and the company
adequate, at the time, to indemnify him against
his contract with the plaintiff. Those secu-
rities, two of the witnesses say, consisted of real
estate, and the bonds of the company for
$1,700, secured by a mortga^ upon the road.
In respect to the real estate, it is to be observed
that the deeds of conveyance bear date three
days after the date of the contract; but the
presumption from the circumstances is a reason-
able one, that they were given in pursuance
of the arrangement made at the time the con-
tract was executed. It also appeared that the
company failed in Jufy. 1854, and that it was
actually insolvent at the date of these transac-
tions.

Prior to the date of the agreement of the
14th of November, 1854, the plaintiff had
stopped work under his contract with the com-
pany, and refused to continue it. As soon as
the contract with the defendant was made, he
resumed the work on the bridges, and finished
them about the middle of December, 1854; but

864

the rails were not all laid by the company until
the twenty-first day of the same month.

At the date of the contract between these
parties, the defendant was a large stockholdei
in the corporation, and holder of the bonds of
the company, which were secured by a mort-
gage of the road to trustees. During the prog-
ress of the work under the contract between
these parties, and before the day therein named
for the completion of the work, the officers of
the company, or some of them, repeatedly
stated to the plaintiff, in the presence of the
defendant, and without objection on his part,
that all the company wanted, was that the
plaintiff should keep out of the way of the
tracklayers.

Three of the directors, including the defend-
ant, on the 24 th day of November, 1854, called
on the plaintiff while he was at work on one
of the bridges, and inquired of him if he could
complete it by the fourth day of the then next
month, stating to him the reason why it was
desirable that he should do so— and by work-
ing nights and Sundays he completed it, ac-
cording to their request.

Several witnesses state — and among the num-
ber the one who laid the rails for the company
— that the tracklayers were not delaved by the
plaintiff; and the plaintiff testified that the de-
fendant never objected because the bridges
were not completed by the da^ specified in the
written agreement. On bein^ recalled, he
further testified that he paid, for work done
and materials furnished after that day, the sum
of $11,157.84, and that he had not received a
dollar for it from any source.

Thereupon the presiding justice ruled and
instructed the jury that, upon this testimony,
the plaintiff was not entitled to recover on the
common counts, and directed the jury to return
their verdict for the defendant. Accordingly,
the jury found that the defendant never prom-
ised; and the plaintiff excepted to the rulings
and instructions of the court.

Several questions were discussed at the bar,
which, in the view we have taken of the case,
it will not be necessary to decide.

Both of the exceptions to the rulings and in-
structions of the court necessarily involve the
construction of the contract between these
parties; but the question presented is widely
different from the one considered and decided
by this court on the former record. On that
occasion, the single question of any importance
was, whether, by the true construction of the
contract, it was agreed and understood between
the parties to the instrument that the comple-
tion of the work at the time therein prescribed
was a condition on which the obligation of the
defendant to give the notes was to depend.

Contrary to the ruling of the circuit judge,
this court held that the covenants of the re-
spective parties were dependent; that time was
of the essence of the contract, and remanded
the cause for a new trial.

That rule of construction, beyond doubt, is
the law of the contract, and no attempt has
been made to evade or question it on either side
in this controversy. But the question now
presented is of a very different character. '

It is insisted by the plaintiff that the promise
of the defendant was an original undertaking,
on a good and valid consideration, moving be-

M U.S.

1859.

Embrsok y. Slatbu.

28-45

tween Ihe parties to the instrament. On the
part of the defendant, it is insisted that his
undertakiDg was a special promise for the
debt, default, or misdoings, of another, and so
within the Statute of Frauds.

If the theory of the plaintiff be correct, then
it would seem to follow that the rulings and
instructions of the circuit court were erroneous.
Verbal agreements between the parties to a
written contract, made before or at the time of
the execution of the contract, are in general
inadmissible to vary its terms, or to affect its
construction. All such verbal agreements are
considered as merged in the contract. But
oral agreements subsequently made, on a new
and valuable consideration, and before the
breach of the contract, in cases falling within
the general rules of the common law. and not
within the Statute of Frauds, stand upon a
different footing. Such subsequent oral agree-
ments, not falling within the exception men-
tioned, may have the effect to enlarge the time
of performance specified in the contract, or
may vary any other of its terms, or may waive
and discharge it altogether. On this point, the
authorities are numerous and decisive, of which
the following are examples: Gosb v. Nttgeni,
5 Bam. & Ad., 65; NeUon v. Baynton, 3 Met.,
402. Speaking of the exceptions to the fun-
eral rule, that parol evidence is not admissible
to coiitradict or vary the terms of a written
instrument, Mr. Green leaf says: "Neither is
the rule infringed by the admission of oral
evidence to prove a new and distinct agree-
ment upon a new consideration, whether it be
a sustitute for the old one, or in addition to and
beyond it; and if subsequent, and involving the
same subject-matter, it is immaterial whether
the new agreement be entirely oral, or whether
it refers to and partially or totally adopts the
provisions of the former contract in writing,
provided the whole agreement be rescinded
and abandoned." 1 Greenl. Ev., 808. But the
rule, so far as it is applicable to this case, is
better stated by Lord Den man in Oass v. Nu-
gent. 5 Barn. & Ad., 65, wherein he says:
'* After the agreement has been reduced into
writing, it is competent to the parties, in cases
falling within the general rules of the common
law, at any time before the breach of it by a
new contract, not in writing, either altogether
to waive, dissolve, or annul, the former agree-
ment, or in any manner to add to or subtract
from or vary or qualify the terms of it, and
thus to make anew contract." That rule was
afterwards qualified by the same learned judge
in a particular not essential to the present in-
quiry; and with that qualification it appears
to be the rule constantly applied by the En-
glish courts, in cases not within the Statute of
Frauds lo the present time.

Harvey v. Orabham, 5 Ad. &E1., 61; 1 Phil.
Ev. (Cow. & Hill's ed.), p. 683. n, 987; Mun-
roe V. Perkins, 9 Pick., 298; Snow v. Inhab-
itants of Ware, 13 Met., 42; Vka/ry v. Moore,
2 Watts, 451; Cummings v. Arnold, 8 Met.,
489; Flemings, Gilbert. 3 Johns., 528.

On the other hand, assuming the theory of
the defendant to be correct, that, by the true
construction of the contract, his undertaking
was a special promise for the debt, default or
misdoings of the railroad company, then per-
haps the better opinion is. according to the

S3ce 22 How.

weight of authority, that a written contract
within the Statute of Frauds cannot be varied
bv any subsequent agreement of the parties,
unless such new agreement is also in writing.

MarshaU v. Lynn, 6 Mees. & W., 109; Goss
V. Nugent, 6 Bam. & Ad.. 58; Harvey v. Grab-
liam, 5 Ad. & El., 61; Stowetty. Robinson, 8
Bing. N. C. 927; Stead v. Dawber, 10 Ad. &
El., 57; JBhnmett v. Dewhirst, 8 Eng. L. & Eq.,
88; Hasbroitk v. Tappen, 15 Johns., 200; Blood
V. Goodrich, 9 Wend.. 68; Stevens v. Cooper,
1 Johns. Ch., 429; Clerk v. Russel, 8 Dall.,
415.

Decided cases, however, are referred to,
from the Massachusetts reports, which evi-
dently wear a different aspect, and it is con-
tended by the counsel for the plaintiff that the
principle adopted in those cases constitutes the
rule of decision in this case; but it is unnec-
essary to determine that point at the present
time, as we are of opinion that the promise of
defendant contained in the written agreement
was an original undertaking, on a good and
valid consideration moving TOtween the parties
to the Instrument. Nelson v. Boynton, 8 Met.,
896; Stearns v. HaU, 9 Gush.. 81.

Cases in which the guaranty or promise is
collateral to the principal contract, but is made
at the same time, and becomes an essential

§ round of the credit given to the principal
ebtor, are, in general, within the Statute of
Frauds. Other cases arise which also fall with-
in the statute, where the collateral agreement
is subsequent to the execution of the debt, and
was not the inducement to it, on the ground
that the subsisting liability was the foundation
of the promise on the part of the defendant,
without any other direct and separate consider-
ation moving between the parties. But when-
ever the main purpose and object of the prom-
isor is not to answer for another, but to sub-
serve some pecuniarv or business purpose of
his own, involving either a benefit to himself, or
damage to the other contracting party, his prom-
ise is not within the statute, although it may
be in form a promise to pay the debt of another,
and although the performance of it may inci-
dentally have the effect of extinguishing that
liability.

Nelson v. Boynton, 8 Met., 400; Leonard v.
Vredenburg, 8 Johns., S9; Farley v. Cleveland,
4 Cow., 432; Alger v. ScaviUe:^ 1 Gray. 891;
WHUams v. Leper, 8 Burr., 1886: Castling v.
Aubert, 2 East, 825; 2 Pars. Con., 806.

Nothing is better settled than the rule, that
if there is a benefit to the defendant, and a loss
to the plaintiff, conseauential upon and direct-
ly resulting from the defendant's promise in be-
half of the plaintiff, there is a sufficient con-
sideration moving from the plaintiff to enable
the latter to maintain an action upon the prom-
ise to recover compensation. 2 Addison Cont.,
1002, and cases cited. Other authorities state
the proposition much stronger, authoriztng
the conclusion that benefit to the p«irty by
whom the promise is made, or to a third per-
son at liis instance, or damage sustained at the
instance of the party promising, by the party
in whose favor the promise is made, is suSScient
to constitute a good and valid consideration on
which to maintain an action.

ViolettY. Patton, 5Cranch. 150; Chit. Cont.,
p. 28; Townsley v. SumraU, 2 Pet., p. 182.

869

132-141

SUFBSMB COUBT OV THB UnITKD StATES.

Dec. Tkrk.

Apply these principles to the terms of the
written agreement, in view of the attending cir-
cumstances and the subject-matter, and it is
quite clear that the promise of the defendant
was an original unaertaking on a good and
valid consideration moving from the plaintiff
at the time the instrument was executed. On
its face it purports to be a contract between the
parties for their own benefit; one agreeing to
do certain work, and furnish certain materials,
and the other agreeing to pay therefor a stipu-
lated compensation. Their promises are mut-
ual, and in one respect dependent. In consid-
eration that the plaintiff engaged to do the
work and furnish the materials by a given day,
the defendant, on his part, agreed, among oth-
er things, when the work was completed, to
£:ive the plaintiff the five notes therein ciescribed.
lleference was made to the contract of the plaint-
iff with the railroad company in the first in-
stance, as descriptive of the work to be done,
and of the materials to be furnished ; and in the
second instance, doubtless for the reason that,
as a part of the transaction, the Company had
placed, or agreed to place, securities in the
hands of the defendant, to indemnify him for
the liability he thereby assumed to the plaintiff.
Part of those securities were delivered over to
the defendant at the time, and the residue as
soon thereafter as the conveyances could con-
veniently be made. But when we consider the
attending circumstances, the presumption is
much stronger that the arrangement was one
mainly, if not entirely, for the indifidual ben-
efit of the defendant.

Prior to that date, the railroad company had
failed, and was utterly insolvent, owning noth-
ing, it seems, except the securities transferred
to the defendant for his indemnity in this trans-
action, and the franchise of the road. Unlike
what was exhibited in the former record, it
now appears that the defendant had lar^ in-
terests of his own, separate from his relation to
the company as a stockholder, which were to
be promoted by the arrangement. He had
leased to the Company railroad iron for the use
of the road, amounting in value to the sum of
$68,000, and, as a security for payment, held
an assignment of the proceeds of the road to
that amount, with interest, which was to be

Said in monthly installments of five thousand.
Tow, unless the bridges were completed and
the road put in a condition for use, Ihere would
be no proceeds: and as he had already taken
into his possession all the available means of
the Company to secure himself for this new
liability, should the road not be completed, the
Company could not pay for the iron.

In this view of the subject, it is manifest that
the arrangement was one mainly to promote the
individual interest of the defendant. Damage
also resulted to the plaintiff, as is obvious from
the whole transaction. Under his contract with
the Company, they had stipulated to pay him
monthly eighty-five per cent, upon the estimated
value of the materials furnished, and seventy-
five per cent, upon the estimated value of the
labor performed as the work was done. Fail-
ing to receive those monthly payments from the
Company, the plaintiff, as he had a right to do,
stopped the works, and refused to proceed, in
consequence of the failure of the Company to
make the monthly payments. To remedy this

860

dlfQculty, and insure the completion of the
bridges so as to render the road available for
use, this arrangement was made by the defend-
ant. It was not an arrangement to pay a sub-
sisting indebtedness, but only for work to be
done and materials to be furnished; monthly
payments were discontinued, and the plaintiff
was induced, with an advance of $4,400, to
resume and complete the work at his own ex-
pense. Without detailing more of the evidence,
as exhibited in the statement of the case, it will
be sufilcient to say that, in view of all the at-
tending circumstances, we think it is clear that
the promise of the defendant was an oridnal
undertaking upon a good and valid considera-
tion moving between the parties to the written
agreement.

For these reasons, we think the plaintiff had
a right to proceed upon the common counts,
and that it was error in the presiding justice te
direct a verdict for the defendant. It is also
contended by the plaintiff that the effect of the
indemnity given by the railroad company to the
defendant was to take the contract out of the
Statute of Frauds; but we do not find it neces-
sary to determine that question at the present
time.

The judgment of the circuit court wr, therefore,
ref>er8€d, udth coats, and the cause remanded with
directions to issue a new venire.

Clted-7fl U. 8^9 Wall.). 2n, 272; 77 IT. S. HO Wall.).
388 ; 81 U. 8. (U Wall.), 603 : iM U. B.» 83 ; tW U. S., 689,
37 Am. Itep., 168 : 7S Ind., 815 ; 37 Ind., 36 ; 80 Pa. St,
133.

THOMAS OTIS LE ROY and DANIEL

SMITH, Appts.

BENJAMIN TATHAM, Jr., HENRY B.
TATH AM AKD GEORGE N. TATHAM.

(See 8. C, 22 How., 13:^-141.)

Discovery fnust be oj practical use^ or no patent
will be granted — Tatham^s paXent,

However brilliant the discovery of a new princi-
ple may be, to make it useful it must be applied to
some practical purpo86,or no patent can be granted.

Tatbam*8 patent for makinK pipes and tubes
from lead, tin, or soft metals, is sustainable.

Argued Jan. IS, 1860, Decided Mar. 19, 1800.

APPEAL from the Circuit Court of the United
States for the Southern District of New
York.

The bill in this case was filed in the court be-
low, by the appellees, to restrain an alleged iu-
frin^ement by the appellants of a patent for
making lead pipe, and for an accounting and
general relief. A final decree was entered by
the court below, in favor of the compIainaut>,
for $16,815.57, with interest to the date of the
master's report, making an aggregate of $27, •
133.84; whereupon the defendants took an ap-
peal to this court.

A further statement of the case appears in
the opinion of the court.

63 U. S.

1869.

Lk Roy v. Tatham.

182-141

Mmsts. W. C. Nojresand E. W, Stou^h-
ton, for appellants:

1. In ascertaining whether that which is
claimed as novel was before known, courts dis-
regard mere differences in form, proportion,
size, strength and materials. Variations in all
these respects may exist, and still the prior ma-
chine or improvement be substantially the same
as that patented.

2. That the application of an old machine to
a new use is not patentiible, unless such appli
cation requires a change to be made in the ma-
chine or apparatus so applied, in which case
the invention consists in the change so made,
and not in the mere application.

Curt. Pat., sees. 85, 88.

If the mechanical combination of the Han-
sons— assuming them to have been its first in-
ventors— were used for the purpose of mak-
ing lead pipes, by causing the lead to pass
the bridge m a fluid instead of a "set" state,
and to cool within the die and around the core;
no one w^ould question that such use would be
an infringement of their patent.

Indeed, this necessarily follows from the
proposition, ihal the mere application of old
machinery toa new purpose, l» not patentable

Howe V. AbboU, 2 Story, 190, WS; Beany.
Smallwood, 2 Story, 408. 410; Uovey v. SUr^ns,
1 Wood. & >!., 290; Kay v. MarskcUl, 5 Ring.
N. C. 492- Hotchkiss V. Greenwood, 11 How.,
248, 266.

Meters. C. C. Goddard, L. W. God-.
da.rd and C. M« Keller, for appellees:

The discovery of the fact that lead possesses
the property of welding after being separated
in the solid state, was of practical utility. That
alone did not teach how to manufacture leaden
pipes of a better quality; for it was merely an
abstract discovery that lead possesses this prop-
erty, and. therefore, not the proper subject-
matter of letters patent.

But when the Hansons discovered that by
the use of a mechanical combination having a
defined mode of operation, working on lead at
a high degree of heat, but vet in a set or solid
state, it can be separated and perfectly reunited
or welded, to manufacture pipes either of a better
quality or at less expense than by any other
known method, they cannot be said to have
simply discovered an abstract fact not before
known; but how, and by what means to produce
a useful result — a result never before produced
in that way and by such means; the exercise of
which would be useful to society. And in de-
termining what is the new thing discovered or
invented, the discovery of the practical fact
cannot be separated from the employment of
the means by which the newly discovered prop-
erty of the lead is rendered indispensable to the
result to be produced.

The employment of a known mechanical
combination or construction, to produce a given
result not before produced in like manner, by
acting on the material to be wrought in a dif-
ferent condition necessary to prcMduce the re-
quired result, is the subject-matter of patent,
and not a mere double use.

BumU V. Cowl^, Webb. Pat. Cas. , 459, 465 ;
Curt. Pat., sec. 88, and cases there cited.

Mr. Justice McLean delivered the opinion
of the court :
See 22 How.

This is an appeal from the final decree of the
Circuit Court of the United States for the South-
ern District of New York, on a bill filed by the
appellees to restrain the infringement, by the
appellants, of a patent for making lead pipe,
and for general relief.

A suit at law was commenced, after the fil-
ing of the bill, on or about the 10th of May,
1847, to recover damages for the same infringe-
ment.

This action was twice tried — once on the 8d
May, 1848, and resulted in a verdict for the ap-
pellants, which was set aside by the court, and
a new trial awarded. It was tried in May, 1849,
when the jury gave a verdict for the respond-
ents for $11,894 in damages. Exceptions were
taken to the charge, and the judgment was re-
versed, and a new trial ordered in Deceml)er
Term, 1852 14 How., 156.

Before this decision was made, and in Jan-
uary, 1852, it was stipulated between the coun-
sel for the respective parties that the testimony
taken on the last tfial in the action at law
should be read; and it forms the principal part
of the evidence on both sides in this suit.

The action at law was not to be tried again ; but
the suit in equity was prosecuted in its stead.

The patent, under which the plaintiff's claim,
bears date the 14th March, 1846; and in their
schedule they say: **Our invention consists
in certain improvements upon and additions to
the machinery used for manufacturing pipes
and tubes from lead or tin, or any alloy of soft
metals, capable of being forced, by great pres-
sure, from out of a receiver, through or be-
tween apertures, dies and cores, when in a set
or solid state, set forth in the specification of a
patent granted to Thomas Burr, of Shrews-
bury, in Shropshire, England, dated the 11th
of April, 1820, recited in the Repertory of Arts,
&c., London* «fec."

The bill alleges that John and Charles Han-
son, of England, were the inventors of the im-
provements specified, on or prior to the 81st of
August, 1837; that on the 10th of Januarv,
1840, the Hansons assiimed to H. B. & B.
Tatham, two of the defendants in error, the
full and exclusive right to said improvements;
that on the 29th March, 1841, letters patent
were granted for the improvements to the Tath-
ams, as the assignees of the Hansons; that aft-
erwards H. B. & B. Tatham assigned to G. N.
Tatham, the remaining defendant, an undivided
third part of the patent.

On the 14th March, 1846. the said letters pat-
ent were surrendered, on the ground that the
specifications of the improvements claimed were
defective; and a new patent was issued, which
granteed to the patentees, their heirs, &c. , for
the term of fourteen years from the 81 st Au-
gust, 1887, the exclusive right to make and vend
the improvements secured.

The defendants denied the infringement
charged.

A great number of facts were proved, show-
ing the successful manufacture of lead in the
mode stated in the specifications, and partic-
ularly that "pipes thus made are found to pos-
sess great solidity and unusual strength, and a
fine uniformity of thickness and accuracy is
arrived at, such as, it is believed, has never
been attained by any other machinery.'' And

867

133-Ul

SUFRBMB COUBT OF THE UllITBD STATES.

Dec. Tkrsi,

they say the essential difference in the char-
acter of this pipe, which distinfuishes it, as
well as that contemplated hy 'Diomas Burr,
from all others heretofore known or attempted,
is, that it is wrought under heat, by pressure
and constriction, from set metal, and that it is
not a casting formed in a mold.

"And it was proved, that in all the modes of
makinff lead pipe previously known and in use.
it could be made only in short pieces; but that,
by this improved mode, it could be made of
any required length, and also of any size: and
that the introduction of lead pipe made in the
mode described had superseded the use of that
made by anv of the modes before in use, and
that it was also furnished at a less price. ** And it
was proved that lead, when recently become set,
and while under heat and extreme pressure, in
a close vessel, would re- unite perfectly after a
separation of its parts.

In the case of The EottsehiU Company v.
NeOson, Web. Pat. Cas., 683, it is said: "A
patent will be good, though the subject of the
patent consists in the discovery of a great, gen-
eral, and most comprehensfve principle in
science or law of nature, if that principle is, by
the specification, applied to any special purpose,
so as thereby to effectuate a practical result and
benefit not previously attained."

Mr. Justice Clerk Hope, in his charge to the
jury, said: '*The specification does not claim
anything as to the form, nature, shape, ma-
terials, numbers, or mathematical character, of
the vessel or vessels in which the air is to be
heated, or as to the mode of heating such
vessels."

Now, in this case it must not be forgotten
that the machinery was not claimed as a part
of the invention ; but the jury were instructed
to inquire "whether the specification was not
such as to enable workmen of ordinary skill to
make machinery or apparatus capable of pro-
ducing the effect set forth in said letters patent
and specification;" and that, in order to as-
certain whether the defendants had infringed
the patent, the jury should inquire whether
they "did, by themselves or others, and in con-
travention of the privileges conferred by the
letters patent, use machinery or apparatus sub-
stantially the same with the machinery or de-
scribed in the plaintiffs* specification, and to
the effect set forth in said letters and specifica-
tion."

Now, as no specification was claimed in
regard to the machinery, it is not perceived
how the patent could be mfrin^ed, unless upon
the principle that, having claimed to specific
mode of applyins: the heat, he could use any
mode he might prefer, in defiance of the rights
of other patentees.

Now, this cannot be law; certainly it is not
law under the Patent Act of this country. That
Act requires the making and constructing "the
thing, in such full, clear and exact terms, as
to enable any person skilled in the art or
science to which it appertains, to make, con-
struct, and use the same."

Alderson B. Webster's Patent Cases, 842,
says: "The distinction between a patent for a
principle and a patent which can be supported
is, that you must have an embodiment of the
principle in some practical mode described in

368

the specification of carrying into actual effect;
and then you take out your patent, not for the
principle, but for the mode of carrying the
principle into effect."

"It is quite true, that a patent cannot be
taken out solely for an abstract philosophical
principle— for instance, for any law of nature
or any property of matter, apart from any mode
of turnmg it to account. A mere discovery of
such a principle is not an invention, in the
patent law sense of the term." Web. Cases,
688.

However brilliant the discovery of the new
principle may be, to make it useful it must be
applied to some practical purpose. Short of
this, no patent can be granted. And it would
not seem to be a work of much labor for a
man of ingenuity to describe what he has in-
vented.

The "newly discovered property in the
metal, and the practical adaptation of it, by
these means, to the production of a new result,
namely:* the manufacture of wrought pipe out
of solid lead," was the discovery. "There can
be no patent for a principle; but for a principle
so far embodied and connected with corporeal
substances as to be in a condition to act and to
produce effects in any trade, mystery, or man-
ual occupation, there may be a patent."

"It is not that the patentee conceived an ab-
stract notion that the consumption in fire
engines may be lessened; but he discovered a
practical manner of doing it, and for that he
has taken his patent. Thu is a very different
thing from taking a patent for a principle. "

The principle may be the new and valuable
discovery, but the practical application of it to
some useful purpose is the test of its value.

In the case 01 Le Soff Y. TathcMn, 14 How..
156. it was said, "that in the view taken by the
court in the construction of the patent, it was
not material whether the mere combination of
machinery referred to was similar to the com-
bination used by the Hansons, because the
originality did not consist in the novelty in the
machinery, but in brinnng a newly discovered
principle into practical application, by which
a useful article is produced, and wrought pipe
made, as distinguished from cast pipe.

Now, it must be observed that the machinerr
used was admitted to be old, and any dif-
ference in form and strength must arise from
the mode of manufacturing the pipes. The
new property in the metal claimed to have
been discovered by the patentees belongs to the
process of manufacture. The result is before
us. We see the manufactured article, and are
told that its substance is ^eatly modified and
improved, but we derive little or no knowledge
from inspecting it. Except by the known
process of its formation we cannot appreciate
its value, or comprehend the various purposes
for which it was made. We want to see and
understand the processes by whicdi it was
formed, the machinery in action, and a full ex-
planation of its parts.

The claimants say : "We wish it to be un-
derstood that we do not confine ourselves to
the mode of operation herein described, by
making the cylinder rise with the hydraulic
ram and other parts, and keeping the piston
stationary, as the same effects will take plsre

08 I . S.

1869.

Le Roy v. Tatham.

131^141

when the cylinder is stationary, and the power
of the ram is applied to the top of the piston to
cause it to descend into the cylinder, and our
improvements might be applied to a cylinder
and press, fitted up in other respects upon
Burr's plans, whereby the pipe is received over
the top of the machinery. «&c., all which and
other variations will readily suggest themselves
to any practical engineer, without departing
from the substantial originality of our inven-
tion.

"The combination of the following parts
above described is claimed, to wit : the core and
bridge, or guidepiece, with the cylinder, the
piston, the chamber, and the die, when used
to form pipes of metal, under heat and press-
ure, in the manner set forth, or in any other
mode substantially the same."

To the above is added: ''We do not claim
as our invention and improvement any of the
parts of the above -described machinery, in-
aependently of their arrangement and combina-
tian above set forth."

The machinery described in both the above
sentences is only claimed when used to form
pipes of metal under heat and pressure. And
it must be admitted, that the machinery de-
scribed and illustrated by the drawings is suf-
ficiently explicit to show the nature of the in-
vention. If it be admitted that the machinery,
or a part of it, was not new when used to pro-
dace the new product, still it was so combined
and modified as to produce new results, within
the patent law. One new and operative agency
in the production of the desired result woula
give novelty to the entire combination.

The specifications are drawn with care and
no ordinary skill, and they cannot be misunder-
stood. No one can be supposed to mistake the
new product for the machinery through which
it is developed. And in regard to a practical
application of the new conception, it is as nec-
cessary as the conception itself; and they must
unite in the patent. * ' The apparatus described
is properly regarded by the patentees as sub-
ordinate, and as important only as enabling
them to give practical effect to the newly discov-
ered property, by which they produce the new
manufacture." Certainly no comparison was
instituted between the mechanical contrivance
used and the new discovery.

In the case of LeRoyv. Tatham, 14 How.,
176, the court instructed the jury, "that the
originality of the invention dia not consist in
the novelty of the machinery, but in bringing
a newly discovered principle into practical
use."

Principle is often applied to a machine to
describe its movements and effect; and we are
told that the originality of this invention did
not ** consist in the novelty of the machinery,
but in bringing a newly discovered principle
i nto practical effect. " Whether the new manu-
facture was the result of frequent experiments
or of accident, it will be admitted that the
process has been demonstrated to the satisfac-
tion of all observers; and this has b^n done in
the mode described.

In the complicated and powerful machinery
used to produce this result, it is not perceived
why it should not be adverted to, as showing
the most natural and satisfactory explanation

See 22 Bow. U. 8., Book l«.

of the discovery. It is only necessary to ex-
amine the machinery combined, to see that its
parts are dissimilar to others in use; and there
would seem to be no other reason for the use
of the new principle, to the exclusion of the
mechanical structures employed, except a high-
er reach of knowledge. However this may be,
it would seem that, when dealing with a patent-
able subject, its appropriate name should be
given to the machinery by which it was devel-
oped. The admitted want of novelty in the
machinery, referred to so frequently, might in-
vite criticism, if it were necessary, to the case
in 14th Howard; but the case now before us is
in chancery, and has been deliberately con-
sidered.

Up to the year 1837. the date of Hanson's in-
vention, two methods only were known of
making wrought pipe from lead, in the set or
solid state, and these were the Burr method and
the draw-bench method. As soon as the plan of
the Hansons was introduced, they superseded
all other methods.

Both of the above methods were defective —
the draw bench on account of the great labor,
limited length of pipe, produced and unequal
thickness; and the Burr, because of the difli-
culty of holding the core central in the die, in
forming pipes of small caliber.

The superiority of the Burr method, for the
general purposes'^of manufacturing leaden pipes
which require different sizes to be made, was
so slight, as it seems, that for seventeen years
after the date of the Burr patent, not one of
such machines was put in use in the United
States or in Europe.

In this combination of machinery there are
six essential parts:

First. A metal cvlinder, capable of receiving
the lead in a fluid state, and permitting it to
become set or solid therein, and of great strength.

Second. A piston, which is a solid metallic
body, fitted to the bore of the cylinder, to
work therein accurately, to prevent the charge
of lead from escaping around it, and so con-
nected with a hydraulic press, or other motor
of great power, as to traverse the length of the
cylinder with a force appUad. of several tons, to
force out the charge of lead, not in the liquid
state.

Third. A die, which is simply a block of
steel, with a central hole of a cylindrical form,
and of a diameter of the pipe to be made.

Fourth. A core, which is simply a short
cylindrical rod of steel, of the diameter of the
caliber of the pipe to be made.

Fiftb. A bridge or core holder, which is a
plate of metal with apertures, having four or
more arms radiating from the central part,
which has a central hole of the size of the
core.

Sixth. A chamber of construction, located
between the bridge and the die, and extending
from the one to the other, and either conical or
cylindrical, provided the end next the bridge
be made of greater diameter than the die.

It is rare that so clear and satisfactory an
explanation is given to the machinery which
performs the important functions above speci-
fied. We are satisfied that the patent is sus-
tainable, and that the complainants are entitled
to the relief claimed by them.

24 aOO

MS, 504; 318-^30

BuFB£3£B Court of thh United Statjeb.

Dsc. Tjebx,

In the order of the court, entered by Mr.
Justice McLean* appears the followine:

**It is the opinion of this court, that the
complainants in the court below are entitled to
recover from the defendants the sum of $16,-
815.57. Whereupon it is now here ordered,
adjudged and decreed by this court, that the
decree of the said circuit court in this cause be,
and the same is hereby affirmed, to the extent
of the aforesaid sum of $16,815.57, and that it
be reversed as to the residue; and that this
cause be, and that the same is hereby remand-
ed to the said circuit court, with directions to
enter a decree for that amount in favor of the
complainants. And it is further ordered and
decreed by this court, that the costs in the court
below be paid by. respondents in that court, the
appellants here, and that each party pay his
own costs in this court."

8. C- 55 tJ. 8. (14 How.), 156.
Cited-77 U.S. (10 Wall.) 124; 6 Blatchf ., a04 ; 13
Blatchf ., 317 ; 2 flushes, 188.

Mr. JuaUce Wayne delivered the opinion of
the court :

No question was ndsed upon the trial of Ibis
case in the court below, for the consideration of
this court, nor have the plaintiffs in error, by
counsel or otherwise, made one here. The
writ of error was obviously sued out for delay.

We direct the afflrmance of the judgment and
ten per cent, damages.

EDWARD KILBOURNE, DEMING &
LOVE, COLEMAN & FOOTE, and R
B. FOOTE.

THE STATE SAVINGS INSTITUTION of
ST. LOUIS, in the State op Missouri.

(See 8. C.« 22 How., 608-504.)

Where writ of error was suedoutfor delay, Judg-
ment wiU be affirmed with ten per cent, dam-
ages.

Where no question was raised upon the trial In
the pourt below, for the consideration of this court,
and none was made here, and the writ of error was
obviously sued out for delay, this court will affirm
the judgment, with ten per cent, damages and
costs.

Submitted Mar. SI, 1860, Bedded Mar. 26, 1860.

IN ERROR to the District Court of the United
Btates for the District of Iowa.

The defendants in error commenced two
a(^tions at different times in the court below,
against the plaintiffs below, on three bills of
exchange, each drawn by Coleman & Foote on
Edward Kilbourne. and indorsed by R. B.
Foote. the payee, and Doming & Love. Two.
the subject of the second action, were accepted
by Kilbourne. The two cases were subse
(luently consolidated. Judgment was entered
in the court below against Coleman & Foote and
Kilbourne, as principals, and R. B. Foote,
Deming & Love, as sureties.

The case was brought to this court on a writ
of error by the plaintiffs below.

Mr. S. R. Cartisyf or the plaintiffs in error.

Mes87'8. M. Blair and T. Polk» for the

defendants in error.

The case was submitted to the consideration
of the court on the record and a prayer for ten
per cent, damages, pursuant to the 2d section
of the 28d rule, by the counsel for the defend-
ants in error, the counsel for the plaintiffs in
error not appearing.

870

LOUIS L. REFELD, A. B. K. THETFORD
AND TERRENCE FARRELLY, Executors;
MARY P. NOTREBE, Widow, and ED WD.
C. MORTON AND HIS WiFB, MARY F.
MORTON, heirs of Frederick Notrebb,
Deceased, Appte.,

«•.
WILLIAM W. WOODFOLK.

(See 8. C, 82 How., 8ia-e30.)

In equity, payment of price of lands, and traM-
fer of tiUe, correlative obligations — vendee may
pay incumbrance, from purchase money, or fur
defects — after contract executed, the only remedy
is on covenants of deed, or for fraud— purchase
money cannot, after payment, be reclaimed as
secuinty — conveyance of less, with indemnity,
not decreed— nor security for fulfillment of
contract.

A court of chancery regards the transfer of real
property In a contract of sale, and the payment of
the price, as correlative obli^tions.

The one is the consideration of the other ; and the
one failing, leaves the other without a cause.

A vendor is allowed a lien for the price of the
property, agrainst the vendee and his assiirns.

The vendee is permitted to appropriate the Dur-
chase money, to exonerate his estate from a lien or
incumbrance, and, in some cases, to compensate
for original defects in the estate, as respects its
quantity, quality or extent of vendor's interest
therein.

If the contract has been executed by the delivery
of possession and the payment of the price, the
grounds of interference are limited by the cove-
nants of the deed, or to cases of fraud and misrepre-
sentation.

If there is no fraud and no covenants to secure
the title, the vendee is without remedy, bs the
vendor, selling in good faith, is not responsible for
the goodness of his title, beyond the extent of the
covenants in his deed.

A vendee, in possession under a contract of pur-
chase or a deed with covenants, cannot reclaim the
purchase money already paid, to be held as a secu-
rity for the completion or protection of his title.

In a suit for the epeciflc performance of a con-
tract, if it turns out that the defendant cannot
make a title to that which he has agreed to convey,
the court will not compel him to convey lees, with
indemnity against the risk of eviction.

The purchaser is left to seek his remedy at lav,
in damages, for the broach of the agreement.

Where the vendee had notice of an incumbrance
when he made and performed his agreement of
purchase, and did not stipulate for any additional
Indemnity to that resulting from the covenant of
warranty, the court must conclude that he was
willing to rely upon the protection afforded by the
covenants in his deed, and oannot,in addition.oom-
pel the vendor to deposit security for the fuinil-
ment of his contract.

Submitted Mar. 1, 1860. Decided Apr. 9, 1860.

APPEAL from the Circuit Court of the UnitiHl
States for the District of Arkansas.

68 U.S.

1859.

Rbfbld v. Woodvolk.

818>830

The history of the case and a statement of the
facts appear in the opinion of the court.

Mr, Albert Pike, for the appellants:

The first position of the learned counsel for
Woodfolk in the court below, was that, as the
covenant was ''to make a good and sufficient
conveyance in fee simple with general war-
ranty," and as the fee is not in Notrebe's heir,
but in the bank, it follows that thev cannot
perform the covenant. It is too late a day in the
law for us to need to produce authorities to
show that the mortgagor retains the fee in the
land, the mortgage l^inga merelien or security.

The law is perfectly well settled, that the
covenant of seisin that the grantor is seised of a
^ood, sure, sole, lawful, absolute and indefeas-
ible estate of inheritance in fee simple, is not
broken by the existence of incumbrances which
do not strike at the technical seisin of the pur-
chaser.

See Fitzhugh v. Croglian, 2 J. J. Marsh.,
439; Sedgwick v. ffoUenback, 7 Johns., 880;
Runyan v. Mersereau, 11 Johns., 588; 16
Johns., 254; TuiU v. MiO&r, 10 Ohio. 888; Lmis
V. Lewh^ 5 Rich., 12.

The agreement here is, to make " a good and
sufficient conveyance in fee simple," that will
be satisfied by a conveyance by deed of bargain
and sale with covenant of seisin (} d., indefeas-
ible title in fee simple), or of good title and
right to convey, which is the same thing.

The chief question in this case is a perfectly
simple one. Woodfolk proposed to purchase
certain land of Notrebe; he was informed
that it was mortgaged to the Real Estate Bank,
which was insolvent. The mortgage was of
record and the charter of the bank, showing
the liability under mortgage, was a public law
of the land. It was totally uncertain what
would be the ultimate liability under the mort-
gage. It was meant to cover the share of No-
trebe and Cummins, in any of the deficit of the
assets of the bank. Whether there would be any
deficit or not, was not known. Notrebe tol^
Woodfolk all he knew about it ; that the bank at-
torney thought there would not. All the sources
and means ot information oi^the subject, were as
open to Woodfolk as to Notrebe; and knowing,
or having the means of knowing, all that any-
body could know, he purchased the land at the
low price of $10.50 per acre, and took a bond
from Notrebe, to make him "a good and suf-
ficient conveyance in simple, with covenant of
warranty."

Can he. after occupying the land several
years, and paying up the purchase money,
when it is still as uncertain as ever, what, if any,
will be the ultimate liability under the stock
mortgages claim at the hands of a court of
equity, that it shall compel Notrebe's heirs toin-
demuifjr him againh such contingent liability?
or will it not be held that he made a chancing
bargain, an aleatory contract, getting the lana
at the price he did, on account of the contin-
gent incumbrance upon it, and taking the risk
of that incumbrance? That is the whole ques-
tion.

The words of the covenant do not bind No
trebe to make a conveyance with a covenant
against incumbrances.

It is not a case of a defective title, where, as
held in Galloway v. Mnley, 12 Pet., 297, the

See 22 How.

vendee may enjoin payment of the purchase
money, until ability to comply with the agree-
ment for title is shown.

It is very clear, that if Woodfolk had a cove-
nant against incumbrances, and were now to sue
on it, in the absence of any eviction or fore-
closure, he could recover only nominal damages.

DelavergTM v. NorrU, 7 Johns., 858; De For-
est V. TAete, 16 Johns., 128; Stanard v. Eld-
ridge, 16 Johns., 256; Clark v. Perry, 80 Me.,
148.

The^e is no doubf as to the rule, that where a
vendor does not in his covenants specially ex-
cept such incumbrances as are known to the
purchaser, and subject to which the purchaser
agrees to take the property, the fact of their
being known to the purchaser will not prevent
a recovery at law on the covenants. That we
admit. But it is perfectly obvious, that such
knowledge on the part of the purchaser should
operate strongly, if not conclusively, against
his right, to equitable relief, where the cove-
nants are yet not so broken as to give a right to
actual damages.

If suit were now brought on a covenant
against incumbrances, on account of this mort-
gage, nominal damages only could be recov-
ered.

Vaju V. Lard Barnard, Gilb. Eq., 7; Bean v.
Mayo, 5 Me., 94; BandeU v. Mallet, 14 Me., 51 ;
Herrick v. Moore, 19 Me., 813; Richardson v.
Dorr, 5 Vt.. 9; Dams v. Lyman, 6 Conn., 255;
Jenkins v. Hopkins, 8 Pick., 848; LefflngioeUr.
EUiott, 8 Pick., 457; Tt^ v. Adams, 8 Pick..
549; Brooks v. Moody, 20 Pick., 474; Commings
V. Little, 24 Pick., 269; Baldwin v. Munn, 2
Wend., 405; Gilbert y, Wiman, 1 N. Y., 563;
Patterson v. Stewart, 6 Watts. &S., 528; Pome-
roy V. Burnett, 8 Blackf., 148; Foote v. Burnet,
10 Ohio, 817; ffalsey v. Reed, 1 Paige, 446.

The fuia timet jurisdiction of the court of
equity is one which the court has often exer-
cised ; but it will be extremely tender in so do-
ing, because it materially vanes the agreement
of the parties at the time of the transaction.

Flight V. C9ok, 2 Ves.. 620.

And the doctrine seems to be well settled,
that where a deed has been execlited, and the
only covenants in it are for quiet enjoymenc or
of warranty, and so long as there has been no
eviction, actual or constructive, equity will, as a
general rule, refuse to entertain a bill for relief,
either by way of enjoining the purchase mon-
ey, or a fortiori, by rescinding the contract;
and although it has at times been intimated
that the presence of a covenant for seisin may
in some cases fortify the position of the pur-
chaser, it does not appear that the cases gen-
erally draw much distinction between the diff-
erent covenants for title.

Rawle, Cov., 679, and the many cases cited.

If this contract is still executory, then in that
case, as a general rule, the purchaser is entitled
to a good title, free from incumbrances. He
cannot be forced specifically to perform, un-
less such title can be made. If sued for the
purchase money, he may enjoin its collection or
compel the remo^ ofi incumbrances. That is
the general rule. But the question here is,
what relief has he in equity, if making the bar-
gain, knowing of an incumbrance, he pays the
purchase money without requiring it to be re-

371

818-^30

SUFBEME COUBT OF THE UkITBD StATBS.

Dec. Txru,

moved, and when it is of the nature of the one
here complained of.

It U not a question here whether he could
be compelled to peform his contract. He has
performed it; he is in possession; he has used
the land and enjoyed its issues now for nearly
ten years. He aoes not offer to givls it up. He
protests against doing so. If he had all the
covenants he could possibly demand, there has
been no breach of any of them that would en-
title him to damages, and therefore he would
be entitled to recover only nominal damages at
law, and would have no relief in equity ; it is
too clear to be denied.

Rawle, 680.

How can he be entitled to any more relief
because he has not yet taken a deed?

In Anonymous, Freem. Ch., 106, a case was
cited, " where a purchaser brought his bill to
be relieved where incumbrances were con-
cealed ; but was dismissed ; for he ought to have
provided against it by covenants; but it was
said by Rawlinson. that if the purdha&er had
in this case had his mone^ in his hands, this
court 'would have helped him, but not after he
bad paid his monev. "

The difference between the principles that
govern executed contracts, and those that gov-
ern executory ones, is a broad one; before the
consummation of the contract, the criterion of
which event is the execution of the deed, the
right of the purchaser to a title clear of defects
and incumbrances, is an undoubted one, given
by law and not created by the particular terms
of a covenant in the agreement, nor lest or even
weakened by the absence of any stipulation
for covenants, or as to warranty and title ; after
that time, his rights are regulated, both at law
and in equity, solely by the covenants he has
received

Rawle, 604-666. 703, 704.

Looking into the cases on executory con-
tracts, we find as follows: "A purchaser dis-
covering an incumbrance, shall retain so much
for it as remains in his hands."

Troughton v. Troughion, 1 Ves., 86; see, also,
2 8ug. Vend., 419; Hart v. P&rter*i Exs,, 6
Serg. & R.,^201; Witherspoon v. Anderson, 8
Desaus., 246.

Notrebe, by his bond for title, did not agree
to warrant against incumbrances. He agreed
to make a good and sufficient conveyance m fee
simple, with general warranty. A deed, with
covenants of title and right to convey and gen-
eral warranty, without any covenant against
Incumbrances, would fully satisfy that con-
tract.

When a man covenants against incumbrances
he cannot be allowed to show by parol that
a particular incumbrance was accepted, for
that would be to contradict and vary the terms
of a written instrument; and therefore he
cannot show that the vendee knew of such in-
cumbrance, because that is offered solely as
tending to prove that he took the contract sub-
ject to that incumbrance. That is the rule and
the reason of the rule.

Funk V. Voneida, 11 Serg. & R., 112; LeviU
V. WUhrington, Lutw., 817; Hubbard v. Nor-
ton, 10 Conn., 422; Chrice v. ScarhorougK 2
Spears, 654; Harlow y. Thomas, 15 Pick., 70;
Townsend v. Weld, 8 Mass.. 146; P&rter v.
Xoyes, 2 Me., 22; DonnHly. Thompson^ 10 Me.,

872

117; CoOingwoodY. Irwin, 8 Watts, 809; Sity-
dam V. Jones, 10 Wend. , 184

Woodfolk does not ask to be excused from
performing his contract — ^that is, from taking
the land. He has paid for it and wishes to
keep it.. There is no suit against him to com-
pel him to take it; none by him to procure a
rescission. He has no covenant on which be
could now recover. He has no right to ask a
covenant a^inst incumbrances. And know-
ing of the incumbrances when he {forchased,
and when he paid for the land, he must be sat-
isfied witt^ such covenants as he has, and with
his legal remedy thereon, whenever he is en-
dama^d. Until then, as he has no cause of ac-
tion at law, so equity has no relief to give
him.

AUtnY. Lee, 1 Smith, Ind., 12; 1 Cart.. 58;
2 Hughes' Prec., 2d ed., 205; Sawige v. WhUe-
bread, 8 Ch. R., 24; OgUvie v. Foljamhe, 8
8 Meriv., 48; Rawle, 607, and cases there cited;
Ludwig v. Hunieinger, 5 Watts & 8., 58; Ross,
Appeal. 9 Pa.. 497; MeOhee v. Jones, 10 Ga..
127; Fludyer v. Cocker, 12 Ves., 27; Burroughs
V. OaJdey, 1 Meriv., 52; Margravine of An»-
pack V. Nod, 1 Madd.. 816.

We have sought in vain for a case where a
bill, asking indemnity alone, has been sustained
or even heard of, filed by a purchaser, when
that indemnity was sought against an encum-
brance by mortgage well known to the pur-
chaser at and before the time of purchase, and
where he had fully paid the purchase money,
without requiring indemnity or complaining
of the incumbrance.

It is a mere attempt "to amend the plaint-
iff's security in equity; to give him a better
remedv for his money in chancery, than he had
provided for himself bythe condition of the
bond which he took." There was no fraud in
Notrebe; he told Woodfolk all that he himself
knew about the incumbrance; the bill is a plain
attempt to get a court of chancery to mend
Woodf oik's bargain, and we see no belter
ground to assign for the application, than *' thut
chancery ought to suffer no man to have an ill
bargain."

A bill filed for eompensation singly, cannot
be maintained.

The jurisdiction of equity in cases of com-
pensation, is only incidental and ancillary to
that of giving relief by enforcing the perform-
ance of contracts fer the sale of real property.

Newham v. May, 18 Price, 749.

The court will give it when,tiile to a part of
the property fails, and it decrees that the pur-
chaser shall accept, or he agrees to accept, that
to which there is a good title.

Besant v. Richards, 1 Taml., 509; Pratt v.
Law, 9 Cranch. 458, &c.

Mr. R. J. Mei^ay for appellee:

Since the covenant is to convey, that is to
transfer and pass the fee, well and sufficiently,
and the fee is not in Notrebe*s heirs, but in the
Real Estate Bank, it follows that they cannot
perform the covenant. No one can dispute the
proposition, that if a man agrees to sell me an
estate in fee simple and cannot make a title to
the fee simple, I can insist upon his giving me
all the title he has.

Wood V. Griffith, Wils. Ch., 44; cited b?
Sue. Vend., ch. 7, sec. 1, part 88, 7th Am. cd.

Not only am I entitled in such a case to have

68 U. S.

1859.

HeFBLD v. yTOGDVOJJL

818-880

performance from the vendor, so far as he is
able, but I have a right to compensation on
those points which do not admit of fulfillment.

Waters y, Travis, 9 Johns., 464; cases cited
by Perkins in note, and Sug. , ch. 7. sec. 1 . par.
33, and cases cited by Hare and Wallace to
White & Tudor's Lead. Cas., Vol. II., part 2,
p. 35.

These cases and many others show that the
compensation is to be made by an abatement or
reduction of the purchase money, when it has
not been paid.

See Sugden, ch. 7, sec. 1, part 34; JopUng v.
Dool^^, 1 Yerg., 289-290.

The same principle governs the case of an in-
cumbrance on the land, ami even the case of an
adverse title, which, when extinguished by the
vendee, inures to the benefit of the vendor, he
making an abatement in the purchase money
equal to what it cost to clear the title.

Meadows v. Hopkins^ Meigs, 181, 186; Knox
V. Thomas, 5 Humph., 573; UaVUnoay v. FKnley,
12 Pet., 264; See Searcy v. Kirkpatrick, Cooke,
211; MitcheU v. Barry, 4 Hayw., 186. 148.

If, before the payment of the purchase money
in this case, Woodfolk discovering the incum-
brance of the $12,000, had paid it to the bank,
he could have had an abatement of the pur-
chase money pro tanto. If. after the payment
of the purchase money, and being put in posses-
sion, he had then for the first time discovered
the fact that the land was subject to the mort-
gage for the $12,000, it is clear that Notrebe
would have been compelled to refund or extin-
guish the mortgage. But it is said that Wood-
folk had notice of the mortgage for $30,000.

Counsel then reviewed the circumstances of
the case on this subject, and contended that it
could not be claimed that Woodfolk, in his
purchase, intended to or did assume the risk of
the incumbrance.

In this case we have a covenant on the part
of Notrebe, to make Woodfolk a eood and
sufficient conveyance in fee simple with gener-
al warranty. Notrebe is to cause Woodfolk to
have the land usefully against all persons.

Pothier on Sales, sec. 203.

The deed must transfer the fee simple against
all claims whatsoever. This is implied in the
word ••conveyance."

See Clute y., Robinson, 2 Johns., 6\2; Everson
V. KirUand, 4 Paige, 638; Carpenter v. Bailey,
17 Wend., 244; Traver v. Hoisted, 23 Wend.,
66; Pomeroy v. Dniry, 14 Barb., 424; and other
cases cited in Rawle, Cov. , 464, 566.

So far from there being in this case a stipula-
tion ** in express terms" or " broad Iv stated,"
that Woodfolk should take such title as No-
trebe had, exactly the reverse is broadly ex-
pressed in the covenant, to make ' 'a good and suf
fficient conveyance in fee simple. Sometimes,
indeed, a purchaser has waived his right to ob-
ject to the seller's title. Taking possession,
however, is merely evidence of intention. If
possession is authorized by the contract to be
taken before a title is made, the fact of posses-
sion cannot by itself be used against the pur-
chaser, for that would be contrary to the very
terms of the contract.

Sugd., ch. 8, sec. 1, part 22-24. 33, 34, &c.

It is familiar law, that the general principles
of the contract of sale, both in this country and
in England, recognize and enforce, while 'it is

Bee 22 How,

still executory as in this case, the right of the
purchaser to a title clear of defects and incum-
brances.

Rawle, Cov., 566; BurweU v. Jackson, 9 N.
Y., 635, supra.

But practically, how is this to be done in a
case circumstanced as the one in hand? Before
the payment of the purchase money, we have
seen that it can be done by an abatement of the
purchase money to an amount equal to the cost
of removing the incumbrance. And the vendor
must discharge an incumbrance not disclosed
to the vendee, whether he has or has not agreed
to covenant against incumbrances, before he
can compel the payment of the purchase money.

Sugden, ch. 12, sec. 2, part 2.

Although the interest money has been paid
and the conveyance is executed, yet, if the de-
fect do not appear on the face of the title deed,
and the vendor was aware of the defect and
concealed it from the purchaser, or suppressed
the instrument by which the incumbrance was
created, or on the face of which it appeared, he
is in every such case guilty of a fraud ; and the
purchaser may either bring his action on the
case or file his bill in equity.

Sugden, ch. 2, sec. 2, part 17.

In Sergeant Mayna/rd*s case, he was de-
nied relief because he had parted with his money
and taken a bond for repayment of it on a cer-
tain condition.

2 Freeman, 2.

In our case, Woodfolk took a bond to make
him a good and sufficient conveyance in fee,
and then paid the purchase money. And aft-
erwards he discovers that the land is incum-
bered for more than its entire value, the incum-
brance having been represented to him as of no
validity or force, and its true nature sedulously
concealed, and the deed not even shown.

Now, in these circumstances, he is entitled
unquestionably to a conveyance in fee simple
that shall be effectual.

If the court be of opinion that Woodfolk is
entitled to " an operative conveyance — one that
carries with it a good and sufficient title to the
lands conveyed," as Kent said in Gluie v. Rob-
inson, 2 Johns., 612, already cited, there seems
to be no practical way of effecting this, but by
compelling Notrebe's'heir and representatives
to extinguish the mortgage, or to buy so many
state bonds as shall be equal to the stock bond.

By one of the conditions of the mortgage, the
land is to be discharged, if Notrebe and Cum-
mins, or their heirs or assigns, shall well and
trulv pay, or cause to be pafd, to whom it may
be due, so much or such sum of the bonds of
the State of Arkansas issued by said State in
favor of the bank aforesaid, and the interest on
said bonds of the State, or such part thereof as
shall be equal to the stock allowed and granted
to them, Notrebe and Cummins.

Now, this suggests the relief to which Wood-
folk seems in reason and justice entitled. Let
Notrebe's heirs and representatives buy $30,000
of the state bonds and deposit them in this
court, and the land will be discharged.

Or, if it is less onerous, let them indemDify
Woodfolk by granting hin a mortgage upon
some other property, which may enable him to
protect his land in the event the mortgage of it is
enforced in favor of the holders of the state
bonds.

878

81»-d80

StTFBBins Court or thb Uhitbd Statbs.

I>Bc. Tbrm,

It is plain that the heir of Notrebe cannot
make a good and sufficient conveyance in fee
simple, without in some way releasinfi^ the es-
tate from the mortgage; and it is equally plain,
that there is no way of releasing the estate from
the mortgage but by paying a sum equal to the
stock. And Woodfolk might insist upon it;
but if he is willing to take such title as can
be decreed out of the heir, with an indemnity
ajB[ainst the mortgage, that is a relief which u
within the power of a court of chancery. The
subject will be found pretty fully discussed in
8ug. Vend. & P., ch. 10, sec. 2. And the
weight of the cases there stated and commented
on, cannot certainly be regarded as weakened
in the least by what is reported to have been
said by Lord Eldon in BcUmanno v. Lumley, 1
Yes. & B. , 225, cited by Sugden in ch. 7, sec.
2, part 86. The case, when examined, cannot
possibly have the sli^hest weight, seeing that it
IS reported in so cruae a manner as to leave us
wholly in the dark as to its circumstances.

7he indemnity which the heir of Notrebe
seems bound to make, will be as already sug-
gested, the substitution of another estate instetui
of the lands sold to Woodfolk, to be held by a
trustee, to save him harmless against the mort-

fage. When we ask this, we only ask that
Totrebe's heir shall assume the burden of No-
trebe*s debt, and relieve the complainant against
liability for it — a liability which, in his opin-
ion, is not merely visionary, but is extremely
likely to embarrass and harass him in 1861, only
a year hence.

See IlaUeyy. Grant, 18 Yes., 78; Eomiblato
v. Shirley, 18 Yes., 81; Cassamqf&r v. Strode,
Wils. Ch., 428; Warren v. Bateman, 1 Flan.
& K., 448.

But if the court should see fit to refuse this
relief, and should hold that complainant is
obliged to take such titles as is vested in No-
trel^'s heir, and that the bill must be dismissed
as to the Real Estate Bank and its trustees, and
the personal representatives of Notrebe; vet it
is indispensably necessary as to the heir oi No-
trebe. She Ib an infant and a married woman,
and it is (juite impossible that the equity which
is vested m her can be devested and vested in
the complainant, but by a decree in equity.

Mr. Jxutice Campbell delivered the opinion
of the court :

The appellee (Woodfolk) filed this bill in the
circuit court against the executors and heirs of
Frederick Notrebe. deceased, and the trustees
of the Real Estate Bank of Arkansas.

He represents that, in 1845, he concluded an
agreement with Notrebe for the purchase of
fourteen hundred and seventy- eight acres of
unimproved land in Arkansas, for $15,518, a
portion payable in cash, and the remainder in
installments, secured by his notes and bond.
Notrebe and his wife obligated themselves,
when the pay ment should be completed, to con-
vey to him the land in fee simple, " by a good
and sufficient deed, with general warranty of
title, duly executed, according to law."

The appellee has established a plantation upon
the land,and has greatly improved its value. He
completed the payment in 1850, when the exec-
utor of Notrebe offered a deed executed by his
widow and heir at law, in which there was a
covenant of warranty, in fulfillment of the

874

agreement of his testator. The appellee de-
clined to accept this, because the land had been
mortgaged to the Real Estate Bank of Arkan-
sas, in 1837, by Notrebe, to secure the payment
of his note for $80,000, payable in October,
1861, with five per cent, interest annually,
which Notrebe ha[d given for three hundred
shares of the stock of that bank. The appellee
charges that the existence of this mortgage was
concealed from him until after the conclusion
of his agreement, and that afterwards he was
deceived by misrepresentations of the condition
of the title, until he had paid the whole of the
purchase money. He prays that the title be
examined, and that the defendants be required
to remove the incumbrance, or to give him ef-
fectual indemnity against it, and that the dis-
tribution of the estate of Notrebe be restrained
until this be done.

The defendants answered the bill, and have
successfully repelled the imputations of fraud
and misrepresentation, but admit the existence
of the mortgage, and fail to impair its validity.

The circuit court, upon the pleadings and
proofs, declare that the " entire transaction" be-
tween Notrebe and the appellee '* was bonafidt.
and free from iraud," and that the latter had
notice of the mortgage as a subsisting and oper-
ative incumbrance upon the land before he con-
cluded his contract; but that Notrebe had
agreed to convey the land free of incumbrance
and with warranty of title, and that the vendee
is entitled to the performance of that contract;
but that the debt of the decedent, not being at
maturity, and of a character not to be ascer-
tained before that time, all that could be done
would be to provide an indemnity against the
peril it created.

The court proceed to require of the executors
to remove the incumbrance whenever it can lie
done, and then to convey the land by a deed
with warranty, and ^ith the relinquishment of
dower by the widow; and meanwhile, that
they should deposit with the clerk of the court
bonds of the State of Arkansas, for the amount
of Notrebe's note and the interest ($61,500), to
be held and appropriated under the order of
the court as indemnity, or that the executors
might, in part or for the whole, convey to the
clerk unincumbered real estate of the same
value, for the same object and under the same
conditions.

The Real Estate Bank was established on a
loan, by the State of Arkansas, of its bonds,
which the bank sold to form its capital. The
principal and interest of these bonds were to be
paid by the bank; and its means of doing
so were afforded by the securities obtained from
the loan of its capital and profits of business,
and the bonds ana mortgages of the stockhold-
ers, to the extent of their subscription of stock.
Each stockholder having given a bond and
mortgage to the bank corresponding to the pro
rata amount of the state bonds issued to the
bank, as compared with the stock, and which
were pledged for the payment of the state
bonds, the sum to be paid by any shareholder
on this debt depends upon the degree of the in-
solvency of the bank. In case of the loss of its
entire capital, the stockholder becomes liable to
pay his entire debt.

The pleadings and proofs in this case show
that the bank muB suffered a Ion of a portion of

68 U.S.

im.

Hbpbld v. Woodfol .

318-S30

iu capital, but no data are afforded to ascertain
the amount of the loss. The decree of the cir-
cuit court assumes that the loss may be total;
and the indemnity awarded was determined as
if the fact would correspond with the possibili-
ty. This appeal was made to test the validity
of this decree.

A court of chancery regards the transfer of
real property in a contract of the sale and the
payment of the price as correlative obligations.
The one is the consideration of the other; and
the one failing, leaves the other without a
cause. In Ogmie v. Foljambe, 8 Mer., 53. Sir
William Grant says: '* The right to a good title
is a right not growing out of the agreement of
the pfurties, but which is given by law. The
purchaser insists on having a good title, not be-
cause it is stipulated for by agreement, but on
the general right of a purchaser to require it."

Upon this principle, a vendor is allowed a
lien or privilege for the pric^ of the property
against the vendee and his assigns; ana the
vendee is permitted to appropriate the purchase
money, to exonerate his estate from a lien or
incumbrance, and in some cases to compensate
for original defects in the estate, as respect its
quantify quality, or extent of vendor's interest
therein.

The cases cited on the part of of the appellee
support this doctrine, and confirm the argu-
ment that he was entitled, under his contract
(having no reference to extrinsic circumstances),
to the fee simple estate, without diminution.
Oailoway v. Finley, 12 Pet., 264; BurweU v.
Jack9on, 9 N.Y., 535; CuUum v. Bank of Ala.,
4 Ala., 21.

But such circumstances may very materially
modifv the situation of the parties, and indis-
pose that court to interfere between them, even
m cases within the jurisdiction of the court. If
the contract has been executed by the delivery
of possession and the payment of the price, the
grounds of interference are limited by the cove-
nants of the deed, or to cases of fraud and mis-
representation. ' ' The cases will show, ".'say this
court, '* that a purchaser in the undisturbed
possession of the land will not be relieved
against the payment of the purchase money on
the mere ground of defect of title, there being
no fraud or misrepresentation; and that in such
a case he must seek his remedy at law, on the
covenants in his deed; that if there is no fraud
and no covenants to secure the title, he is with-
out remedy, as the vendor, selling in good faith,
is not responsible for the goodness of his title
beyond the extent of the covenants in his deed.
FiaUon v. Tayhr, 7 How., 132.

This rule, experience has shown, reconciles
the claims of convenience with the duties of
good faith. The purchaser is stimulated to
employ vigilance and care in reference to the
things as to which they will secure him from
injustice, while it affords no shelter for bad
faith on either part.

The intermediate cases — those in which the
parties have advanced in the completion of their
contract, and are still willing to abide by it, and
there arises a real inability or a well-founded
apprehension of danger, in that stage of their
proceedings, to the completion of the contract
— have created much embarrasment. Some of
these cases have b€«n settled upon terms of com-
pensation, in which the court of chancery has

8ee29How,

exercised a doubtful Jurisdiction, in modifying
the conditions of the contract according to the
supervening circumstances. White v. Ouddon,
8 CI. & Fin., 76d; Thomas v. Bering, 1 Keen.
729; Dart, Vend, and P., 499, et seg.

We have met with no case in which a vendee,
in possession under a contract of purchase or a
deed with covenants, has been permitted to re-
claim the purchase money already paid, to be
held as a security for the completion or protec-
tion of his title. The Roman law permitted the
vendee to retain the purchase money in his
hands, as security against an impending danger
to the title; but denied a suit for restitution,
after payment, for that cause. " We must not,"
says Troplong, " hastily break up a contract
which the vendor may at last be able to fulfill.
There is no analogy between the case in which
the purchaser is allowed to retain the price as
security, and that in which he would force the
vendee to restore it for that purpose. Between
the ri^ht of retention and that of restitution of
the price, there is the distance between the statu
QUO and rescission. Trop. de Yente, No. 614;
Dalloz, Juris, gen. tit. de Vente, sec. 1170.

The decree of the circuit court does not direct
the restitution of the purchase monev to the
vendee, nor its application by the vendor to as-
sure the attainment of the object of the con-
tract; but it sequestrates property of the vendor
of four times the amount, to be lield or disposed
of by the court in its discretion, to assure the
accomplishment of that object. In the case of
MiUigan v. Cooke, 16 Yes., 114, Lord Eldon
made an order that the purchaser should be
compensated for the difference in the value be-
tween the title contracted for and that exhibit-
ed ; and if that difference could not be ascer-
tained, the master was directed to settle the
security to be given by the defendant as indem-
nity to the purchasr against disturbance or evic-
tion; and a similar order was made in Walker
V. Barnes, 3 Madd. , 247. But there were con-
ditions in the contract that authorized the
order.

In Balmanno v. LurrUey, 1 Yes. & B. , 224,
and Paton v. Brebner, 1 Bligh. P. C, 42, the
cases in which such a relief could be granted
appear to be limited to that class. In the latter
case Lord Eldon said: *' This suit is in sub-
stance or effect (allowing for dissimilarities be-
tween English and Scotch proceedings) in the
nature of a suit in a court of equity in England
for the specific performance of a contract. In
such a suit, if it turns out that the defendant
cannot make a title to that which he has agreed
to convey, the court will not compel him to
convey less, with indemnity against the rif>k Qf
eviction. The purchaser is left to seek his
remedy at law, in damages for the breach of the
agreement."

In AylettY. Ashton, 1 Myl. & C, 105, the mas-
ter of the rolls, upon the authority of the cases
cited,said: *' Parties, no doubt, may con tract for
a covenant of indemnity ; but if they do oot, the
court cannot compel a party to execute a con-
veyance and to give an inaemnity." To the
same effect is Bidgway v. Qray, 1 Macn. & G.,
109.

The appellee does not seek to rescind this
contract: nor does he disclose any imminent
peril of disturbance or eviction, as the effect of
the existence of the mortgage. The record

S75

44S^L

BUFRBMB COtJBT OS* THS UnITBD StATBS.

Dbc. TstLU,

shows that the widow and heir of Notrebe,
whose covenant of warranty has been offered to
the appellee, are either of them able to respond
to the damages that would be awarded upon the
breach of that covenant. The appellee had
notice of this incumbrance when he made and
performed his agreement of purchase, and
did not stipulate for any additional indemnity
to that resulting from the covenant of warranty.
We must,therefore,conclude that he was willing
to abide the settlement of the affairs of the Real
Estate Bank, and to rely upon the protection
afforded by the covenants in his deed. We have
no reason to suppose that the vendor would
have consented to deposit in the hands of a
stranger four times the value of the property
he sold, as a security for the fulfillment of his
contract; nor can we superadd this to the
other obligations he has assumed.

Our opinion is, that the decree of the district
court is erroneous, and must be reversed.

The deeds tendered seem to be in conformity
with the stipulation of the vendor in the agree-
ment. The vendee may elect to take these, or
he may retain the agreement.

In either e<ue, his bill will be diamiseed vnih
eosie; and for ihie purpoee the cause is re-
manded.

JOSE MARIA FUENTEB, Appt.,

THE UNITED STATES.

(Sees. C.ae How., 448-161.)

Beeitals in Mexican grants, not evidence oj pre-
UnUna/ry requiremerUs, where there is no record
— unreasonable delay to perform conditums of
grant, evidence of ahando^nment.

It will not be presumed that the Governor of Cali-
f orala had dispensed with the customary require-
ments for granting land, because there may be, in a
paper said to t>e a grant, a declaration that they had
been observed: particularly in a case where the
archives do not show any record of such a grant.

The Act of 18:24, and the lieguiations of 1828, are
limitations upon the power of the governor to
make grants of land.

Where the petition, and the other requirements
following it, have not been registered in the proper
office with the grant itself, a presumption arises
against its genuineness.

Slight testimony should not be allowed to remove
the presumption.

In this case no evidence can be found on its rec-
ord, to sustain the genuineness of the paper under
which the land is claimed.

There is none to prove its registry, or to connect
it with the book of records which was burned, or
that any one of the precautionary requirements
had been complied with, or that such a paper as
that in question had been delivered to the claim-
ant ; and no such paper had been sent to the De-
partmental Atssembiy for its acquiescence.

Prerequisites for a grant of land should not be
assumed to have been observed, on account of a
recital in the paper or grant that they had been.

If none of the preliminary requirements of the
Act of the Mexican Congress of 1824, and of the
Kegulatlons of 1828, are to be found in the archives,
and it cannot be established by the proof that they
were registered there, this court will not presume
that they were preliminary to a vrant, beqause the
governor recites in the grant that they had been
observed.

Opinion in Cambuston's case reaffirmed.

when it shall appear that none of the preliminary
steps for granting land in California have been
taken, this court will not confirm such a claim.

Where there was no proof of a survey or meas-
urement of the land, or any performance of Its

876

conditions. It may be inferred that the grantee had
abandoned his claim.

When a grantee allows years to pass, after the
date of his grant, without any attempt to perform
them, and without any explanation for not having
done so. and then for the first time claims the land,
after it had passed by Treaty frdm the national
Jurisdiction which granted it to the United States,
such a delay is unreasonable, and amounts to evi-
dence that the claim to the land has been aban-
doned.

Argued Dec, 20, 1859. Decided Apr. 9, 18G0.

APPEAL from the District Ck>urt of the Unit-
ed States for the Northern District of Cali-
fomU.

This case arose upon a petition filed before
the Board of Land Commissioners in California,
by the appellant, for the confirmation of a claim
to eleven leagues of land, situated in the Comi-
ty of Santa Clara.

The Board of Land Commissioners entered a
decree, rejecting the claim on the ground that
there had been no survey or measureipent of
the land and no performance of the conditions
by the n^ntee.

The district court, on appeal, having afilrmed
this decree, the petitioner took an apical to this
court.

A further statement of the case appears in the
opinion of the court.

Messrs. M. Blair and C. Benham, for ap-
pellant:

1. The grant is valid and ought to be con-
firmed, notwithstanding there was no approval
of the Departmental Assembly and no judicial
measurement.

U. a. V. Frimont, 58 U. 8. (17 How.), 560;
U. 8. V. Beading, 69 U. 8. (18 How.). 8: U. 8.
V. Cfrue Cervantes, 59 U. 8. (18 How.), 553; U.
8. V. Vaca. 59 U. 8. (18 How.), 558; U. 8. v.
Larkin, 59 U. 8. (18 How.), 563.

2. The grant was duly recorded, and on the
faith of the grant, the original is ordered to be
delivered to the grantee who now produces it.

3. The proof shows that it was written and
recorded in 1843, when it is conceded Governor
Micheltorena had full authority to grant lands.

4. The authenticity, date and recording of
the ffrant beinsr clearly established, and the grant
itself recitine that the grantee had petitioned for
the land, and that all " the necessarv steps and
the precautionarv proofs required by the laws
and regulations had been taken, the law will
presume that the governor had performed his
duty in these respects, and had not exceeded
his powers.

U. 8. V. PeraUa, 60 U. 8. (19 How.). 847; U.
8. V. Arredondo, 6 Pet., 729; Delassus v. U. S.,
9 Pet., 134; Minter v. CrommeUn, 59 U. 8. (18
How.), 88; BagneU v. Broderiek, 13 Pet., 448.

If it is to be assumed that no grant is valid
unless the grantee can show affirmatively, and
independently of the recitals in the grant, that
all the preliminary steps required by the Act of
the Mexican Congress of Aug. 18. 1824, and
the Regulation of Nov. 21, 1828. have been
strictly complied with, it may be safelv asserted
that out of eight hundred grants made in Cali-
fornia, scarcely one would stand such a test.
All the documents, except the original grant,
remained in the custody of the governor or hfs
subordinates. To require that the grantee shall
be responsible for the safe keeping of those
documents, or in case of their loss, to be pre-

68 U.S.

1859

PUENTEB V. TTniTBD StATB8,

44Mei

pared with oral proof to establish, not only the
fact of the loss or destruction of the papers, but
their contents, would be to impose onerous con-
ditions on the erantee, not only perilous to his
rights, but fatal to the security of titles. When
he produces a grant in due form and properly
recorded, and which recites that all the pre-
liminary steps have been performed, he may
safely rest upon it as a sufficient muniment of
title. He may Justly claim that the government
is estopped by the solemn act of its own agent
from denying that those things were done which
it was the duty of the governor to do,and which,
under his hand and official seal, he admits
were performed. Such have been regarded to
be the well-considered doctrines of this court as
established in a series of decisions, and no rea-
son is perceived why this case should be deemed
an exception to the general rule.

5. This grant has only the usual conditions;
and thev were all subsequent conditions, the
non performance of which would not, ip90 facto,
avoid the grant.

6. The fact that the grantee was a minor, did
not invalidate the /;rant, There is nothing in
the Act of 1824, or the Regulations of 1828. re-
stricting the power of the governor in this re-
spect. Under the Mexican and civil law, the
aee of majority was twenty-five; and the policy
of the Colonization Laws was not at the vari-
ance with a grant of lands to a person under
that a|^. The circuit Judge, who delivered
the opinion of the district court rejecting this
claim, infers that the grantee must have im-
posed upon the governor by representing him-
self as an adult, able to f ulnll the conditions of
the grant. The reply to this argument is, Ist.
That it is wholly unwarranted by any fact ap-
pearing in the case; 2d. Fraud is never to be
presumed, but must be proved ; 8d. There is not
a particle of proof that the grantee was unable
to fulfill the conditions; 4th. There is no proof
that he did not fulfill them; 5th. Every grant
made to an old and infirm person, who might
afterwards appear to have been unable to fulfill
the conditions, would raise the same presump-
tion of fraud.

7. If it be conceded that the conditions
were not fulfilled, this fact can raise no pre-
sumption of abandonment in this case. In the
Fremont case, a failure to perform the condi-
tions was excused because of the unsettled state
of the country, and the danger arising from
hostile Indians in that vicinity. In the case at
bar, the country was not only in a revolution-
ary state from the date of the grant until about
the period when the American forces took pos
session of the country, but the grantee was a
minor, and so continued until the last-named
period. We maintain that no presumption of
abandonment will arise against a minor, under
either the civil or common law.

Under the Spanish law in force in Mexico,
the rights of minors are more fully protected
than even at coihmon law, as will appear by
reference to 1 Dom. Civ. L., p. 529, Book 4,
tit. 6, sec. 2, where the law relating to minors
is fully collated.

In the first subdivision of this section, the
author says: "The law gives relief against all
acts and deeds by which their minority may
have engaged them in some damage."

Under the civil law, the term '* abandon-
Bee 22 How.

ment" has a technical and definite meaning, to
wit: '* That if a man be dissatisfied with his
unmovable estate, and abandon it immediately
and depart from it corporeally, with an intention
that it shall no longer be his, it will become the
property of him who first enters thereon.

1 Partidas Law, 50, p. 865; Escriche. p. 5,
tit. " Abandono de Cotas **; Landes v. Perkins,
12 Mo., 238.

In certain cases, the doctrine of abandonment
is rigidly enforced under the Spanish laws, but
these are special cases, and this is not one of
them.

See Escriche, p. 6.

An intention to abandon his estate will not
be presumed against a minor, nor will prescrip-
tion run against him.

Escriche, p. 1230, tit. '"Menors"; Calvit v.
Innis, 10 Mart. La., 287; 9 La.. 379; Orso v.
Orso, 11 La., 62.

It is evident, therefore, that under the Span-
ish law of abandonment, the grantee in this
case did not lose his land.

But in such cases, how is the fact of aban-
donment to be ascertained 7 The only effect of
it is, not to forfeit the land to the sovereign,
but to enable the first occupant to claim it as
his. Before his right is established, it must be
done by some judicial proceeding: and no
other is known to the Spanish law, than the
process of '* denouncement." It is a judicial
proceeding, conducted with much formality and
after due notice.

Rockwell's Spanish and Mexican Law, 50-^6.

It is not pretended that any ** denouncement **
of this land occurred; nor were any proceed-
ings had to devest the title of the grantee; so
that even if he were an adult, the Spanish law
of abandonment would have no application to
his case; but being a minor, his land was not
subject to denouncement.

The court, before denying the confirmation,
must be satisfied that the grantee actually in-
tended to abandon his claim. It is a question
of Intention, to be deduced from all the cir-
cumstances of the case.

Bouv. Law Die, tit. Abandonment; Steph-
ens V. Mansfield, 11 Cal., 363.

8. The title of the grantee is a legal, and not
an equitable one. His title is a patent, ana
conveys the legal estate which would maintain
ejectment.

Ferris y. Goover, 10 Cal., 589.

In several cases before this court from Cali-
fornia, grants similar to this have been deemed
and held to be equivalent to patents. The
claimant's application for a confirmation is not,
therefore, addressed to the equity side of the
court; but he invokes its judgment upon the
question whether or not he has a valid legal
title to the land; and if so, he asks that it be
confirmed.

If the claimants had only an equitable title,
and was appealing to a court to perfect it into
a legal estate, the court might well examine
into the equities, and decide whether or not it
was incumbent upon a court of equity to
grant a relief asked for ; but if he already has
the legal estate, and only asks the judgment of
the court on that point, it would appear to pre-
clude all inquiry into mere equities, unless it
should appear that his legal title was fraudu-
lently obtained, or for some reason ought to

877

44]M6t

StTFBBKB COUBT OF THA UkITSD StATBS.

Dec. Tkrm,

be devested. In this case no such reason ap-
pears.

Mr, J. S. Black* Atty-Gen., for the appel-
lees:

This claim is for a tract called Potrero, sit-
uated within the limits of the ex- mission of
Ban Jose, bounded on the north by the Warm
Springs, on the south by Pala, on the west by
the ranchos of Higueria and Ckilinda, and on
the east by mountains, containing 11 leagues.

The claimant, Fuentes, is a nephew of Mi-
cheltorena, and a mere lad at the date of the
grant, who came to California with his uncle,
went away with him and never ijetumed again,
except when he came back as a witness for
Limantour. His relationship to the governor
is mentioned in the Limantour documents.
His minority is proved by his own witness, Ah-
rego, and that he never saw the land, or went
near it. is one of the facts mentioned by Jt^s
McAllister in his opinion.

The Board of Land Commissioners and the
district court both decided against the claim.
[The counsel then referred to and gave the dates
of the several documents, and said:] I have
set these dates carefully out, and called the
special attention of the court to them, because
they may become important in the discussion
of the cause.

This grant is illegal, and contrary to the laws
and customs of the Gk)vemment of Mexico, be-
cause,

1. The grantee was a minor at the time of its
date, and incapable, for that reason, of per-
forming the conditions annexed to it.

2. It is void, because it was made by a gov-
ernor who was a near relative of the grantee.

8. There was no petition; no examination
into the condition of the land or the character
of the applicant ; no map of the land ; no refer-
ence to any magistrate or officer; no report
upon the case, and therefore the governor had
no authority, jurisdiction or power to make the
concession, even if the grantee had been a
stranger to his blood.

4. There is no Mp^diente on file, and no note
or record in any book among the archives of the
department.

5. Besides all this, it is fraudulent and spu-
rious, a base and impudent forgery. For this
assertion I give the following reasons:

1. The factthat no trace of this grant is to
be found upon the record,'is of itself conclusive
evidence against lis genuineness.

2. The grantee never took possession of the
land nor claimed title under it, nor produced
the grant, until 1852.

8. The subscribing witnesses to the execution
of the grant (Jimeno) was not called, and we
must presume that he was not called because
it was known that he would pronounce the pa-
per to be fraudulent.

4. The testimony substituted in place of the
best evidence was that of witnesses, who, at the
very most, could prove nothing beyond their
own belief. One of them does not prove even
so much, but only that the signatures are liKe
those of Micheltorena and Jimeno.

5. But tliese witnesses, no matter what they
swear to, are unworthy of belief. They are pro-
fessional witnesses. No court in California where
Manuel Castro's achievements as a witness are
known, would pronounce a judgment upon his

878

testimony. Abregowas incontestably proved to
be guilty of perjury in the Limantour case, and
the fact was so announced by the court

Mr. Justice Wajae delivered ^ the opinion
of the court:

The appellant has come to this court asking
for a confirmation of his claim to eleven leagues
of land, called Potrero. The paper under
which he claims the land purports to be a grant
from (Governor Micheltorena. It recites that
the land is within the ex-mission of San Jose,
bounded on the north by the locality called the
Warm Springs: on the south by Palos; on the
west by the peak of the hill of the raneho$
Tulgencio Higuera and Chrysostom Ghilenda;
and on the east by the adjoining mountains.
It also recites that the governor had taken all
the necessary steps and precautionary proofs
which were required by the Mexican laws and
regulations for granting lands, and that he had
granted the land upon the following conditions
to the appellant:

1. That he should inclose it without preju-
dice to the crossways, roads and uses; that he
shall have the exclusive enjoyment of it, and
apply it to such use and culture as may best
suit his views.

2. That he should apply to the proper judge
for judicial possession of the same, by whom
the boundaries shall be marked out, and along
which landmarks should be placed to designate
its limits, and that fruit and forest trees shall
be planted on the land.

8. That the land given should contain eleven
leagues for large cattle, as is desii^nated by a
may said to be attached to the e^pediente. The
land is to be surveyed according to the Ordi-
nance; and should there be an overplus, it was
to inure to the benefit of the nation.

The title is to be recorded in the proper book,
and then to be delivered to the petitioner for
the land, for his security. This paper bears
date the 12th June, 1848, and has the name of
Micheltorena to it, which is denied to be his
signature.

The first inquiry, then, concerning it, should
be into its jB;enuineness. Was it executed by
Governor Imcheltorena? Has the party claim-
ing proved it?

The testimony introduced in support of the

Senuineness of the paper is to be found in the
epositions of Zamon De Zaldo. Jose Abrego,
Manuel Castro and Joseph L. Folsom. 2ialdo
declares himself to be chief clerk and interpreter
to arrange and classify the Spanish and Mex-
ican archives in the custody of the Surveyor-
General of California. He was not interro-
gated as to the signature of the paper, and says
nothing about its having been executed by
Micheltorena. He was asked what he knew of
the book of land titles of the Mexican Govern-
ment for the year 1848. He answers that he
knew that a book for the year 1848 was not in
the office, though he did not know of his own
personal knowledge that such a book ever ex-
isted, and that all that he did know about it
had been learned from a correspondence in the
office, that such a book belonging to the ar-
chives had been in the possession of John L.
Folsom, United States Quartermaster at the
time, and that he had learned, in the same way,
that it was destroyed with Folsom's papers by'

68 U. S,

1859.

FVBNTBB V. UkITED StaTRS.

443-461

the Arc in San Francisco of 1851 . Folsom states
thnt a book of records, containing grants of
land in Upper California, had been put into his
possession in the spring of 1851, to be used as
evidence in the suit of Leese and VdUejo v.
Clark, then pending in the Superior Court of
the City of San Francisco. It was in the Span-
ish language, and came from the archives of
the Mexican Government of California, then in
the possession of the commanding general at
Benicia, and was delivered to him as an officer
of the army, for safe keeping. He adds: after
the book was used as evidence, it was returned
to me. and was deposited in my otflce in the
City of San Francisco; and whilst there, the
great fire of the 8d and 4th May, 1851, oc
curred, by which my office and its contents, in-
cluding the said book, were destroyed. And
he then concludes his deposition, saying: "I
am not positive as to the date of the grants con-
tained in the said book, but from my best rec-
ollection, my impression is that they were for
the years 1843 and 1844." The purpose for
which Zaldo and Folsom were made witnesses
for the claimant was to connect the book which
Zaldo said was^iot among the archives with the
book which Folsom said had been burned, that
it might be inferred, from the date of the paper
upon which Fuentes rests his claim, that it had
been recorded in that book. It is stated in the
petition that the CTant was issued and delivered
in due form of law on the 12th June, 1848;
that it was recorded at the time it was issued;
that it was not found in the archives; and that
he believes that the copy of the grant was
burned, and on that account could not be pro-
duced. It is further stated, that the grant had
been approved by the Territorial Legislature,
and was in all respects formally completed
according to law, but that the records of the
Legislature for the year 1848 were in like man-
ner destroyed by fire at the same time with the
record of the grant, and that the claimant could
not produce any evidence of the approval of
the grant by the Legislature. In this recital
from the petition we End a very exact anticipa-
tion of what the evidence ought to be, to prove
that such a grant had been issued, and that it
had been duly recorded, but none such was in-
troduced. ^Ido believes, from a correspond-
ence in the office, that a book belonging to it
had been burned while it had been in the safe
keeping of Folsom. Folsom says a book from
the archives was burned, but that he cannot be
positive as to the date of the grant in it, but
that from his best recollection, his impression
was, the grants in it were for the years 1843
and 1844; and Zaldo declares that he had no
personal knowledge that such a book ever ex-
isted, but adds, that there is wantine in the office
a book for the year 1848 This falls far short of
the evidence which was necessary to connect
the alleged grant with the archives of the office.
There is no other evidence in the record to sup-
ply such deficiency. And it is admitted now
that the paper was never sent to the Depart-
mental Assambly.

In truth, between the burned book and the
Fuentes paper, the testimony in the record makes
no connection whatever. The mere declaration
that it was dated in 1843 cannot do so. Nor
can any implication of the kind be raised from
tne testimony of Abrego and Castro. Neither

See dd How.

of these witnesses were interrogated concerning
the burned book, nor was any attempt made to
prove that any of the records of the Depart-
mental Assembly, especially its approval of this
grant, had been burned at the same time. What
has been said of the insufficiency of the evidence
to prove the record of the paper, applies with
equal force to the certificate which is alleged to
have been given by Jimeno, that the paper set
out in the petition as a grant had been recorded
in the proper book, which is used in the archives
of the secretary's office.

The case, then, stands altogether disconnected
from the archives, and exclusively upon the
paper in the possession of Fuentes. It has no
connection wtth the preliminary steps required
by the Act of Mexico of the 18th August, 1824,
or with the Regulations of November 28, 1828.
It is deficient in every particular — unlike every
other case which has been brought to this court
from California. There was no petition for the
land; no examination into its condition, whether
grantable or otherwise; none into the character
and national status of the applicant to receive
a grant of land ; no order for a survey of it ; no
reference of any petition for it to any magis-
trate or other officer, for a report upon the case ;
no transmission of the grant — supposing it to
be such — to the Departmental Assembly or Ter-
ritorial Legislature, for its acquiescence; nor
was any espediente on file in relation to it, ac-
cording to the usage in such cases.
» All of the foregoing were customary require-
ments for granting lands. Where they had not
been complied witn, the title was not deemed
to be con^plete for registration in the archives,
nor in a condition to be sent to the Depart-
mental Assembly, for its action upon the grant.
The governor could not dispense with them
with official propriety: nor shall it be presumed
that he has done so, because there may bo, in a
paper said to be a grant, a declaration thf^ they
had been observed, particularly in a case where
the archives do not show any record of such a
grant.

The Act of 1824 and the Regulations of 1828
are limitations upon the power of the governor
to make grants of land. They are, and were
also considered to be, directions to petitioners
for land, before they could gjet titles. Where the
petition and the other requirements following
it, have not been registered in the proper office
with the grant itself, a presumption arises
against its genuineness, making it a proper sub-
ject of inquiry before that fact can be admit-
ted. It is not to be taken as a matter of course ;
nor should slight testimony be allowed to re-
move the presumption. Both the kind and
quantum of evidence must be regarded. We
proceed to state what they are in the record.

None can be found to establish with a rea-
sonable probability the genuineness of the pa-
per upon which the claimant relies. The only
testimony bearing upon the genuineness of the
paper is that of Abrego and Castro. Both
speak of the signature of Michel torena. and no
further. Abrego says that he knew the gov-
ernor; that he had frequently seen him write,
and that he had examined the signature to the
document presented to him, and that he knows
it to be the signature of Governor Michel torena.

Castro is more particular, but not so positive;
and he gives a narrative of the origin of the

879

448-461

SuPBEiCB Court ov t^b TJinTED States.

Dec. Tessc,

paper, which is certainly peculiar, and from
which a reasonable suspicion may be indulged
against his own disinterestedness. He says :
"An instrument in writing is now shown to me,
purporting to be a grant to Jose Maria Fuentes
dated June 12, 1848, and it is^attached to the
deposition of Jose Abrego, heretofore taken in
this case, and marked H. J . T., No. 1. I know
the paper; it is in my handwriting. I was at
the time secretary in the prefect's office in
Monterey, and being on terms of friendship
with Secretanr Jimeno and Mr. Arce, a clerk
in his office, 1 frequently assisted them in their
official duties at their reouest, and in that man-
ner I wrote the body of this grant. It was
written in June, 1813, at the time of its date.
I know the signature of Micheltorena; and the
signature purporting to be his, appears like his;
and the siniature of Jimeno on said paper also
appears like his." The words of the witness
have been ^ven.

The signature of Jimeno, of which Castro
speaks, purports to be a certificate from Jimeno
that the ^nt had been recorded, the da^ after
its date, m the proper book of the archives of
the Secretary's Department. It is upon the
same paper with the title, and purports to have
been put upon it by the order of the governor,
" that the title might be delivered to the party
interested, for his security and ulterior ends.

Abrego, in a second deposition, says he knew
Fuentes and his family, and that he was not of
age, but was a minor, on the 7th July, 1846 —
more than three years after the date of the
grant. ^

Such is all the testimony in this record to
prove the genuineness of the signature of Mi-
cheltorena, unless it be the notarial certificate,
given under the seal of the National College in
the City of Mexico; which, as it is presented in
this case, is not evidence, and of no account at
all. *

We will now show that the testimony of Ab-
re^ to the signature of Micheltorena is insuf-
ficient to establish that fact, and that Castro's
deposition gives to it no aid. In truth, the
whole case has no other evidence in support of
the genuineness of the signature of the gover-
nor than what Abrego has said. In showing
this, we shall have no occasion to impeach his
character as a man, or his truthfulness as a wit-
ness, as there is nothing in this record, what-
ever there may be in others, to justify such an
attack. The case must be decided upon what
its own record contains, and upon nothing else.

Abrego's deposition has not that foundation
which the rules of evidence require a witness to
have, and enable him to prove the genuineness
of an official signature to a public document,
or a signature to a private writing. The doc-
ument m this instance purports to be genuine;
but whether so or not, it discloses the fact that
there is upon it an official witness of its execu-
tion and record, who should have been called
to prove it. if he was living, and if absent be-
yond the jurisdiction of the court, whose sig-
nature should have been proved by a witness
who was familiar with his signature and hand-
writing, before secondary evidence could be re-
ceived of his own signature, or that of the of-
ficial who is said to have executed the paper.

It was the duty of Jimeno to record all grants
which were made by the governor, and to give

880

attestations of that fact, and which it is said
Jimeno did give to the paper in this instance.
Why was not Jimeno called? It seems that he
was overlooked or not thought of.

The simplest and best proof of handwriting is
the testimony of one who saw the signature
actually written; and inferior evidence as to his
handwriting is not competent, until it has been
shown that this testimony to the execution of the
paper could not have been procured. And when
a document, either public or private, is without
a witness, the best evidence to disprove the sig-
nature, and to prove it forged, is the testimony
of the supposed writer, if he be not incompe
tent from interest, and can be produced. In
the latter case, the next best evidence is the in-
formation of persons who have seen him write,
or been in correspondence with him.

Such, however, is not this case, though it was
acted upon in the court below as if it was so.

Abrego here, then, is in the attitude of an
incompetent witness, who was called and per-
mitted to testify before the party by whom he
was introducea, and laid a foundation for the
next best evidence, when the papqr submitted to
him showed the fact that the better could have
been had, either primarily or secondarily in the
manner we have already indicated. Abrego
swears that he knew Micheltorena; that he had
frequently seen him write, that he had examined
the signature to the document presented to him,
and that he knew it to be the signature of Gov-
ernor Micheltorena. But had Secretary Jimeno
been called as a witness, as it was his official
duty to test the signature of the governor to
grants, his would have been the best testimony
to prove its genuineness in this instance, and
that the grant had been transferred to ^im of-
ficially, Tot delivery to the grantee.

Castro's deposition is in the same predica-
ment with that of Abrego, but with an aggra-
vation of its insufficiency to prove the signature
of Micheltorena, and oi his incompetency as a
witness. He was asked if he knew Michelto
rena, or was familiar with his handwriting or
with his signature, or if he had ever seen him
write. He only says: " I know the signature
of Micheltorena. and the signature to the paper
appears like his, and the signature of Jimeno
appears like his. He does not say how he had
become qualified, by comparison or otherwise, to
swear to the signature of Micheltorena; and not-
withstanding his declared friendship with Jim-
eno—so much so that he was frequently asked
to assist him in the duties of his office, and par-
ticularly asked to write out in his own hand
the paper in question— he has left it to be in-
ferred that he only knew enough of Jimeno's
handwriting to enable him to say that the sig-
nature to the grant which he wrote out in his
own hand appears like Jimeno's signature.

If such was the way of doing business in the
secretary's office, which we have no cause for
believing, it must have been an easy matter to
get it from such a paper as that now in ques-
tion, and not at all difficult to have been ac-
complished by one who had such familiar ac-
cess to the office as Castro represents himself to
have had, especially if all of the prerequisites
of a grant enjoined by the Act of 1824 and the
Regulations of 1828 were allowed to be disre-
garded. *

This narrative of De Castro, instead of bring-

68 U. 8.

1850.

FuiENTBs y. Ukited States.

448-461

ing the mind to any conclusion in favor of the
genuineness of the signatures of Micheltorena
and Jimeno, rather suggests caution in receiving
it, and that it ought to be corroborated by
other witnesses before that shall be done. It
seems to us, too, somewhat remarkable that
this witness, familiar as he was with the origin
and object of this paper prepared by himself,
should not have been questioned concerning
its delivery to Fuentes, then a minor, to whom
it was delivered for him. or what was done
with it at the time of its date, or in whose pos-
session it was from that time until it was pre-
sented to the Land Commissioners for confirma-
tion, in 1852.

There is entire absence of all proof of its
having been delivered to Fuentes himself, or
to anyone for him ; but it seems to have found
its way to the City of Mexico, as the record
shows, and reappears in California jrears after
its cession to the United States, and inore than
eight years after it is said to have been ex-
ecuted. The assertion in the paper itself, that
the governor had directed it to be delivered,
can ba no proof of that fact, until its genuine-
ness shall have been ascertained. Ii the mi-
nority, too, of Fuentes is considered, in connec-
tion with the conditions upon which this grant
is said to have been maae, it may well be in-
ferred that it was not delivered to the grantee,
as he was not then in a situation to carry out
the conditions of the grant, without the inter-
vention of a tutor or guardian, and nothing
was done to perform those conditions at any
time afterward.

We do not speak now of such non- perform-
ance as a cause sufficient for denying a right
claimed under a genuine grant; but only as
a fact in this case accounting for the non-
performance of the conditions of the ^rant,
and making it probable that Fuentes did not
receive this paper, until some time after its date,
from Micheltorena, and not until after the
cession of California to the, United States. A
delivery after the latter event, by a former
governor of California, would not give a
grantee a right to claim the land by any obliga-
tion imposed upon the United States by Uie
Treaty of Guadaloupe Hidalgo.

We have given to this case a very careful ex-
amination, and have concluded that no evi
dence can be found on its record to sustain the
genuineness of the paper under which the land
is claimed. That there is none to prove its
registry in the archives of the secretary's office,
at the time of its date or afterwards. That no
reliable proof has been ^ven to connect it with
the book of records, which had been committed
to the care of the witness, Folsom, and was
burned in his office. That it does not appear that
anyone of the precautionary requirements, be-
fore a grant of land could be made by a gov-
ernor of California, had been complied with in
this case. That there is no proof whatever
that such a paper as that in question had been
delivered to the claimant at any time before the
power of Mexico in California had ceased; and
it was admitted, in the argument of the case
here, that no such paper had been sent to the
Departmental Assembly for its acquiescence,
as a grant from the governor.
* It was, however, urged in the argument, that
such prerequisites for a grant of land should be

See 22 How.

assumed to have been observed, on account of
a recital in the paper or grant that they had
been. Several cases from the reports of this
court were cited, being supposed by counsel
to support the position. None of them do
so. We have not been able to find a case re-
ported from this court, either under the Loui-
siana or Florida cession, that does. U, 8. v.
PeraUa, in 19 How., 348, does not do so. The
decision there is, that when a claimant of land
in California produced documentary evidence
in his favor, copied from the archives in the
office of the Surveyor General, and other origi-
nal grants by Spanish officers, the presumption
is in favor of the power of those officers to
make the grants. There, the authenticity of
the documents was admitted, and the validity
of the petitioner's title was not denied, on the
ground of any want of authority of the officers
who made the grant. This court then said,
that the public acts of public officers, importing
to be exercised in an official capacity and by
public authority, shall not be presumed to be
usurped, but that a legitimate authority had
been previously given or subsequently ratified.

In the case of Minter v. Orommelin, 18 How.,
88, it was ruled that when a patent for land
has been issued by the officers of the United
States, the presumption is in favor of its valid-
ity, and passes the legal title, but that it might
be rebutted by proof that the officers had no
authority to issue it, on account of the land
not being subject to entry and grant. In De-
lassus V. U, 8., 9 Pet., 117, 133. the inquiry
was, whether the concession was legally made
by the proper authority; but the concession,
being in regular form, carried prima facte
evidence that it was within the power of the
officer to make it, and that no excess or de-
parture from instructious should be presumed,
and that he who alleges that an officer intrusted
with an important duty has violated it, must
show it. But there was no question in that
case about the genuineness of the concession.
That was admitted. The genuineness of the
grant in U. 8. v. Arredando, 9 Pet., 691, was
not questioned. Nor was the genuineness of
the patent in BagneHl v. Broderick, 18 Pet. ,437,
a subject of controversy. This court ruled in
that case, that a patent for land from the
United States was conclusive in an action at
law, and those who claim against it must do so
on the equity side of the court. It is not,
however, to be supposed that no title in Cali-
fornia can be v^lia, which has not all of the
preliminary requirements of the Act of the
Mexican Congress of 1824, and of the Regula-
tions of 1828. But if none of them are to be
found in the archives, and it cannot be estab-
lished by the proof that they were registered
there, this court will not presume that they
were preliminary to a grant, because the gov-
ernor recites in the grant that they had been
observed. In what we have said upon this
point, we are reaffirming this court's opinion
in U. 8. V. Cambiiston, 20 How., 59. And we
now take this occasion to repeat, that when it
shall appear that none of the preliminary steps
for granting land in California have been taken,
this court will not confirm such a claim. For
the reasons already given, we shall affirm the
4ecree of the district court in this case.

But we also concur with that court in its re-

299-315

SUPRBMB CODBT OF THB UnITBD StATBB.

Dec. Tebm,

jection of this claim, supposing it to be genu-
ine, upon the ground that there was no proof
of a survey or measurement of this land, or
any performance of its conditions, from which
it may be inferred that the grantee had aban-
doned his claim. It is said that these were
conditions subsequent, the non-performance of
which do not necessarily avoid the grant. This
is the case as to some of them; but even as to
such, when a grantee allows years to pass after
the date of his grant without any attempt to
perform them, and without any explanation for
not having done so. and then for the first time
claims the land, after it had passed by treaty
from the national jurisdiction which grantea
it to the United States, such a delay is unreason-
able, and amounts to evidence that the claim
to the land has been abandoned, and that a party
under such circumstances, seeking to resume
his ownership, is actuated by some considera-
tion or eipectation of advantage, unnconnected
with the conditions of the ^rant. which he had
not in view when he petitioned for the land,
and when it was granted. The language Just
used was suggested in FrSmorU v. U, 8., 17
How., 642. The occasion has arisen in this
case, when it becomes necessary to affirm it as
a rule, to guide us in all other cases hereafter
which may be circumstanced as this is.

The decree of the district court in this case is
affirmed.

Clted-68 n. 8. (22 How.), 445 ; 65 U. 8. (24 How.),
851; 60 U. 8. (i Black), 252 ; 68 U. 8. (1 Wall.), 867, 422.
745; 77 U. 8. (10 WaU.), 245.

THE UNITED STATES, Plff. in Er.,

JOHN J. WALKER;
THB UNITED STATES, Plff, in Er.,

ARTHUR F. HOPKINS;

AKD

THE UNITED STATES, Appt.,

RICHARD LEE PEARN.

(8ee 8. C, 22 How., 29»-815.)

Acts respecting pay of coUectorm of ports — repeal
by implication not favored — repugnancy must
^ clear — acts in pari materia construed to-
gether— construction of Act of March S, 1841
— additional compensation — am/mnts of sala-
ries.

The 10th section of the Act of May 7, 1822, is not
repealed by any subsequent Act.

By the Act of May 7, 1822, $3«000 was the maxi-
mum which could be allowed to the office held by
the defendant.

Under that Act, collectors of seven enumerated
ports migrht receive an annual compensation of
^,000, provided their respective offices prodl»ced
that amount from all sources of emolument re-
cognized and prescribed by the existinar laws, after
deductingr the necessary expenses Incident to the
offices.

On the same principles, and subject to the same
conditions, the collectors of the non'Onumeratejl
norts miffht receive an annual compensation of

8tt)S

Repeal by implication, upon the ground that the
subsequent provision upon the same subjeot Is
repugnant to the prior law, is not favored in any
case.

VHiere such repeal would operate to reopen ac-
oounts at the Treasury Department long* since set-
tled and closed, the supposed repugnancy ought to
be clear and controlling, before it can be held to
have that eifect.

Wood V. n. 8., 16 Pet., reaffirmed.

All of these additional compensation Acts are i/n
pari materia with the several Acts prescribing- the
sources of emolument, and the whole must be con-
strued together.

When they are so considered, there is no repug-
nancy. By the true construction of the Act of Marcb
8, 1S41, every collector is required to include In bis

?tuarter-yearly accoun^ all sums received by him
or rent and storage of goods, wares and merchan-
dise, stored in the public stores, for which rent is
paid bevond the rents paid by him as collector ;
and if, nrom such accounting, the iaggregate sums
received from that source exceed 12,000, he is di-
rected and required to pay the excess into the
Treasury, as part and parcel of the public money.

When the sums so received from that source In
any year do not in the aggregate exceed $2,000, be
may retain the whole to nis own use ; and in no
case is he obliged to pay into the Treasury anything-
but the excess beyond the $2,000.

Collectors of the enumerated ports may receive
$4,000. from the sources of emolument recognized
in the Act of the 7th of May. 1822, and they may
also receive $2,000 from rents and storage.

But there is nothing In the Act to show that the
prior Act is repealed, so far as it is applicable to the
collectors of the non-enumerated ports. No new-
maximum is fixed to their compensation, and there
is nothing In the new provision. Inconsistent with
the lOtb section of the prior Act.

Collectors of the non-enumerated ports may re-
ceive, as an annual compensation, $3,000 from the
sources of emolument recognized and prescribed
by the Act of the 7th of May, 1B22, provided
their respective offices yield that "amount from
those sources, after deducting the necessary ex-
penses incident to the office; and in addition there-
to, they are also entitled to whatever sum or sums
they may receive for rent and storage, provided
the amount does not exceed $2,000.

Argued Feb. 2S, and Mar. 19, 1860. Decided

Apr. 16, 1860.

ERRORS to the Circuit Court of the United
States for the Southern District of Ala-
bama.

The complaints In these cases were filed in
the court below, bv the plaintiffs in error, up-
on the official bond of Walker, as Collector of
^e Customs for the district, and Inspector of
the Revenue of the port of Mobile.

The trials below having resulted in verdicts
and judgments in favor oi the defendants, the
United States sued out these writs of error.

The cases were heard together in this court.

A further statement of the cases appear in
the opinion of the court.

Messrs. J. S. Black and J. M. Camp-
bell, for plaintiffs in error:

The only question is as to the true construc-
tion of the Act of 1841, and its effect upon the
Act of 1822.

1. The purpose of the Act of 1841 was plain-
ly not to increase, but to limit the compensa-
tion of collectors. All over $2,000 per annum
received from the sources specified in the com-
mencement of the 5th section, was to be part
and parcel of the public money, and paid over
as such, and no collector was to retain for him-
self, by the latter part of the section, under any
pretense, more than $6,000 per annum, inclua-
ing every possible item of charge or claim.
Congress might have aggregated into one, all
the sources from which collectors could derive

63 r. 8.

1859.

U. S. y. Walkbb. Samb y. Hopkutb. Samb y. Feabn.

299^15

compensatioD, and then limited the amount to
be enjoyed from the whole; but it has not done

80.

3. The true construction of the Act of 1841
being ascertained, its operation on the Act of
1822 appears at once.

By the 9th section of that Act (8 Stat, at L.,
694), the maximum compensation of collectors
at Boston, New York, Philadelphia, Baltimore,
Charleston, Savannah and New Orleans, is fixed
at $4,000 per annum, and by the 10th section,
of all other collectors at $8,000 per annum,
payable, as this court ruled in Hoyf$ case, out
of the fees and commissions allowed by the Act
of 1802.

10 How., 135.

The montion, therefore, in the Act of 1841,
of a maximum of $6,000 from all sources, is
explained by the fact, that while it limited a
maximum of $2,000 as regarded certain par-
ticulars, the Act of 1822, in regard to the
sources of emolument with which ft dealt, had
already prescribed a maximum of $4,000 for
the collectors of the seven ports enumerated in
it. But no construction can possibly stand,
wliich makes the denial of more than $6,000
per annum to the collectors of ports of the first
class, amount to an Increase of the compensa-
tion of those officers in other ports. The Act
of 1822 still operates in putting a limit to the
collector's compensation, as regards the items
which it contemplated, and fixes that limit at
$4,000 per annum for the collectors of the seven
ports mentioned in it, and to $3,000 per annum
for all other collectors, including the Collector
of Mobile; while the Act of 1841. limits all of
whatever class to a maximum of $2,000 per an-
num from the items specified by it.

Mr^ R« H. Smithy for defendants in error.

Mr. Justice Clifford delivered the opinion
of the court:

This case comes before the court upon a
writ of error to the Circuit Court of the United
States for the Southern District of Alabama.
It was an action of debt brought by the United
States upon the official bond of the defendant
as Collector of the Customs for the district and
Inspector ofthe Revenue for the port of Mobile.
He gave the bond, with sureties, on the 7th
day of September, 1850, conditioned that he
had truly and faithfully executed and dis-
charged, and that he would continue truly
and faithfully to execute and discharge, all the
duties of the office according to law. Neglect
and refusal on the part of the defendant to pay
to the plaintiffs certain sums of money received
by him as such collector before the commence-
ment of the suit, beyond what he was entitled
to retain as compensation for discharging the
duties of the office, constituted the breaches of
the condition of the bond, as assigned in the
declaration.

Those balances, as claimed by the plaintiffs,
amounted to the sum of $18,184.42; and the
charge was. as alleged in the declaration, that
the defendant had wholly failed and refused to
pay the same. As appears by the transcript,
the defendant pleaded the general issue, and t6at
he had full^ performed the conditions of the
writing obligatory set forth in the declaration.

To maintain the issue on their part, the
plaintiffs introduced a certified copy of the bond

See 22 How.

given by the defendant, and two duly certified
copies of transcripts from the Treasury De-
partment, showing that the official accounts of
the defendant had been examined and adjusted
by the accounting officers of that Department.
According to those transcripts, the respective
balances claimed by the plaintiffs, as the ac-
counts are there stated, had not been paid by
the defendant and remained due and payable
at the time the suit was commenced.

No evidence was adduced by the defendant.
He was charged in the account against him, as
collector of the customs, with the sums col-
lected from duties on merchandise, tonnage
duties, hospital money, and for all sums re-
ceived for rent and storage of goods, wares
and merchandise, stored in the public store-
houses, for which a rent was paid beyond the
rents paid by the collector. On the other side,
he was credited, in the account of official emol-
uments with the sum of $3,000 as the maxi-
mum rate of the annual salary or compensation
allowed to the collector of tha]t port. Further
details of those accounts are omitted, for the
reason that the charge for rent and storage in
the account of customs, and the credit for sal-
ary in the account of official emoluments, are
the only two items which come in review at
the present time.

Reference to the 9th section of the Act of the
7th of May, 1822 (8 Stat, at L., 695), will show
that Mobile is not one of the seven ports enu-
merated in that provision, and consequently that
the maximum rate of annual compensation or
salary allowed to the office under that law was
$3,060, as limited by the 10th section, which
includes all the ports not enumerated in the
previous provision. All of the accounts of the
defendant were adjusted at the Treasury De-
partment upon the principle that the Act of
the 7th of May, 1822 (8 Stat, at L., 695), was
still in force, and that the maximum rate of
compensation belonging to the collector was
$3,000, as therein prescribed. It was insisted
by the defendant that the provision in question
had been repealed by subsequent acts upon the
same subject, and that the maximum compensa-
tion allowed by law to the office was $6,000.

Assuming that the theory of the defendant
was correct, then his accounts had been Im-
properly adjusted, and there was nothing due
to the plaintiffs. On the other hand, if the
charge for rent and storage in his customs ac-
count was properly made, and the maximum
rate of compensation belonging to the office
was only $3,000, then he whs justly indebted
to the plaintiffs for the whole amount of the
respective bqfances as stated in the transcripts.

After argument, the court instructed the

Jury, among other things, that "the Act of 3d
farch, 1841 (5 Stat, at L.. 432), was the last
and controlling law as to tJie amount of com-
pensation which collectors are allowed annual-
Iv to retain; and that, under that enactment,
the collector of this port was entitled to a com-
pensation of $6,000 per annum, provided the
same was yielded from the office from commis-
sions for duties and fees for storage, and fees
and emoluments, and any other commissions
and salaries now allowed and limited by law,
or so much from those sources, not exceeding
$6,000, as the office yielded."
That instruction dbrmed the right of the de-

299-315

SUPBRME COUBT OF THE UnITBD StJITKS.

Dec. Tebm,

fendant, under the Act of the 8d of March,
184t (5 Stat, at L., 482), to a compensation of
$6,000 per annum, or so much thereof, not ex-
ceeding thai sum, as the office yielded from
commissions of every description, fees and
emoluments, including rents and storage, and
salaries, as allowed and limited by law. Be-
yond question, it assumed that the 10th sec-
tion of the Act of the 7th of May, 1822 (8 Stat,
at L., 695). was repealed. Prayers for instruc-
tion were then presented by the district attorney,
who was counsel for the plaintiffs. He re-
quested the court to instruct the jury to the
effect that the provisions of the Act of the 7th
of May, 1822 (3 Stat, at L., 695). respecting the
maximum compensation allowed to collectors
of the customs, were not repealed by the Act
of the 8d of March. 1841 (5 Stat, at L., 432), or
by any other Act, but that the same were in
full force; 2. That the onlv effect the Act of
the 8d of March. 1841 (5 Stat, at L., 482). had
upon the former Act, in so far as the same ap-
plied to a case like the present, was to create a
new and additional source of emolument to
such collectors, allowing them to retain not ex-
ceeding $2,000 for rent and storage of grxxls,
wares and merchandise, stored in the public
stores, and for which a rent was paid beyond
the rents paid by such collectors. Each of these
prayers was separately presented, and separate-
ly refused by the court.

Another prayer for instruction was then pre-
sented by the district attorney. It affirmed, in
effect, that it was the duty of the defendant,
as collector, whenever his emoluments in any
one year exceeded $8,000, after deducting the
necessary expenses incident to the office, to pay
the excess into the Treasury, and that the
plaintiffs were entitled to recover for all such
balances, thus ascertained, as were shown to
be due from the evidence. Apply the first and
third requested instructions to the facts of the
case, and it will be seen that they affirmed the
principles adopted by the accounting officers
of the Treasury, in restating the accounts of
the defendant; and if correct, then the whole
amount as the respective balances, as stated in
the transcript, was due to the plaintiffs.

Taken together, they assume that the 10th
section of the Act of the 7th of May, 1822 (3
Stat, at L., 695), is in full force, and that the
defendant had no right, under the Act of the
3d of March, 1841 (5 Stat, at L., 432), to retain
any portion of the amount received for rent
and storage. Those prayers for instructions
bavins been refused, the district attorney then
prayed the court to instruct the jury as follows:

*'That under those Acts, it was the duty of
the defendant, as collector of \he customs,
whenever his emoluments exceeded $3,000 in
any one year, after deducting the necessary
expenses incident to his office, to pay the ex-
cess, if any, into the Treasury, and the plaint-
iffs are entitled to recover the amount of any
such surplus or surpluses, if any, as may he
shown by the evidence: but, in ascertaining
the amount of the defendant's emoluments as
such collector, the jury must exclude all
moneys derived by him' from fines, penalties
and forfeitures, and also all moneys derived by
him from rent and storage of goods, wares and
merchandise, which may have been stored in
the public storehouses, a$d for which a rent

384

was paid beyond the rents paid by him as col-
lector, unless the proceeds of such rents and
storage exceed $2,000; in which event, the ex-
cess over and above that sum must be taken
into account by them, in computing the value
of the annual emoluments."

That prayer was also refused by the court.
To understand its precise effect, it is necessary
that it should be read in connection with the
first and second prayers, which had previously
been presented and refused. When considered
together, those three prayers disclose the sec-
ond theory of the plaintiffs, as assumed at the
trial.

Like the one assumed in the third prayer, it
affirmed that the 10th section of the Act of the
7th of Mav, 1822 (3 Stat, at L., 695). was un-
repealed, out conceded that the defendant had
a right to retain to his own use the moneys re-
ceived for rent and storage, to an amount not
exceeding $2,000. Under the instruction of the
court the jury returned their verdict for the de-
fendant; and the plaintiffs excepted to the
charge, and to the several refusals of the court
to give the requested instructions. Three ques-
tions are presented in the case for decision,
which will be briefly and separately considered :

1. Whether the 10th section of the Act of
the 7th of May, 1822 (3 Stat, at L., 695), is re-
pealed by any subsequent Act ; and if not, then,

2. What is the true construction of the Act
of the 3d of March, 1841, so far as the same
applies to the present case.

8. Whether, by the true construction of the
two Acts, the defendant had a right to retain
to his own use the moneys received from rent
and storage, to an amount not exceeding $2,000.

1. It is insisted by the defendant that the
maximum prescribed by the 10th section of the
Act of the 7th of May, 1822 (3 Stat, at L., 695),
is repealed, and that, under the law regulating
his compensation, the legal capacity of the Of-
fice he held was $6,000, subject to the condi-
tion that $2,000 only could be received from
rent and storage. Six thousand dollars, he
maintains, is the maximum under the law of
the 3d of March, 1841 (5 Stat, at L., 482). ap-
plicable to every collector, and that the com-
pensation of each, within that limit, and sub-
ject to the before named condition, is regulated
solely by the amount of labor performed.

To show that the 10th section of the Act of
the 7th of May, 1822 (8 Stat, at L. , 695), is re-
pealed, his counsel at the argument, referred to
various Acts of Congress, passed subsequently
to the Tariff Act of the 14th of July, 1832 (4
Stat. atL., 588), entitleil " An Act to alter and
amend the several Acts imposing duties on im-
ports."

They areas follows: 1883, 4 Stat.. 629; 1834.
4 Stat., 698; 1836, 4 Stat., 771; 1836, 5 Stat,
113; 1837, 5 Stat., 175; 1838, 5 Slat.. 264; 1840,
6 Stat., 815, private Act; 1841, 5 Stat., 481.
sec. 2.

By the first of those Acts, usually called ad-
ditional compensation Acts, the Secretary of
the Treasury was authorized, among other
things, to pay to the collectors, out of any
money in the Treasury not otherwise appro-
priated, such sums as would give those officers
respectively the same compensation In that
year, according to the importations of the
year, as they would have been enlilled to re-

m u. 8.

1859.

U. 8. y. Walkkr. Sams y. Hopkins. Samb y. Fbarn.

29»^]5

ceiYe if the Tarifif Act of the precedhig year
had not eone into effect. That proYision, with
certain additions and modifications, which will
presently be noticed, was annually re-enacted
to the year 1840, when it was made permanent.
For the most part, it was inserted in some one
of the annaal appropriation Acts, and was de-
signed to accomplish the precise object which
its language describes, and nothing more.

Compensation to collectors, from the or^n-
ization of the government to the present time,
has been derived chiefly from certain enu-
merated fees, commissions and allowances,
to which has been added a prescribed sum,
called salary, and which is much less than the
compensation to which the officer is entitled.
Provision for such fees, commissions and al-
lowances, was first made by the Act of the 31st
of July, 1789. which also allowed to collectors
certain proportions of fines, penalties, and for-
feitures. 1 btat., at L., 64.

More permanent provision, however, was
made by the Act of the 18th of February. 1793,
by the Act to regulate the collection of duties
on imports and tonnage, passed on the 2d of
March, 1799, and by the Compensation Act
passed on the same day. 1 Stat., 816, 627,
786.

By these several Acts, certain enumerated
fees and commissions are made payable to col-
lectors. Thev are also entitled to certain pro-
portions of fines, penalties and forfeitures.
Accurate accounts were required to be kept
by them of all fees and efficient emoluments by
them received and of all expenses for rent,
fuel, stationery, and clerk hire, which they
were required annually to transmit to the Comp-
troller of the Treasury ; but they were allowed
to retain to their own use the wliole amount of
emolument derived from that source, without
any limitation. Maximum rate of compensa-
tion was first prescribed by the Act of the 80th
of April. 1802 (2 Stat, at L, 172). That limit
was $5,000, and it was applicable to all col-
lectors.

By that Act, it was provided, that whenever
the annual emoluments of any collector, after
deducting the expenses incident to the office,
amounted to more than $5,000, the surplus
should be accounted for and paid into the
Treasury. 2 Stat, at L., 172.

Further regulations, as to fees, commissions,
other emoluments, and salaries, were made by
the Act of the 7th of May, 1822, as therein
prescribed.

One of those regulations was, that whenever
the emoluments of any collector, for seven
enumerated ports, after deducting the neces-
sary expenses incident to the office, should ex-
ceed $4,000, the excess should be paid into the
Treasury for the use of the United States. By
the 10th section, it was also provided that,
whenever the emoluments of any other collector
of the customs should exceed $3,000, after de-
ducting such expenses, the excess should be
paid into the Treasury for the same purpose.
They were also required to account to the
treasury for all emoluments and for all ex-
penses incident to their offices, and those ac-
counts were to be rendered upon oath. Neither
of the two last mentioned Acts extended to
fines, penalties and forfeitures. 3 Stat., 695.
Under that Act, $3,000 was the maximum

See 22 How.

U. S. Book 16.

which could be allowed to the office held by
the defendant ; and it is conceded by his coun-
sel that it remained in full force to the time
when the additional Compensation Acts before
mentioned were passed. Large additions had
been made to the free list by the Tariff Act of
the 14th of July, 1832, and the rate of duties on
imports so far reduced that the sources of emol-
ument to collectors would not yield sufficient
to give them an adequate compensation. To
supply that deficiency, those additional Com-
pensation Acts were passed. Much reliance is
placed by the counsel of the defendant upon
the last proviso, which appears in nearly the ^
same form in several of the Acts. Take, for
example, the one in the Act of the 7th of Julv,
1888, which is the Act that was subsequently
made permanent. It provides that no collector
shall receive more than $4,000. That sum is
the maximum rate of compensation allowed to
collectors of the enumerated ports in the Act
of the 7th of May, 1822; and masmuch as the
limit of $3,000, therein prescribed as applicable
to the non-enumerated ports, was not repro-
duced in the new provision, it is insisted it was
repealed, so that every collector, whether of the
enumerated or non-enumerated ports, may now
claim to receive an annual compensation of
$6,000 from the sources of emolument recos^-
nized by that Act, provided his office yields
that amount, after deducting the necessary ex-
penses incident to the office. To that propo-
ition we cannot assent. On the contrary, when
we look at the language of the new provision
in connection with that of the prior law, and
consider the mischief that existed, the remedy
provided, and tne true reason of the remedy,
we are necessarily led to a different conclusion.
Commercial ports, where the revenue is col-
lected, were divided by the prior law, so far as
respects the compensaton of collectors, into two
classes, enumerated and non-enumerated. Col-
lectors of the seven enumerated ports might re-
ceive an annual compensation of $4,000, pro-
vided their respective offices produced that
amount, after deducting the necessary expenses
incident to the offices, from all the sources of
emolument recognized and prescribed by the
existing laws.

On me same principles, and subject to the
same conditions, the collectors of the non-enu-
merated ports might receive an annual com-
pensation of $8,0(%. No one could receive more
than that sum, and his lawful claim might be
much less.

Ten years' experience under that law, prior
to the passa^ of the Tariff Act of the 14th of
July, 1832, had witnessed but few complaints
respecting the classification of the ports, or the
standard of compensation to collectors of cus-
toms, and had called for no important altera-
tion in the laws upon that subject. Through-
out that period, the rates of duties on imports
were high, and nearly every article of consump-
tion imported from other countries was taxed.
Change of policy in that behalf, as carried out
in the legislation of the succeeding year, af-
fected the emoluments of collectors, and re-
duced the amount of net income from the
sources of their emolument below the standard
of a reasonable compensation. To remedy that
mischief, and restore their compensation to
what it would have been if no change had taken

25 88&

299-815

SOPBBMB COUBT OV THE UNITED StATBS.

Drc. Tabv^

place, was the purpose for which those ad-
ditional compensation Acts were passed. They
had the effect to change the basis of computa-
tion, so as to augment the estimated net income
from the authorized sources of emolument to
what it would have been if the Tariff Act had
not passed; but they were not intended to make
any change, either in the sources from which
the emoluments were derived, or the maximum
rate of compensation. Mention was made of
the largest maximum prescribed in the prior
law, not with any view to repeal or modify the
other, which was applicable tothenon-enumer-
* ated ports, but to exclude the conclusion that
it was the intention of the provision to increase
the compensation of the collectors of the prin-
cipal ports beyond what it would have been if
the free list had not been augmented, and there
had been no diminution in the rates of duties
on imports.

Suppose there was nothing in the language
of the Act to qualify the provision, and noth-
ing in the history of the legislation upon the
subject to aid in the exposition; still we would
not think it so clearly inconsistent with the
prior law as to operate as a repeal. Repeal by
implication, upon the ground that the subse-
quent provision upon the same subicct is repug-
nant to the prior law, is not favored in any case ;
but where such repeal would operate to reopen
accounts at the Treasury Department long
since settled and closed, the supposed repug-
nancy ought to be clear and controlling before
it can be neld to have that effect. Such was
the doctrine substantially laid down by this
court in Wood v. UwUed, 8tate9, 16 Pet., 868;
and we have no hesitation in reaffirming it as
applicable to the present case. Aldridge et al.
V. Waiianu, 8 How., 28; U, S. v. Packages of
Dry Goods, 17 How., 93; 2 Dwarris on Stat.,
688

- All of these additional compensation Acts are
in pari materia with the several Acts prescrib-
ing the sources of emolument, and the whole
must be construed together. When they are
so considered, there is no such repugnancy as
is supposed by the defendant. Collectors, as
before, were still required to render an ac-
count; and the new provision expressly provides
that no officer ithall receive, under that law,
a greater annual salary or compensation than
was paid to him for the year the before-men-
tioneid Tariff Act was passed.

2. Having disposed of the proposition chiefly
relied on by the defendant, we come now to
consider the second question presented for de-
cision. That question cannot be understood
without referring to previous legislation upon
the subject, and the practice that had grown
up under it. Importers were allowed by the
Act of the 14th day of July, 1882, to place cer-
tain goods in the public stores, under bond, at
their own risk, without paying the duties.
Duties on goods so stored were required to be
paid one half in three months, and the other
half in six months; but while the goods re-
mained in the public stores, they were subject
to customary storage tod charges, and to the
payment of interest at the rate of six per cent.
Gkxxls thus deposited might be withdrawn at
any time, in whole or in part, bv paying the du-
ties on what were so recalled, together with

886

customary storage and charges and the interest.
Public stores were accordingly rented; and a»
the business increased, the storage received by
the collector from the importers exceeded the
amount paid to the owner of the stores, and
there was no law requiring collectors to account
for the excess, which was retained by the col-
lectors to their own use, and went to swell the
amount of their compensation.

To correct that supposed abuse, the Act of
the 8d of March, 1841, was passed. By that
Act, every collector was required to render a.
quarter-yearly account in addition to the account
previously directed by law. That additional
account, as prescribed in the Act. was to in*
elude all sums collected or received from fines,
penalties or forfeitures; or for seizure of goods,
wares and merchandise; or upon compromises
made upon seizures; or on account of suits in-
stituted for frauds against the revenue; or for
rent and storage of goods, wares and merchan-
dise, which were stored in the public stores, and
for which a rent was paid beyond the rents
paid by the collector. As originally framed,
the provision required the collector, in case the
suiYis received by him from all those sources ex-
ceeded $2,000, to pay the excess into the Treas-
unr as part and parcel of the public money.
After it was introduced, however, it was so*
amended and changed in its passage, that while
it still directs the account to be rendered, it re-
quires no part of the money derived from those
sources to be paid into the Treasury, except
what is received for rent and storage as afore-
eaid, and for *'fees and emoluments." Every
collector was required to account for fees and
emoluments by previous laws; and as the ac>
count to be rendered under this Act is expressly
declared to be one ** in addition to the account
now required," there is nothing left for that
part of the section directing the payment of
the excess into the Treasurv to operate upon,
except the sums received for rent and stor-
age.

By the true construction of the Act, there-
fore, every collector is required to include in
his quarter-vearly account, as directed in the
first part of the section, all sums received by
him for rent and storage of goods, wares and
merchandise, ston^ in the public stores for
which rent is paid bevond the rents paid by
him as collector; and ii, from such accounting,
the aggregate sums received from that sosrce
exceed two thousand dollars, he is directed and
required to pay the excess into the Treasury,
as part and parcel of the public money. When
the sums so received from that source in any
year do not in the aggregate exceed $2,000, he
may retain the whole to his own use; and in no
case is he obliged to pay into the Treasury any-
thinj^ but the excess beyond the $2,000.

It IS insisted, in one of the printed areumenta
filed in this case, that the Act now under con-
sideration has the effect to repeal the maximuoi
prescribed in the prior Act, and that every col-
lector, under this Act, is entitled to $6,000 as
an annual compensation, provided the office
yields that sum from all the sources of emolu-
ment, including rent and storage. Collectors
of the enumerated ports undoubtedly may
receive four $4,000 from the sources of emolu-
ment recognized in the Act of Uie 7th of May,

68 r. s.

1859.

TaoMPBON V. Rob.

422^495

1822, and tbey may also receive $2,000 from
rents and storage. 'Those two sums are equal
to the new maximum rate created by the
Act under consideration, which provides that
no collector, under any pretense whatever,
shall receive, hold, or retain, more than $6,000
per year, including all commissions for duties,
and all fees for storage, or fees, or emoluments,
or any other commissions or salaries which are
now allowed and directed by law. But it is
quite clear that there is nothing in the Act hav-
ing the slightest tendency to show that the prior
Act is repealed, so far as as it is applicable to
the collectors of the non-enumerated ports.
No new maximum is fixed to their compensa-
tion, and there is not a word in the new pro-
vision inconsistent with the 10th section of
the prior Act.

To suppose that the new' maximum applies
to the collectors of the non-enumerated ports,
would be to impute an absurdity to the Act,
for the reason, that under no possible state of
things can such collectors lawfully retain, hold,
or receive, more than $5,000 as their annual
salary or compensation, from all the sources of
emolument recognized and prescribed by the
two Acts. It may be $5,000 or it may be much
less than $3,000, according to the state of the
importations and the amount received from
rent and storage.

3. It only remains to apply the principles
already ascertained, in order to determine the
third question presenled for decision. Collectors
of the non-enumerated ports may receive, as an
annual compensation for their services, the
sum of $3,000 from the sources of emolument
recognized and prescribed by the Act of the
7th of May, 1822, provided their respective
offices yield that amount from those sources,
after deducting the necessary expenses incident
to the office, and not otherwise; and in ad-
dition thereto, they are also entitled to what-
ever sum or sums they may receive for rent
and storage, provided the amount does not
exceed $2,7)00; but the excess beyond that sum
they are expressly required to pay into the
Treasuxy, as part and parcel of the public
money.

Charges against the defendant for rent and
storai^ must be settled in accordance with these
principles. It follows, that the instruction
given by the presiding justice was erroneous;
and we also think that the first, second and
fourth prayers for instruction ought to have
been given to the jury.

Suits were also mstituted against the sureties
of the defendant. Judgment was entered in
the court below for the respective defendants
in those suits, and the causes were removed
into this court by writs of error, sued out by
the plaintiffs. Those causes were submitted at
the same time with the one just decided. They
depend upon the same principles, and must be
disposed of in the same w&^.

The judgment of the circuit court is, t/ierefore,
reverted in each of the three ccues, and the re-
specUve cases are remanded, with directions to
istfue new venires.

Clte<l--T8 U. S. (5 Wall.), 651 ; 90 U. S. (28 Wall.), 400 ;
101 U. S.,166; 1 Cliff., W&,561 ; 2 CUff., 280-882, 883;
8 Cliff., 464; 8 Dili., 64.

See 22 How.

EMMA B. C. THOMPSON and WILLIAM
G. W. WHITE, Plffs. in Eh-.,

RICHARD ROE, ex dem, Jane Carkoll,
MARIA C. PITZHUGH, ANNE C. CAR-
ROLL, SARAH NICHOLSON, REBECCA
CARROLL, HENRY MAY BRENT,
DANL. H. PITZHUGH and CATHARINE
D., HT8 Wipe, Devisees of Danl. Car-
roll, of Duddington, Deceased.

(Bee S. C, 22 How., 42»-435.)

Sale of lands for taxes in Washington OUy—
not necessary to exhaust personal property
first — laches— power to sell, is from Congress
— ordinances.

By the Charter of 1820, of Wasblnffton Citv, as
amended by the Act of 1834, it is not a condition
to the validity of the sale of unimproved lands for
taxes, that the personal estate of the owner should
have been previously exhausted by distress.

In this case, the owners of the tax title have bad
the possession, paid the taxes, built and made valu-
able improvements on the lot, in the presence of
the former owners, for near twenty years.

Under such circumstances, a court of justice
should be unwilling to exercise any Judicial inire-
nuity to forfeit even a tax title, where the former
owners have been so slow to question its validity.

The power to sell the lands for taxes, is to be
found in the Acts of Congrress, not in the ordinances
of the Corporation.

The latter can neither increase nor vary it, nor
impose any terms or conditions, which can effect
the validity of a sale made within the authority
conferred by the statute.

The purchaser of a tax title is not bound to in-
quire further than to know that the sale has been
made according to the provisions of the statute
which authorized it.

The instructions or directions griven by the Cor-
poration to its officers cannot have the effect of
conditions to affect the validity of the title.

Argued Mar, SO, 1860, Decided Apr, 16, 1860.

IN ERROR to the Circuit Court of the United
Steles for the District of Columbia.

This IS an action of ejectment brought in the
court below, in the name of the devisees of
Daniel Carroll, as lessors of the plaintiff, to re-
cover a certain lot in the City of Washington.

The jury found for the plaiotifl. Judgment
was rendered on their verdict for him, subject
to the defendant's exceptions to the instructions
of the court.

The point at issue here, is steted in the opin-
ion of the court.

Messrs. Geo. E. Badger and J. M. Car-
llslet for the plaintiff in error:

The principal question in the case, is whether,
upon the true construction of the Charter of
1830, amended by the Charter of 1824, it was a
condition to the validity of the sale of unim-
piroved land for taxes, that the personal estete
of the owner should have been exhausted by
distress.

1. The construction of the charter upon the
question above steted.

a. By the 10th section of the Charter of 1820
(8 Stet., 589), "real property, whether im-
proved or unimproved, might be sold for taxes."

Note.— Sa/e of lands for taxes; tiricl eompHanee
wUh the statuU, necessary. See note to Williams v.
Peyton, 17 U. 8. (4 Wheat.), 77.

887

42^^435

SXTPBSICS COUBT OF TH£ UniTBD StATBS.

Disc. Tbrm,

The only restriction was in the proviso (p.
690), " that no sale shall be made in pursuance
of this section, of any improved property
whereon there is personal property of sufficient
value to pay the said taxes."

By the 12th section (p. 590). power is given to
collect taxes by "distress and sale of the goods
and chattels of the person chargeable there-
with."

Both these sections contemplated that the
property should be assessed to the true owner.
The 10th section distinguished the term of notice
required between resident and non-resident
owners. The 12th section subjected to the
payment of taxes, the " goods and chattels of
the person chargeable therewith."

No person could be " chargeable " with the
taxes, except by their being assessed to him.
The Corporation charged by assessment.

These provisions were found to be practi-
cally inefficient for the collection of taxes. It
was absolutely necessary that the Corporation
should be relieved from the duty of ascertain-
ing the true owner, and assessing the land to
bim. Accordingly, the Act of Congress of
1824 (4 Stat., 75). supplementary and amenda-
tory to the Act of 1820, was passed.

By its 1st section, the provisions of the Act
of 1820, so far as " inconsistent with the pro-
visions of this Act," are repealed.

By its 2d section, it is provided that *' no
sale of real property for taxes hereafter made,
shall be impaired or made void by reason of
such property not being assessed or advertised
in the name or names of the lawful owner or
owners thereof."

The same section abolished the distinction
between residents and non-residents in respect
to the advertisement, and prescribed a uniform
term in all cases, irrespective of ownership.

The provisions of the Act of 1820, requiring
the Corporation to ascertain the person charge-
able with the taxes, was inconsistent with the
provision of the Act of 1824, which made it
unnecessary to assess the property of the ** law-
ful owner or owners thereof;" and therefore
the former were repealed.

The effect of the Act of 1824 was to author-
ize the Corporation to proceed in rem, the tax
being assessable directly and exclusively upon
the lands, and not to any person.

This is understood to be the construction
upon which this court proceeded in Uolroydw.
Pumphrey, 59 U. 8. (18 How.), 69, where this
court declared in effect, that under the charter
of 1824, it was immaterial to what person, or
whether to any existing person, the land was
assessed.

It would seem to be hardly defensible to as-
sert that, there being but one ^issessment, and
that being sufficient to pass the land irrespect-
ive of the true ownership, there is, neverthe-
less, to be included to the Corporation another
assessment, ascertaining " the person chargea-
ble with the taxes, so as to compel a resort to
the personalty, or otherwise to avoid the sale.

In our apprehension, the changes in the
amended Charter of 1824 are conclusive of the
matter, even if, by the true construction of the
Charter of 1820, it was imperative that recourse
should be first had to the goods and chattels of
the first owner.

But was such preliminary recourse required

388

by the Act of 1820 itself? It is submitted that
it was not. Kor, in the multitude of tax titles
which have been tried in the court below, was
the point ever suggested, until the present case
in 1857.

The whole argument in its support dep^ids
upon the assumption, that the language of the
12th section, declaring that ** the person or
persons appointed to collect," &c., '* shall have
authority to collect the same by distress aod
sale of the goods and chattels of the person
chargeable therewith," if mandatory upon the
corporation, requiring a distress in all instances.
This is assumed because of the well settled law.
that in certain cases the word "may" and
other eouivalent expressions, will be construed
" must,^' in order to give effect to the intention
of the Legislature; as in Mason v. Feanon, 9
How., 248.

But is this such a case?

In Mason v. Fearson, 9 How., 248, the char-
ter had provided for the sale of one lot, to pay
the taxes on all ; and this coun held that the
corporation was bound to exercise the power so
conferred: and that, the first two lots having
produced more than enough to pay thetaxefr«n
the whole, the subsequent sales were void.
This is not at all analogous to the present case,
which is that of the express grant of co-ordi-
nate remedies to be exercised optionaUy. The
sale of one lot for the taxes due. on all those
owned by the same person, instead of unnec-
essarily selling them all. each for its own taxes,
is manifestly for the benefit of the owner; but
is it manifestly for his benefit that the sum-
mary remedy of a distress warrant shall be ap-
plied to his household furniture, rather than
that a vacant lot lying in commons shall be
sold?

This precise matter has been adjudicated by
the Supreme Court of New Jersey, in the case
of Martin v. Carron, 2 Dutch., 230. There,
the clauses in the Charter of Newark were
identical with those in this Charter of 1820.
This same objection was taken. But the court
held that " the remedies are coordinate. It is
not necessary that the goods and chattels of
the owner or occupant of the lot be exhausted
before proceeding against the land."

[Points II and III of the counsel for the
plaintiff in error, related to the construction of
the ordinance of the Corporation; but as the
court held that these ordinances could not af-
fect the power to sell the land for taxes, they
are omitted as immaterial.]

MessTB. J. Marbury» W. Redm» Sam*l
Tyler and R. J, Brent* for the defendant
in error:

After citing and quoting from the sections of
the Acts of Congress, and the ordinances of the
corporation bearing upon the question at issue,
the counsel said : Was, then, the instruction so
given by the court below, and excepted to by
the defendants, right?

It was urged by the defendants, that it was
discretionary with the Corporation and their
officers to take and sell, either unimproved real
property, or the personal property of the own-
er, for the taxes; on the contrary, the plaintiff
urges, and now submits, that under the 10th and
1 2th sections of the Charter of 1820, there is no
discretion in the Corporation or collector; but

68 U.S.

1859.

Thompson v. Rob.

422^85

that it is maQdatory upon them, under the pro-
visions of that A.ct, first to take the personal
property of the owner possessed by him within
the corporation for the taxes claimed, before
resorting to his real estate.

The 10th and 12th sections of the Charter of
1820 relate to the same subject, and must be
taken together. The 10th section (which au-
thorizes the sale of real property) is not inde-
pendent, but must be construea in connection
with the 12th section, which provides for the
seizure and sale of the goods of the owner ; and
thus taken and construed, the two sections
mean, that if the owner of the real property has
personal property upon the premises, or any-
where else in his possession within the corpo-
rate limits, sufficient to pay the taxes claimed,
it shall be taken for them, and the real prop-
erty, whether improved or unimproved, saved
from sale therefor. The taxes to be collected
were those which should be "imposed bv virt
ue of the powera granted by the Act. The
taxes which the Act authorized to be imposed
were taxes on unimproved as well as improved
lots. And all the taxes so imposed on all de
scriptions of property, were, by the terms of
the Act, to be collected out of tne goods of the
persons chargeable with the tax. The person
ap[)ointed to collect any tax. by virtue of the
p)wers granted by this Act, shall have author-
ity to collect the same by distress and sale of
the goods and chattels of the person chargeable
therewith. " If he had goods upon the property
on which the tax was imposed, they were to be
taken there If he had no goods thereon, but
possessed them elsewhere within the corporate
limits, it was not meant that the real property
upon which the tax was imposed should be
sold, but that goods should be taken, wherever
they were found in his possession within the
jurisdiction of the corporation. It is the same
ajB to both descriptions of property, improved
and unimproved — taxes are Imposed equally up-
on both, '* by virtue of the same Act, "and are. as
to both, to be alike collected in the same way out
of the goods of the person chargeable with the
tax. The real property might be resorted to,
in the contingency of there being no personal
property; but not "until all the other means
of collection prescribed in the Act" had been
tried and failed. The 12th section may be
read as a further proviso to the previous 10th
section. And the 2d proviso of the 10th sec-
tion, as to improved property, may be consid-
ered to have been inserted merely from abun-
dance of caution as to thai particular descrip-
tion of property, and not as any restriction
upon the duty required in the 12th section,
viz. : to take goods for all taxes imposed by
virtue of the Act, wherever the party pos-
sessed them within the corporate limits. The
12th section of itself was sufficient to protect
both descriptions of property, improved as well
as unimproved. This construction produces
harmony and protects all the real property from
sale, where the owner possessed personal prop-
erty sufficient for the taxes claimed within the
corporation, which the collector could find;
and which, when taken, would be protected
from replevin by the last clause of the 12th sec
tion. It effects, it is submit^^d, the intent, and i
secures the rights of all parties, the Corporation
as well as the citizen; whereas, a contrary con

See 32 How.

struction, limiting the protection from sale
to the improved property only, would leave
the unimproved exposed, although the owner
might have abundant persona] property for
all the taxes claimed, and would violate the
intent.

Similar sections of the Act of Congress of the
14th of July, 1798, to lay and collect a direct
tax, were thus placed together and construed by
this court in the case of Parker v. RuU's Les-
see, 9 Cranch, 67.

The policy of the law has ever been, to make
the personal estate the primary fund for the
payment of debt, and especially of incum-
brances and charges for taxes. The authorities
are numerous; but in addition to Parker v.
Rule's Lessee, and the Act of Congress of 1798,
reference is merely made to BlacKwell on Tax
Titles, pp. 205. 209-218; Scales v. AvUs, 12 Ala.,
617; the Tax Acts of Maryland, 1785, ch. 88,
sec. 8, 1797, ch. 90, sec. 1, and Mapor of Bal-
timore V. Chase, 2 Gill & J., 376; all going to
establish that personal property must be re-
sorted to before the real estate. In the case at
bar, the lot was unimproved, and the owner at
the time of the sale, and at all times, possessed
abundant personal property. The fact that he
had such, was known to the Corporation and its
officers; quantity, value and description, and
the particular locality where to be found, being
all entered upon their own books. The fact
that he possessed such, and that the collector
could have taken it, is found by the jury.

" Taking the whole statute together," there-
fore, and " looking to the policy required," the
duty to take such personal property and ab-
stain from sale of the unimproved real proper-
ty, was imperative and mandatory upon the
Corporation and collector under the provision^
of this Charter of 1820.

Mason v. Fearson, 9 How., 248, is a direct
authority in support of the view that it wa^
mandatory. The duty, if not percisely the same,
was of the same character in both cases, and
the words are equivalent.

Upon these sections 10 and 12, then, of the
Charter of 1820, alone, and independent of the
corporation Ordinance of July 1824. we submit
that it was imperative first to take the personal
property possessed by Mr. Carroll at the time
of the sale ; and that there was no discretion in
Corporation or collector first to resort to the
unimproved real estate.

But if there was any discretion under the
Charter of 1820, the Ordinance of July 8, 1824,
taken in connection with those sections, places
the matter beyond all doubt as to tJie duty of
the collector. By that ordinance the Corpora-
tion, if there was any discretion, made their
election and exercised it.

[Counsel further discussed the effect of this
Ordinance of July 3d, and the claim of the de-
fendants, that Carroll gave consent to the cred-
itors to resort to his real estate rather than his
personal.]

There can be no presumption to support a
tax title, or in favor of a collector's proceed-
ings. There is no estoppel, legal or equitable,
in its favor against the true owner. All the
substantial and essential requisites, as fixed by
law, must be proved.

Especially is this so where the transaction
is recebt, and the possession of the purchaser

389

4d2-435

BUPRBMB COUBT OF THH UnITSD StATBB.

Dec. TsRif ,

under the tax deed htts scarcely exceeded, as
in the case at bar, 12 or 18 years.

Early y. Doe, 16 How., 615; WiOianu v. Pey-
ton, 4 Wheat.. r7; Thatcher v, PoweU, 6 Wheat.,
\\%\ Porter v. WMtney, 1 Me., 806.

Some remark was made below on the expres-
sion in the Charter of 1820. sec. 10, in relation to
the tax deed. The proper explanation of this is
given in Z^on v. Hunt, 11 Ala.. 316,

The general principle is, that titles derived
under tax sales, depend on a strict execution of
a naked power, uncoupled with an interest.

HMeUy. Welden, H. & D. Sup., 189; WiU-
tame v. P^tan, 4 Wheat., 77; Early v. Doe,
16 How., 618.

The Act of 1820. ch. 104. sec. 10 (8 Stat, at
L., p. 589), gives the Corporation of Washing-
ton no power to sell real estate, until after two
vcars' taxes are due and in arrear ; but no such
limitation is found in regard to the liability of
personal property for taxes, which may be dis-
trained on and sold the moment they are as-
sessed, and upon ten days' notice, according to
the 12th section of this Act

The 7th section of the Act of 1820 author-
izes the Corporation " to lay and collect taxes
upon the real and personal property within the
city."

It is therefore clear, that Congress looked to
the personal property of the debtor, as the pri-
maiy fund for the immediate and available
revenues of the city, and to the realty as only
secondarily or ultimately chargeable.

The power to collect taxes by distress on the
goods, &c., is compulsory, and not optional, on
the part of the city.

Maeon v. Feareon, 9 How., 248; Parker v.
Rule, 9 Cranch. 67.

* The only difficulty is occasioned by the 8d
proviso of the 10th section of the Act of 1820,
which forbids a sale of improved property
whereon there is personal property sumcient to
pay the taxes.

An argument is based on this proviso, to the
effect that recourse need not be had to personal
property primarily, except where it is found on
improved real estate; but we consider this pro-
viso as merely designed to subject primarily all
personal property on the real estate, irrespective
of its ownership.

The Corporation of Washington had the right
of pursuing at its election, cither the rem^y
by distress, or by sale of unimproved real es-
tate, and this is held on the authority of the ad-
verse case cited on the other side.

Martin v. C<trron, 2 Dutch., 228.

The Ordinance of July 8, 1824 (Rothwell's
Laws, p. 169), is a conclusive election by the
city, to require the collector to exhaust the per-
sonal effects of debtors, before selling the real
estate.

Mr. JueUce Orier delivered the opinion of
the court:

The lessors of the plaintiffs below claim to
recover a lot of ground in the City of Wash-
ington, the title to which was admitted to have
been in their ancestor in 1885. In that year it
was sold for taxes by the corporate authorities.
The plaintiffs in error claim through meene
conveyances of the tax title.

The lot in question was assessed as ^racant
and unimproved; but tLe owner, Mr. Carroll,

890

resided in Washington City. He owned a large
number of unimproved lots, the taxes on which
amounted to $5,690. He had personal property
in and about his house, estimated at between
five and six thousand dollars.

On the trial, but a single defect was alleged
against the tax title, which raised the question.
" Whether, upon the true construction of the
Charter of 1820, as amended by the Charter of
1824, it was a condition to the validity of the
sale of unimproved lands for taxes, that tne
personal estate of the owner should have been
previously exhausted by distress."

The court instructed the Jury: "That if
Carroll resided within the limits of the Corpo-
ration of Washington, and had in his poeeesion
personal property sufficient to pay all taxes due
by him, which might have been seized and sub-
jected to distress and sale, it was the duly of
the corporation, through their collector, to re-
sort first to such personal property ; which not
being done, the sale of the lot in question was
illegal and void."

The correctness of this instruction is the only
question presented by the record for our con-
sideration.

The authority granted to the city and the
mode of its exercise is to be found m the 10th
section of the Act '* to incorporate the City of
Washington." passed on the 15th of May. 1820
(2 Stat, at L., 588). It provides "that real
property, whether improved or unimproved,
on which two or more yeais' taxes shall have
remained unpaid, may be sold at public sale,
to satisfy the Corporation therefor;" with this
proviso, that no sale "shall be made in pur-
suance of this section of any improved property,
whereon there is personal property of sufficient
value to pay the taxes," «&c.

It is the obvious intent of this law. that the
thing or property shall be held liable for the
tax assessed upon it, and that the tax is a lien
in rem, which may be sold to satisfy it. It
seems to assume, also, that the property should
be assessed to some person as owner, for it pro-
vides for a longer or shorter notice by adver-
tisement, according to the residence of the
owner, whether in or out of the district or of the
United States. Where tho owner is out of the
jurisdiction of the Corporation, the assessment
can impose no personal liability on him. But
where he resides in the city, he may be consid-
ered as personaJly liable for the taxes assessed
against his property, and "charged to him;'*
and though not liable to an action of debt, the
12th section of the Act provides an additional
remedy for the Corporation. Besides that of
proceeaing in rem, under the provisions of the
10th section, it enacts that "the person or per-
sons appointed to collect anv tax imposed hr
virtue of the powers granted by this Act shall
have authority to collect the same by dislreas
and sale of the goods and chattels of the per-
son chargeable therewith," &c.

The Act of May 26th, 1824 (4 Stat, at L.,
75), which modifies and changes some of the
provisions of this Act, provides, among other
things, " that no sale for taxes shall be void by
reason of such property not heir g assesaed or
advertised in the name of the law ml owner.*'

Without inquiring whether this Act repeals
the 12th section of the previous Act by impli-
cation, it shows plainly that the property

<w r. s.

1859.

HOWI.AND V. GrKBNWAT.

491^508

fleaaed is considered as primarilv liable for the
tax, withoat regard to ownership. But assum-
ing that the owner, residing in Washington, is
atill personally liable for taxes assessea on his
unimproved lots, there is nothing to be found in
this law that, by any fair construction, requires
that the remedy against the person must be ex-
hausted before that against the property charged
with the tax can be resorted to. It is not
necessary to the validity of the assessment and
«Ue of the property taxed that the name of the
true owner be ascertained. The collector, there-
fore, cannot be bound to search for him, or to
distrain the personal property of one who may
or may not be the owner, even when named as
such in his assessment list.

The remedy given, by the 12th section, to the
Corporation is CO ordinate or cumulative, but is
not imperative as a condition precedent to the
exercise of the authority to sell the property
assessed It is a power conferred on the offi-
cer, to be used at his discretion — not a favor to
the owner. If he is unable to pay the taxes
assessed on his property, it mav not be a very
desirable measure for him to have his house-
hold furniture distrained and sold on ten days*
notice, when the remedy against his land can-
not be pursued till two years' taxes are due and
unpaid: and the owner has then two years more
to redeem his land after the sale. A construc-
tion of this Act, which made it the imperative
duty of the collector to distrain the personal
property, might be ruinous to the proprietor,
And deprive him of an important privilege.

The City of Washington was laid out on an
immense scale. But a very small portion of
the lots and squares were improved or produc-
tive. Their value to the owners was, in a great
measure, prospective, while the present burden
of taxes, to those who owned large numbers of
them, was oppressive. As we see in the pres-
ent case, if the collector had levied on the per-
sonal property of the owner for the taxes
charged on his vacant and unproductive lots,
it would have left him without furniture in his
house, or servant to wait on him. Hence, a
four years' delay was to him a valuable privi-
lege. It demonstrates, too, the evident policy
or the Act of Congress in not compelling a sale
of the owner's personal property, before the
lands charged could be sold. In Georgetown
and Alexandria, old settled towns, where the
lots were nearly all improved, and yielding
profit to the owners, the statute adopted a dif-
ferent policy. By the proviso to the 8th sec-
tion of the Act of 1824, which applies exclu-
sively to those towns, the collector is 'not per-
mitted to sell real property where the owner
charged with the tax has sufllcient personal
•estate, out of which to enforce the collection of
the debt due.

The case of Mcuon v. i^orsem, 9 How., 248,
has been urged in the argument as an example
of the construction of this Statute, which should
be followed in this case, and where the word
'*may" is construed to mean "must." But that
case has no analogy to the present. It is only
where it is necessaxy to give effect to the clear
policy and intention of the Legislature, that
such a liberty can be taken with the plain words
of a statute. But there is nothing in the letter,
spirit or policy of this Act, which requires us
to put a forced construction on its language,

^ee 22 How.

or interpolate a provision not to be found
therein.

In this case, the owners of the tax title have
had the possession, paid the taxes, built and
made valuable improvements on the lot, in the
presence of the former owners, for near twentv
years. That which was of comparatively small
value at first, has now become valuable. Un-
der such circumstances. a court of justice should
be unwilling to exercise any judicial ingenuity
to forfeit even a tax title, where the former
owners have been so slow to question its valid-
ity.

The counsel for the appellees have endeav-
ored to support this instruction of the court,
by reference to certain ordinances of the Cor-
poration, which, among other things, direct the
collector to levv first on the personsd property
of the person charged with the tax, unless such
person shall give consent in writing to the con-
trary. This direction to the collector is a very
proper one. It leaves the election of this rem-
edy to the person charged, and not to the offi-
cer. But the power to sell the lands for taxes
is to be found m the Acts of Congress, not in
the ordinances of the Corporation. They can
neither increase nor vary it, nor impose any
terms or conditions (sucn as evidence of the
owner's election), which can affect the validity
of a sale made with in the authority conferred
by the statute.

The purchaser of a tax title is not bound to
inquire further than to know that the sale has
been made according to the provlBions of the
Statute which authorized it. The instructions
or directions given by the Corporation to their
officers may be right and proper, and may
justly be presumed to have been followed; but
the observance or non-observance of them can-
not have the effect of conditions to affect the
validity of the title.

The question argued bv the counsel of appel-
lees, again bringing up the endless controversy
as to the terminus a quo, in the computation of
time, and which was noticed by this court in
the case of QriJfUh v. Bogert, 18 How., 102, is
not in the case as presented bj^ the record, and
we cannot anticipate its decision.

Judgment reversed and venire de novo.

Cited— 52 Ind., 88 ; 18 Mott. k H., 686.

JOHN HOWLAND, SAML. MEEKER,
JOHN CHAD WICK and OLIVER 8.
HALSTEAD, Jr., ClaimanUof theBark
Griffiiv, her Tackle, &c., Appts,,

JOHN GREENWAY Am GEORGE C.

DICKSON, Libts.

(See 8. C, 22 How., 481-608.)

Master of vessel must acquairU himself with the
laws of (he country with which he is trading —
appellants responsible for miscarriage of their
master and agent— ddivery of ca/rgo into cus-
tom house not suffldenz delivery.

It is the duty of the master of a vessel to acquaint
himself with the laws of the oountry with which
he is trading, and to conform bis conduct to those
laws.

89t

401-503

SuPRBMB Court of thjb Unitkd States.

Dbc. Tbrm,

He cannot defend himBelf under asserted Igno-
rance, or erroneous information on the subject.

It is the habit of every nation to construe and
apply their revenue and navigation laws with ex-
actness; and^evory ship master engaged in aforei^rn
trade, must take notice of them.

In this case the master was Informed of his duties
upon his arrival at the port of destination, by the
omoers of the customs, and his embarrassment and
loss can be attributed to nothing but his inatten-
tion.

Appellants are responsible for the miscarriage of
their master and agent. Their contract is an abso-
lute one« to deliver the dargo safely; the perils of
the sea, only, excepted.

Under such a contract, nothinff will excuse them
for a non-performance, except they have been pre-
vented by some one one of those perils, the act of
libelants, or the law of the country.

No exception of aj>rlvate nature, not contained
in the contract itself, can be engrafted upon it by
implication, as an excuse for its non-performance.

It was for the libellees to furnish the evidence to
discharge themselves for the failure to perform
their contract.

The delivery of the oanto into the custom-house,
under the order of the officers, and the payment of
the duties by the consignees, was not a right deliv-
ery, and the consignees are not responsible for their
safety afterwards.

Where the delivery contemplated by the contract
was a transfer of the property into the power and
possession of the consignees, the surrender of pos-
sei»sion by the master must be attended with no fact
to impair the title, or affect the peaceful enjoyment
of the property.

Argued Mar. $1, 1860. Decided Apr. 16, 1860.

APPEAL from the Circuit Court of the Unit-
ed States for the Southern District of New
York.

The libel in this case was filed in the District
Court of the United States for the Southern
District of New York, by the appellees, on a
contract of affreightment.

The district court entered a decree in favor
of the libelants. This decree having been af-
firmed, on appeal, by the circuit court, the
claimants took an appeal to this court.

A further statement of the case appears in the
opinion of the court.

Mewrs. O. S. Halstead and O. S. Hal-
•teftcU Jr.» for appellants:

The bark arrived at Rio, Jan. 28, 1858. She
had a manifest, authenticated by the Brazilian
Consul at New York, open, in the hands of the
master, and a duplicate one, sealed up by the
Brazilian Consul at the port of sailing, and di-
rected to the inspectors of the custom house at
Rio. She was boarded by the customhouse
offloer immediately on her arrival. Greenway
& Co. were immediately, and before giving en-
try, applied to by the master to act as consis^nees
of the bark, and agreed and assumed the duties
of such consignees.

Greenway & Co., by their Shipping Clerk
Magalhaer, when giving entry, received the
open manifest from the visiting ofllcers, for the
purpose of completing the necessary formalities.
He examined that manifest, and says there was
no entry in it of 182 boxes. He says it was two
or three days after her arrival that the bark
commenced' discharging at the customhouse
wharf. Greenway & Co. nad the open manifest
some two days, at least, before the bark com
menced discharging. We submit that the
testimony shows that Greenway & Co. then
learned that the boxes were omitted in the man-
ifest.

The testimony shows that the omission of the
boxes, in the open manifest, wa^ observed by

398

Greenway & Co., in time to supply the omis-
sion and avoid all difficulty; and (so far as it
may have any bearing upon a view of the whole
case) that the same is true in reference to Ab-
ranches & Co. The consignees failed to notify
the master of the omission. It could then have
been supplied by the master, and all diflSculty
avoided. The supplying it then would be the
same,in effect, as if it had been supplied by the
master before delivering the manifests to the
custom-house officers. On this open manifest,
the master could then have supplied Uie omis>
sion. It was on this only that he could have
ever before supplied it. I'he omission by the
consignees, after discovering the error in time
to have it corrected, to notify the master of it,
was a gross failure of duty as consignees, and
is proof of intended fraud.

We are nowhere told when and how the omis-
sion first came to the knowledge of the custom-
house, nor when the goods were seized nor whea
they were sold.

What could more strongly give the character
of fraud to the omission of the consignees to
notify the master of the omission, at the time
when it could have been supplied by him?

We submit that this testimony oi the value
was insufficient. It was, in the nature of thingn,
impossible for us to give any proof whatever
of the value. The chairs and furniture were
inclosed in boxes; how many boxes contained
chairs, and what kind of chairs; and how many
contained tables, and what kind ; and how many
other furniture, and what kind, it is impossible
for us to show. The boxes contained 2,618 cubic
feet, freight fifteen cents per foot. A space
eighteen feet square by eight feet high would
contain two thousand five hundred cubic feet^
within twenty-one feet of the cubic feet in these
boxes. How could chairs and furniture that
could be in these boxes be worth $5,000 or $6.>
000? There is no evidence that the chairs and
furniture contained in the boxes were worth
that.

As to damages. This libel is in a cause of
contract, and the libel prays damages for the
nondelivery of the goods. The actual damage
to the libelants, is the measure of damages to
be awarded.

The court, we trust, will not permit these
consignees to make a speculation out of a case
such as the testimony shows this to be, and
where no fraud could have been intended, the
boxes and every article of cargo being actually
delivered into the custom-house.

Again; the charge in the libel, that the boxea
or goods were confiscated by the Brazilian Gov-
ernment to its use, is wholly unsustained. There
is no evidence that they were subject to such
confiscation, and if they were so subject, there
is no proper evidence of any act of confiscation
by the said government.

* 'The laws of the port of Rio do not autliorize
the seizure of goods after they have been dis-
charged into the custom-house, for omission of
entry in the manifest "

Mewrs. H. O. De Forest and O. Gilford*
for appellees:

1. The ship was bound by the bill of lading,
to deliver the goods to the consignees.

The general rule is, that the delivery must be
to the consignee in person, and this rule is al-
ways applicable, unless some other mode of

68 V. S.

1859.

UOWLAUD ▼. GrBBNWAT.

491-503

delivery is Baocdoned by the usage of trade or
express contract.

Ang. Carr., sees. 297, 298; 1 Pars. Mar. Law,
158: Price ▼. Bnoell, 8 N. Y., 825, and cases
cited; Qilmm ▼. CWmt. 17 Wend., 805.

2. In the case of sea-going vessels, the usages
of most ports make a delivery on the whfu^,
vnth reasonable notice to the consignee, a suffl-
^cient delivery. If the consignee cannot be
' found, or declines to receive the property, the
carrier is not justified in leaving it on the wharf,
even after notice. It is his duty, in such a case,
to place it in a proper and safe place, where the
consignee can obtain it.

Oiirander v. Bfwon^ 15 Johns., 42; Fi»k v.
Newton, 1 Den., 45; Ang. Carr., sec. 800; 1
Pars. Mar. Law. 155, n&U,

8. In the present case, the goods were never
delivered to the consignees.

It does not appear that Greenway & Co. ever
received notice from the master that the goods
were being dischareed, or that they were ever
invited to receive them. On the contrary the
testimony shows that-the goods were landed on
the custom-bouse wharf, and deposited in the
custom-house, and were there seized before any
attempt was made by the master to make deliv-
ery, and while they were still in the custody of
the officers.

4. The clause in the bill of lading, stating that
the goods were "to be delivered at the ship's
tackles," does not vary the obligationl'of the car-
rier to make such a delivery as shall give to
the consignee the actual possession of the prop-
erty.

5. The non delivery of the goods not having
been occasioned by the accept^ perils, the ship
and owners are clearly liable for their value.

Even if the seizure had been the arbitrary
and merely capricious act of the Brazilian Gk)v-
emment, the failure to deliver would not have
been excused.

GoeUng v. Higgine, 1 Camp., 451; Spenee v.
C7u)dwidc, 10 Q. B., 517; 8. C, 10 Ad. & E..
N. S. ; Ehiane v. HatUm, 4 Man. & G., 954.

But the seizure was directly occasioned by
the culpable neglect and omission of the master.

6. Even if the goods luid come into the pos-
session of Greenway & Co., the ship would not
have discharged herself. Her duty was to de-
liver possession clear of all claims and liens in-
curred by the fault of her master and owners.
Anything short of this would not have been
the delivery contracted for under the bill of
lading.

7. The commissioner did not err in his com-
putation of damages.

The value of the propertv at Rio was sworn
by Abranches to be $6,000, and the invoice
value at New York was stated by Magalhaer to
be between $5,000 and $6,000, which, with the
addition of freight, &c. , harmonize, the testi-
mony. The claimants had the opportunity of
croflsexaminine Mr. Davison, who purchased
the goods in New York ; but they deliberately
refrained from doing so.

8. This court will not, on this hearine, con-
sider any exception as to the admissibility of
any of the depositions or exhibits.

The depositions were filed and opened, and
notice thereof given to the claimant's proctors,
Jan. 18, 1855.

See 22 How.

See the 118th Rule of the District Court,
Southern District of New York.

Rule 88, of the Supreme Court, however, dis-
poses of this question, providing that where an
exception to the admissibility of a deposition,
&c., does not appear on the record, it will be
disregarded.

Rule 88 Feb. Term, 1824, re-enacted as Rule
18, Dec. Term, 1858.

9. The decree of the circuit court should be
affirmed with costs.

Mr. Justice Campbell delivered the opinion
of the court:

This was a libel in the District Court of the
United States for the Southern District of New
York, against the bark Griffin and her owners,
on a contract of affreightment by the appellees.
The libel stated, that in November, 1852, at
New York, there was shipped on that barque, of
which the appellants are owners, one hundred
and thirty-two boxes of chairs and furniture,
to be delivered at the ship's tackles at the port
of Rio de Janeiro, to the appellees, according
to the tenns of a bill of lading. That the reg-
ulations of the port of Rio de Janeiro require
the owner or master of a vessel arriving there,
to submit to the officers of the customs a mani-
fest of the cargo on board; and that cargo not
mentioned in the manifest cannot be passed
through the custom-house, but is liable to
seizure and confiscation for that omission.

That the master of the barque omitted to enter
the said consignment on the manifest rendered
by him on his arrival, and in consequence the
boxes were seized and confiscated, and so were
lost to the consignees. The libellees answer
that the ^oods referred to in the libel were dis-
charged m accordance to the bill of lading, un-
derthe laws and regulations of the port, and un-
der the order of the proper government officers,
and went into the custom house under the di-
rection of the libelants, they paying the duties
thereon.

That after the delivery at the ship's tackles
of the said shipment, the consignees became
responsible for their safety ; and that they were
not confiscated or forfeited to the government,
nor abandoned by the consimees to the owners
of the ship. Upon the pleadings and proofs, a
decree was rendered against the libellees in the
district court, which was affirmed in the cir-
cuit court, on appeal.

It appears from the testimony that it is the
duty of a master of a foreign vessel, upon her
arrival at the port of Rio de Janeiro, to deliver
to the proper officer (Guarda Mor), upon bis
visit to the vessel, his passport, manifest, and
list of passengers. He Ib required, *'at the
end of the manifest," to make such ** declara-
tions or statement for his security by addine
any packages that may be omitted or exceeded
in his manifest, giving hip reasons for such
omissions; no excuse will afterwards be ad-
mitted for any omissions or error.'*

That, " when it is proved that the vessel
brought more goods than are specified or con-
tained in the manifest, and not declared by the
the master, such goods will be seized, and divi-
ded among the seizors, the master also paying
into the National Treasury a fine of one half
their value, besides the customary duties there-

898

491-508

Sup&KKB Court of thv Unitbd Statju.

Djsc. Tbhm,

on." It further appears, that The Griffla
reached the port of Rio de Janeiro in January,
1858, and that her master rendered her pass-
port, manifest, and list of passengers, and was
required to make any statement or declaration
in addition, and informed that no other oppor-
tunity would be afforded to him. The master
answered, that he had no addition to make or
declaration to record. The goods were dis-
charged according to the custom of the port,
under the direction and orders qf the revenue
officers, into the custom-house, and while there,
and before the entry had been completed, they
were seized aud confiscated under the reg-
ulation before stated. In a petition by the mas-
ter to the Brazilian Government for a remission
of the forfeiture and penalty he had incurred,
he says: " That on the last voyaee of the ves-
sel a seizure was made of one hundred and
thirty- two packages of furniture, more or less,
on the ground that they were not entered in the
manifest, and, although the petitioner acknowl-
edges that the customhouse officers have acted
according to the instructions of the department,
atill there are reasons of equity which render
this seizure contrary to law."

These reasons were, that the Brazilian Consul
at New York was a novice in his office, and had
failed to give him accurate information, and had
approved of a manifest full of mistakes; and
that the master had acted in good faith, and
was obviously free from any suspicion of a de-
sign to defraud the revenue. This petition
was referred to the director general of the
revenue, who returned for answer: ''That
taking into consideration the quantity of the
packages seized (180 cases), and the quality of
the gSodB therein contained (furniture), and
more particularly the circumstances which oc-
curred before the seizure thereof (the packages
having been landed, and the duties paid), there
is no plausible reason to ascribe to fraud or bad
faith the omissions of the said packages in
the manifest of the vessel in which they were
imported ; but, on the other hand, the circum-
stance of the proof of fraud, or even of its pre-
lum ption, is not essential in order to render
the seizure a legal one in the present hypothe-
sis. It is expressed in the case before men-
tioned, in the articles 155, 156, of the €leneral
Regulations of the 22d June, 1886, that the
stmple fact of finding either more or less pack-
ages is punishable with the penalties therein
decreed; and the seizure to which the petition
refers, having been made and adluoged in
conformity with the provisions of the said
article 155, I am of the opinion that the decis-
ion of the custom-house ought to be confirmed. "
The decree was entered accordingly. The
testimonv shows that the packages were sold
by the inspector of the customs as forfeited,
and that the consignees sustained a total loss.
There is no testimony to show that they con-
tributed to produce this result. It was the
duty of the master of the barque to acquaint
himself with the laws of the country with which
he was trading, and to conform his conduct to
those laws. Se cannot defend himself under
asserted ignorance, or erroneous information on
the subject. It is the habit of every nation to
construe and apply Xheir revenue and navigation
laws with exactness, and without much con-

^94 •

sideration for the hardship of individual cases.
The magnitude and variety of the interests de-
pending upon their efficient administration
compel to this, and every ship master engaged
in a foreign trade must take notice of them.

The Viaen, 1 Dod., 145; The Adorns, Edw.,
Adm. 810.

In the case before us the master was io-
formed of his duties upon his urival at the
port of destination by the officers of the cus-
toms, and his embarrassment and loss can be
attributed to nothing but his inattention. The
question arises, whether the appellants are re-
sponsible for the miscarriage of their master
and af;ent. Their contract is an absolute one
to deliver the cargo safely, the perils of the sea
onl V excepted, ti nder sudi a contract, nothing
will excuse them for a non-performance, ex-
cept they have been prevented by some one of
those perils, the act of the libelants, or the law
of their countxy . No exception of a private nat-
tuie, which is not contained in the contract it-
self, can be engrafted upon it by implication as
an excuse for nonperformance. Atkmion v.
RUehiie, 10 East, 588. In Spenoe v. Chodwiek,
10 Q. B., 516. the defendants pleaded, *'that
the ship, in the course of her voyage to Loo-
don, called at Cadiz; and while there, the goods
were lawfully taken out of the ship by the
officers of the customs on a charse of oeiDg
contraband under the laws of Spain, without
default on the part of the officers of the ship.
The court affirm the rule, that when a party
by his own contract, creates a duty or charge
upon himself, he is bound to make it good, if
he mav, nothwithstanding any accident by in-
evitable necessity, because he might have pro-
vided against it b^ his contract?' It was for
the libelTees to furnish the evidence to discharge
themselves for the failure to perform their con-
tract.

They insist that the deliverv of the cargo
into the custom-house under the order of the
officers, and the payment of the duties by the
consignees, was a right delivery, and that the
consignees are responsible for their safety after-
ward. We do not concur in this opinion. The
delivery contemplated by the contract was a
transfer of the property into the power and
possession of the consignees. The surrender of
^possession by the master must be attended with
no fact to impair the title or affect the peaceful
enjoyment of the property. The fulure to
enter the propertv on the manifest was a cause
of confiscation from the event, and rendered
nugatorv everv effort subsequently to discbarge
the liability of the ship and owners.

The appellants complain that the proof does
not support the decree in respect of the damage
assessed. One witness testifies to the marlcet
value of the packages in Rio de Janeiro, and
another approximates their costs in New York,
and upon this testimony the assessment was
made. It was competent to the appellants to
introduce testimony in the circuit court, or in
this court, upon that subject, but none has
been submitted.

We should not be Justified in concluding the
decree to be erroneous under the circumstances.

Decree affirmed.

Cited— 1 Am. Bep., lOB (100 Mass., 8D1) ; H N. T.,
894.

68 U.S.

1850.

Dalton v. Unitbd Statss.

486-448

HENRY DALTON. Appt.,

THE UNITED STATES.

(See S. C, 22 How., 486-443.)

Evidence of aUenage of grarUee of Mexican title

—loo9e eoavergcttione—preeumptioiufrom grant.

Id this oaae. It la held that there is not sufficient
evldenoe to establish the f aot of alienage of the
grantee of a Mexican title, against the strong pre-
sumption of the contrary, arising forom the face
of the e»pediente and definitive title.

In all cases, the testimony of admissions or loose
conversations, should be cautiously received, if re-
xseived at all

Such testimony ought not to be received, to out-
weigh the prima facio (if not conclusive) presump-
tions arising from the espediente and definitive
title.

Argued Dec, 6, 1869, Decided Apr. S3, 1860.

APPEAL from the District Court of the United
States for the Southern District of Cali-
fornia.

This case arose upon a petition filed before
the Board of Land Commissioners in Califomia,
by the appellant, for 'he confirmation to him
of a claim to a certain tract of land.

The Board of Land Commissioners entered a
decree confirming the claim. On appeal, by the
United States to the District Court, this decree
was reversed; whereupon the petitioner took
«n appeal to this court.

A further statement of the case appears in
the opinion of the court.

Mr. R. J. Brent, for appellants:

1. Pio Pico, as governor di interim, had the
general power to grant. His official character
cannot be questioned. Every presumption of
law is in his favor, nor can he be staled a rev-
olutionary governor. The court will Ittdicial-
ly notice the histojr and laws of California,
under the Mexican Government, as much as the
laws of the State of the Union.

FrSnumt v. ^7". 8. 68 U. 8., (17 How.), 557.

When Governor Micheltorena left the Depart-
ment, driven out, it is true, by a revolutionary
party, the office of governor devolved by law
upon the senior member of the Departmental
Assembly (Art. 20, law of March 20 1887;
Arrillaga's collection of decrees, Jan. to Dec,
1837); so that Pico became governor dejure as
welt as de facto. He made this grant as govern-
or ad interim.

Arredondo*s case, 0 Pet. , 727.

The Supreme Court have already recognized
the power of Governor Pico, and it would be
strange that after recognizing his official char-
acter, it should now hold that the presumption
is not in favor, but against the authenticity of
hia acts

U. 8,'y, Vaca, 59 U. S. (18 How.) 556; U.
8. V. Sutherland, 60 U. 8. (19 How.), 863.

This case is totally different from that of The
U. 8. V. Cambueton, for here there can be no
doubt about the bona fides of the grant.

2. It is submitted that there is no sufficient
evidence in the record to show that he was an
alien to Mexico.

None of the declarations of Dalton are in a
positive form. They were made to third parties
under circumstances not affecting this litigation,
and they are not sufficient to rebut the presump-
tion that he was a Mexican citizen. If the
cotirt deem that a material presumption to sus-
tain this grant against these loose declarations

See 22 How.

of his, we have the positive patent of the Mexi-
can authorities, not Issued improvidently by
the governor, but after nearly two months' con-
sideration, and after due report from the muni-
cipal authorities, that there was no impropriety
in the grant.

8. But if the court should be satisfied that
the fact of the aUenage of Dalton Is sufficiently
proved, then it is submitted that this fact does
not constitute, by the Mexican law. an absolute
incapacity on his part to take lands in Califor-
nia.

PhiUips V. Bog&rs, 6 Mart. , 700-745 ; 1 White's
New Recop.. 588; Article 1 of Law of 1824; 1
Rockwell, 451 ; and Regulations of 1828, art. 1,
p. 453

Mr. J. S. Black* Atty-Gen., for Che appel-
lee:

After stating the evidence, and the proceed-
ings under which the land in this case was al-
leged to have been granted, the counsel proceed :

1 object to the allowance of this claim, be-
cause,

Ifit, the execution of the grant by the gov-
ernor, and its delivery to the ipnintee, are un-
satisfactory and illegal. To sustain the first ob-
jection, there needs but a reference to that fund-
damental principle of evidence, which forbids
the admission of any evidence which is not the
best that the nature of the case will admit of.

2. The certificate of approval by the Depart-
mental Assembly is fraudulent, and voids the
whole title.

3. Henry Dalton, being a British subject,
never naturalized under the laws of either Mex-
ico or the United States, as is shown bjr the evi-
dence, was, and is, incapable of receiving or
holding a title to the property in controversy.

Constitutional Law of Mexico, Dec. 15, 1835,
art. 18; decree of March 1842, 1 Rockwell,
61 1 ; Colonization Law of 1824, 2 Whites Recop. ,
pp. 59, 62; Arguello's case, 59 U. S. (18 How.),
547.

4. Pio Pico, at the date of this grant, had no
power to devest the nation of its title in the
public domain, and bestow it upon any individ-
ual.

Upon this point the counsel reviewed the
dhier oC the events connected with the expul-
sion of Micheltorena and the accession of Pico.

5 The grant was coupled with the condition
to pay $600, which has never been complied
with.

Mr. Justice Grier delivered the opinion of
the court:

The title of Dalton is found in the archives,
and its authenticity is not disputed. The es-
pediente exhibits:

Ist. A petition of Henry Dalton, dated March
12th. 1845. at Los Angeles, setting fourth that
he is a resident of that citv; that he is endeavor-
ing to increase the number of cattle on the
premises which he possessed, called Azusa, but
that he lacked more land for that purpose; that
the mission of San Gabriel owned a large plain
adjoining his tract of Azusa, which was useless
to them. It was accompanied with adieenooT,
map of the land. The quantity desired was
two eitiott.

On the 13th of March, Pio Pico, actine gov-
ernor, makes the usual marginal order for in-
formation, referring th^ petition to Father

895

4S(M4d

SuPRBMS Court of the United Ii^atkb.

Dbc. Term,

Thomas Estinega, minister to the mission of San
Gabriel, to report.

March 26th. Estinega reports, that the tracts
solicited is one of those which the mission can-
not cultivate, because it is deficient in water;
and considering that Dalton offers to deliver
him, as a gift for the Indians, $500. he con-
sents that a gnui of the land be made to Dalton.

This petition was referred also to the munici-
pal counsel of Los Aneeles, who reported in
favor of the grant, and on the 14th of April
certified their approval to the governor.

On the 26th of May, 1845, Gk)vemor Pico
orders a grant to be made out for two ntios, and
sent to the Departmental Assembly for their ap-
proval.

June 9th, 1845. The Departmental Assembly,
upon report of the. committee on waste lands, to
whom the eapediente bad been referred, ap-
prove the grant in conformity with tbe Law
of August 18th, 1824. and the Regulations of
2l8t of November, 1828.

In pursuance of tMs grant, judicial posses-
sion was delivered to Dalton, February 14, 1846,
in due form, with a regular survey of the
boundaries.

The only objection urged in this court to this
title, as justifying its rejection, is, that Henry
Dalton was a foreigner, and had not been natural'
ized, and was, therefore, incapable of taking a
grant of land.

The counsel for the plaintiff in error deny
both tbe law and the fact, as assumed in this ob-
jection.

Ist. Thev contend that it was no part of the
policy of Spanish or Mexican Gk>vemment to
exclude fereigners from holding lands: and that
the Colonization Law of 1824 invites foreigners
to " come and establish themselves within the
Mexican Territory, and gives them privileges
against taxation," &c., &c. ; and provides that,
until after 1840, the General Congress shall not
prohibit any foreigner as a colonist, unless im-
perious circumstances should require it with re-
spect to individuals of a particular nation.

2d. They contend, also, that the Regulations
of 1828 require the governor to obtain the neces-
sary information as to whether the petitioner is
a person within the conditions required to re-
ceive a grant ; that the espedienU found in the
record shows a full compliance with the law;
that the definitive title, which is a valid patent,
recites that the petitioner was *' in the actual
possession, by just title, of a rancho " known
by the name of Azusa; that this is a legislative
adjudication of the fact of the grantee's capacity
to hold land, and per se a naturalization, if he
had previously been an alien ; that, at least, it
affords a piima fiicie, if not a conclusive pre-
sumption, of the grantee's capacity to receive a
further grant of land.

8d. They contend, also, that any legislation
repugnant to this policy of the Government of
Mexico since that time originated in, perhaps,
a just jealousv of their American neighbors,
and was aimea wholly at them, and intended to
apply only to the colonies bounding on the
United States; that this is apparent from the
edict of Santa Anna of 1842, which permits
foreigners not citizens, residing in the repub-
lic, to acquire and hold lands, and excepts only
the departments '* upon the frontier and border
ing upon other nations;" that California was

896

never treated as within this categoffy, as the
colonized and settled portion of it is separated
a thousand miles from the frontier or border of
any nation, and was at that time almost a terra
incognita to the rest of the world.

4th. They contend that, by the Spanish as
well as by the common law, a foreigner is not
incaoable of taking a grant of Und. but holds
it subject to be denounced in the one case, and
forfeited by an inquest of escheat in the other;
that the grant in this case being complete,
neither the United States Land Commissioners,
nor the courts authorized to adjudicate the
Mexican title under the Treaty,can exercise the
functions either of denouncers or escheators.

5th and lastly. It is contended, that even if
the court considered itself bound to declare Uiis
grant void by reason of the alleged incapacity
of the grantee to take or hold, yet that there is
no sufficient evidence to establish the fact of
alienage against the strong presumption of the
contrary, arising from the face of the sgpediente
and definitive title.

The court do not intend to express any opin-
ion upon the first four of these propositions, as
the last suggests a sufficient reason for the con-
firmation of this grant.

In all cases, the testimony of admissions or
loose conversations should be cautiously re-
ceived, if received at all. They are incapable
of contradiction. They are seldom anything
more than the vague impressions of a witness
of what he thinks he has heard another say —
stated in his own language, without the quali-
fications or restrictions, the tone, manner, or
circumBtances, which attended their original ex-
pression. If a complete record title, wit^ ten
years' possession, could be devested by such
testimony, its tenure would be very precarious,
especially where the owner'is surrounded by a
population of settlers interested in defeating it.
All the evidence on the record on the subject of
alienage, besides that of a brother who proved
himself an alien, is in the deposition of two wit-
nesses. One states that Dalton, in order to
avoid serving as a juryman, said " he did not
claim to be an American or Mexican citizen."
He might well have been a citizen, although he
was not desirous of setting up such a claim on
that occasion. The other states that in 1847,
during the war, when the country was occupied
by the American forces, he said "ho was not a
Mexican, and never intended to become an
American citizen." At such a time, he may
have had many motives prompting him to make
such a representation. The Mexican Govern-
ment had ceased to protect him, and the Treaty
of Guadaloupc Hidalgo had not then made him
an American citizen.

Now. assuming that these witnesses have re-
membered and reported the precise words used
by the claimant in these loose conversations,
they contain no positive assertion that he had
never been naturalized, or was bom out of
Mexico. Such testimony ought not to be re-
ceived to outweigh the prima facte (if not con-
clusive) presumptions arising from the eepedi-
ente and definitive title.

In this respect, this case closely resembles the
case of United States v. Reading, 18 How., 1.

The decree of the district court i$ revmed^
and the title of the claimant to iJie land in ques-
lion ie hcrebg confirmed.

68 U.S.

ia59.

N. Y. & Balt. TiiANS. Co. V. Phila. & SAVANMAn Stm. Nav. Co. 461-478

THE NEW YORK AND BALTIMORE
TRANSPORTATION COMPANY, AppU.,

THE PHILADELPHIA AND SAVANNAH
STEAM NAVIGATION COMPANY.Own-
era of the Steamship EsTB'roNB State.

(See S. C, 22 How., 48M78.)

What <ws mfflcieni lookouts on vesseU — steamers
meeftTig sailing vessels must keefp out of their
way — propellers not governed by rule of sailing
vessels — rule of steamers meeting each other.

Collision between a steamer and a barge, In tow ol
the propeller, on tbe River Delaware.

Lookouts stationed in positions whpre the view
forward, or on the side or the vessel, is obstructed
by the lights, or any part of the vessel, do not con-
stitute a compliance with the requirements of law.

To constitute such a eompllanoe, they must be
persons of suitable experience, properly stationed
on the vessel, and actively and vigilantly employed
in the performance of duty.

Steamers are required to keep out of the way of
sailing vessels, upon the ground that their power
and speed are far greater than vessels of the latter
class, and those in charge of them can more readily
and effectually command that power and speed, so
as to avoid a collision, when it would be impossible
for a sailing vessel to keep out of the way.

None of the reasons on which tbe rule Is founded,
as applied to sailing vessels, exist in case of propel-
lers, which have nearly the same speed as side- wheel
steamers, and quite as much power.

If they take other craft in tow, those in charge of
them ought to augment their vigilance, in propor-
tion to the embarrassments they have to encounter,
especially when they do not see fit to slacken their

The law is well settled, that steamers approaching
each otlier from opposite directions, are respective-
ly bound to port their helms and pass each other on
the larboard side.

Where both vessels, as they approached each
other, were near mid-channel, and the propeller
starboarded her helmt and attempted to cross the
bows of the steamer, that movement of the propel-
ler was a direct violation of the rules of navigation,
and was entirely without excuse.

Argued Mar. £6, 1860. Decided Apr. 183, 1860.

APPEAL from the Circuit Court of the United
States for the Eastern District of Pennsyl-
vania.

The libel in this case was filed in the District
Court of the United States for the Eastern Dis-
trict of Pennsylvania, by the appellants, to re-
cover damages resulting from a collision.

The district court entered a decree dismissing
the libel. This decree having been affirmed,
on appeal, by the circuit court, the libelant took
an app)eal to this court.

A further statement of the case appears in the
opinion of this court.

Messrs. Wm« Schley and O. Bt. Whar-
ton, for appellant :

1. The Artisan and her tow were not on an
equality with The Keystone State, and the rules,
whether statutory or judicial, applicable to ves-
sels on an equality with respect to the capacity
of self-management, are not applicable to the
former.

The Act of Congress of Aug. 80, 1852 (10
Stat, at L., 61-72), applies only to passenger
steamers.

See sec. 42.

So, also, the rules of the inspectors under the

NoTK. — CoUigion—^rviUstor avoiding— steamer meet'
ingsteamer. See note to Williamson v. Barrett,
541J. 8. (13 How.), 10.

See 22 How.

authority of the 29th section, in the matter of
vessels passing each other, signal lights. &c.,
embrace only the same class of steamboats, and
are intended to avoid collisions between such
vessels.

Those rules were, however, obligatory on The
Keystone State.

The 5th rule of the supervising inspectors,
adopted Oct. 29, 1852. provides that it shall not
be lawful for an ascending boat to cross a chan-
nel, when a descending boat is so near that it
would be possible for a collision to ensue there-
from.

This rule was violated by the steamer.

Although not bound by the statute, the pro-
peller did adopt the dictates of prudence and
g^ood seamanship, by keeping in to the Jersey
side of the channel, and leaving the center of
it free.

A tug with a tow in charge, is at least as help-
less, in comparison with a steamer, as a sailing
vessel; and with respect to the latter, the rule
is well settled, that the steamer meeting such an
one must give way

See FaSiion v. Wards, 6 McLean, 163; New
York and Liverpool Mail Steafnship (h. v. Bum-
baU, 62 U. S. (21 How.), 372; The Oregon v.
Rocca, 59 U. S. (18 How.), 570; 8t, John v.
Paine, 10 How., 583; The O&nesee Chief 12
How., 451.

There is nothing in our case to make ft an
exceptional one, or subject it to other rules of
navigation.

The Keystone State could have avoided the
collision; and by the Law of 1852 and the
decisions of this court, she was bound to avoid
the collision if possible.

2. It being night, and the steamer approach-
ing the harbor, it was her duty to proceed slowlv
and with caution ; not having done so, slie is
responsible for the consequences.

Gulbertson v. 5/kwr. 59 U. S. (18 How.), 584;
The Louisiana Y. Fisher, 62 U. S. (21 How.). 1;
Peck V. Sanderson, 58 U. S. (17 How.), 178;
The James Watt, 2 W. Rob. , 271 ; The Birken-
head, 8 W. Rob., 75; The New Yorky. Bea, 59
U. S. (18 How.), 223.

8. Even if the libelants committed any fault
(which is, however, denied), a small exertion on
the part of the respondents being sufficient to
have prevented a collision, they were bound to
make it.

The Genesee Chief, 12 flow., 461 ; St. John v.
Paine, 10 How., 557; Newton v. SXeblnns, 10
How., 586.

4. If both vessels were in fault, it was an
error to throw the whole loss on the libelantB;
the damages should have been divided.

The Jam£s Gray v. The John Fraser, 62 U.
S. (21 How.), 184; The Catharine y . Dickinson^
58 U. S. (17 How.), 170; Chamberlains. Ward,
62 U. S. (21 How.), 548.

The barge followed the course of The Artisan,
and obeyed her movements. She was entirely
under her control. There is no evidence of any
fault imputable to the barge; her beins, there
fore, the thing which actually came m collis-
ion with the steamer, makes no difference.

TVkf James Gray, 62 U. S. (21 How ), 194.

Messrs. Charles S. Keyset*, St. George
T. Campbell andP.McCall, for appellees:

1. The Act of Congress of 1852 (10 Stat, at
L., 661-672), and the rules of the supervising

897

461-473

SUFHBMK COUBT OF TliS UnITBD StATBB.

Dec. Tsrm^

inspector appointed under the same, were appli-
cable to The Keystone State as a passenger steam-
et. and to the propeller also, if carrying passen-
gers as set forth in the libel, so far as respects
lights and movements.

2. The Admiralty rules arc imperative— they
are obligatory upon vessels approaching each
other, from the time necessity for precaution
begins, and continue so long as they advance.

Jf. Y. & L. di U. 8. 8. Co. V. BumbaU, 62 U.
a (21 How.), 888.

8. The rule laid down is, that when two steam
vessels are approaching each other, each shall
port and go to the right, passing each other lar-
board and larboard.

This rule is imperative in English courts of
Admiralty, and fully adopted by the United
Stales courts. ^

The Duke of Sussex, 1 Wm. Rob., 275; The
GazeUe, 1 Wm. Rob., 471; The WaU, 2 Wm.
Rob., 71; St. John v. Paine, 10 How., 558;
Oregon v. The Boeea, 59 U. S. (18 How.), 572;
Wheeler ▼. The Eastern Stale, 2 Curt. . C.C. 142.

4. A propeller, whether carrying passengers
or engaged and used onljr for towing, and when
having a tow in charge, is still a steamer, sub-
ject to all the general rules applicable to steam-
ers. And the rule of law makes no such distinc-
tion as would require them to be considered,
with respect to other steamers, as sailing ves
sels; on the contrary, a steamer with a tow in
charge, is bound to adopt the same rules with
regard to a sailing vessel as a passenger steamer
— no distinction is recognized between them.
The New York v. Bea, 59 U. S. (18 How.), 228.
They are required also to have a lookout,charged
specially with the duty.

Chamberladn v. Ward, 62 U. S. (21 How.),

571.

5. It was the dutv of the propeller to have a
competent and vigilant lookout stationed at the
forwaitl part of the steamer, actually and vigi-
lantly employed in the performance of that duty.

8t. JohnY. Paine, 10 How., 557; Chamber-
lain ▼. Ward, 62 U. 8. gl How.), 548; The
James Ora/y v. The John Fraser, 62 U. S. (21
How.). 192.

6. No such condition of things existed at the
time and place of the collision, as required the
speed of the steamer to be reduced more than
that stated in the evidence. The distance from
the port of Philadelphia was twenty miles, and
there were no vessels at anchor or otherwise,
to interfere with the full use of the whole
channel.

The New York v. Bea, 59 U. 8. (18 How.),
228; Culbertson v. Shaw, 59 U. 8. (18 How.j,
584; The James Gray v. The John Fraser, 62 U.
8. (21 How.), 185.

7. The 6th rule of the supervising inspectors,
adopted Oct. 29, 1852, cited In appellant's
brief, refers exclusively to boats navigating the
rivers falling into the Gulf of Mexico and their
tributaries.

Mr. JutiHee Clifford delivered the opinion
of the court:

This is an appeal from a decree of the Cir-
cuit Court of the United States for the Eastern
District of Pennsylvania, in a cause of col-
lision, civil and maritime.

It was a suit in rem against the steamship
The Keystone State, brought by the appellants

898

as the owners of the barge known as The A.
Groves, Jr., to recover damages on account of
a collision which took place on the 18th day of
August, 1857, between the steamer and the
barge on the River Delaware, whereby the
barge was sunk in the river, and her cargo was
greatly damaged.

At the time of the disaster the barge was in
tow of a propeller, called The Artisan, which
was also owned by the appellants, and to which
the barge was attached by a hawser, about one
hundred and seventy feet in length. It oc-
curred between one and two o'clock in the
morninff, about twentv miles below the City of
Philadelphia, to which port the steamer wa»
bound on her return trip from Savannah, in
the State of Georgia.

According to the case made in the libel, the
propeller, with the barge in tow, was on her
way from the City of New York to the City of
Baltimore, with her usual complement of
freight. She was proceeding down the river,
on the eastern side of the cliannel, and the
steamer was coming up the river, on the oppo-
site side of the channel, with ample room to
have kept clear of the barge.

To show that neither the propeller nor the
barge was in fault, it is alleged by the libelants
that both those vessels had proper lights, and
that the propeller had sufficient lookouts prop-
erly stationed on the vessel, and that they were
vigilantly employed in the performance of their
duties. They also allege that the steamer, when
about three quarters of a mile distant from the
propeller, changed her course more out into
the stream of the river, heading diagonally
across the channel, in the direction of the de-
scending vessels, and ran with great force and
violence against the barge, striking her on the
starboard side, near the after gangway, and
cutting her down to such an extent that she
immediately sunk in the river. In this con-
nection they also allege that the barge, at the
time of the collision, was laden with a cargo of
mercliandise, valued at $70,000, and that the
goods were damaged by the disaster to an
amount equal to half their estimated value.

It is denied by the respondents that the cir-
cumstances attending the collision are truly
stated in the libel. On the contravy, they aver
that it was occasioned wholly through the fault
and gross negligence of those in charge of the
descending vessels. To lay the founcuUion for
that theory, they allege that while the steamer
was proceeding up the river at mid-channel, is
the regular course of her voyage, and when
about four miles below Marcus Hook, the sec-
ond mate, pilot, and lookout of the steamer,
discovered lights directly ahead, which appear-
ed to be about three miles distant; that the
steamer continued her course up the channel,
keeping the lights on her larboard bow, but as
near ahead as was practicable; that after con-
tinuing that course for some time, and when
about a mile distant from the lights, they were
found to be the lights of the propeller, and ap-
peared to be at mid-channel. Orders were
then given by the pilot of the steamer to port
her helm, so as to bring the lights of the pro-
peller a point on the larboard bow of the steam-
er; and the order was forthwith obeyed. At
that time the steamer, as alleged in the answer,
was heading northeast by east; and sbecon-

68 U.S.

1869.

N. Y. & Balt. Tbans. Co. v. Phila. & Satajnnah 8tm. Nav. Co.

461-478

tiDued on that course, keeping the lights of the
propeller one point on her larboard bow» until
she approached within three hundred yards of
the lights, when the propeller suddenly star-
boarded her helm, ana attempted to cross the
bows of the steamer. On seeing the propeller
change her course in that direction, the pilot
of the steamer gave the signal to slow and stop
in immediate succession, and the orders, as al-
leged, were promptly obeyed. Those orders
were so far carrier into effect that the propel-
ler passed on her course without injury; but
the barge was dragged by the hawser directly
against the bows of the steamer, and thereby
received the damage, as alleged in the libel.

Such is the substance of the pleadings, re-
specting the circumstances attending the col-
lision, so far as it is necessary to examine them
at the present time.

After the hearing in the district court, a de-
cree was entered for the respondents, dismiss-
ing the libel; and on appeal to the circuit court,
that decree was afflrmea— whereupon the libel-
ants appealed to this court.

As appears by the proofs, the steamer, at the
time of the collision, was well manned and
equipped, and was in charge of a branch pilot,
fully qualified to conduct and manage steam
vessels on that river. She was a side-wheel
steamer, of fifteen hundred tons burden, en-
gaged in carrying freight and passengers, and
had proper lights and suflScient and vigilant
lookouts. 'Hiey discovered the lights of the
propeller when she was three miles distant, and
continued to watch the lights till the collision
occurred. On the other hand, the propeller
was a vessel of one hundred and twenty-two
tons burden, and the tonnage of the barge was
about the same.

Three men, the master, the wheelsman, and
one of the watchmen, were on the deck of the
propeller at the time of the collision. All of
the other hands, including the pilot, were be-
low. Of those on deck, the master was stand-
ing forward of the pilot house, but the watch-
man was standing aft the house, which he ad-
mits was higher than his head, so that he could
not see over it. His position for a lookout was
clearly an improper one, as the view forward
was entirely obstructed bv the house of the
vessel. Chamberlain v. Ward, 21 How., 570.
Lookouts stationed in positions where the view
forward, or on the side of the vessel to which
they are assigned, is obstructed by the lights or
any part of the vessel, do not constitute a com-
pliance with the requirement of the law.

To constitute such a compliance, they must
be persons of suitable experience, properly
stationed on the vessel, and actively and vigi-
lantly employed in the performance of that
duty.

In this case, however, it appears that the
steamer was actually seen by the master, who
was in charge of the deck, in season to have
adopted every necessary precaution to have
avoided the disaster, but he admits that he did
not pay much attention to the approaching ves-
sel. When he first saw her, he says she was
proceeding right up the river, but adds, that
in the course of five minutes she changed her
course, and ran from the western towards the
eastern shore, which is the theory set up in the
libel. According to the evidence, the speed of

See 2d How.

the steamer was nine or ten miles an hour, and
that of the propeller was seven or eight miles an
hour, with an ebb tide. At the place where the
collision occurred, the channel of the river is
about three fourths of a mile wide, and the evi-
dence shows that there is a cove or bend in the
river below, so that a vessel coming up the river
in the night time would appear to an inattentive
or casual observer, standing on the deck of a
descending vessel, as being near the western
shore, when in point of fact she was at mid-
channel. Witnesses on both sides were exam-
ined as to the character of the night, and they
generally agree, that while it was somewhat
cloudy, there were intervening stars, and that
it was not unsually dark.

Two propositions were chiefl^r relied on by
the libelants. In the first place it was insisted
in their behalf, that the propeller, with the
barge in tow, ought to be regarded in the same
light as a sailing vessel, and that it was the
duty of the steamer to keep out of the way.
No authority was cited in support of the propo-
sition, and we are not aware of any decided
case that favors that view of the law. Steam-
ers are required to keep out of the way of sail-
ing vessels, upon the ground that their power
and speed are far greater than vessels of the
latter class, and because those in charge of
them can more readily and effectually com-
mand and appropriate that power and speed so
as to avoid a collision, when it would be im-
possible for the sailing vessel to keep out of the
way. 8t. John v. Paine, 10 How., 588; The
Oeneeee Chief y, FUzhugh, 12 How., 468; Steam-
ship Co. V. RumbaU, 21 How., 884. None of
the reasons on which the rule is founded, as
applied to sailing vessels, exist in a case like
the present. Propellers have nearly the same
speed as side-wheel steamers, and quite as
much power. Whether they obey the helm
as readily or not. may admit of a question, but
there is not suflScient difference in that behalf
to justify any discrimination whatever in the
application of the rules of navigation. If they
take other craft in tow, those in charge of them
ought to augment their vigilance in proportion
to the embarrassments they have to encounter,
especially when they do not see fit to slacken
their speed.

It is insisted, in the second place, that the
collision was occasioned through the fault of
the steamer; that she changed her course and
attempted to pass the bows of the propeller,
as is alleged in the libel.

On the part of the respondents, this propo-
sition of facts is denied, and they insist that
the fault was committed by the propeller, in
omitting to port her helm and go to the right.
Beyond question, the law is well settled that
steamers approaching each other from opposite
directions are respectively bound to port their
helms and pass each other on the larboard side.

No attempt was made at the argument to
controvert the proposition, and it is too firmly
established by decided cases to require any
argument in its support.

The Duke of Suseex, 1 Wm. Rob., 285; The
Gazette, 1 Wm. Rob., 471; The James Watt, 2
Wm. Rob., 271; JSt, John v. Paine, 10 How.,
558: T^is Oregon v. Bocea, 18 How., 572;
WheeUr v. The Eastern State, 2 Curt. C. C,
142.

461-478

SiTFRKMB Court of thb UmrsD Statbs.

Dec. Tbhk.

Much testimony was iDtroduced on the one
side and the other upon this point, and it is
somewhat conflictinfr. All that can be done
under the circumstances with any possible ad-
vantage to either party^ will be to state our con-
clusions upon the evidenco. After a careful
examination of the depositions, we think it is
clearly proved that both vessels as they ap-

Sroached each other were near mid-channel,
[ost of the witnesses on board the steamer ex-
pressly affirm that she was near mid-channel
when the liehts of the propeller were first dis-
covered, and they all agree that her helm was
not changed, except for the purpose of bring-
ing the lights of the propeller one point oh her

400

larboard bow, until the propeller starboarded
her helm, and attempted to cross the bows of
the steamer. That movement of the propeller
was a direct violation of the rules of naviga-
tion, and was entirely without any excuse.
Her nuwter may have been deceived as to the
course of the steamer, by the slight bend in the
river; but if so, it is the misfortune of those
who employed him that he was not better ac-
quainted with the navigation, or more attentive
to his duty.

Th» decree of the circuit court it, thertfon,
qfflrmed, trith eotte.

Cited— 18 BlAtohf ., 88 ; t Huffhes, m ; 8 GUff., 461 ;
7 Sawy., 488 ; 46 N. T., 868.

68 U.S.

Ekd of Volumb 68.

ARGUED AND DECIDED

IH THB

SUPREME COURT

OV THB

UNITED STATES,

DECEMBER TERM, 1859.

Vol. 64.

C. S., Book 16. 96

BT'OHTF!! r\

ni.di. V. l.U<Jill<-:<

THE DEOISIOWS

OF THB

Supreme Court of the United States,

DECEMBER TERM, 1859.

REUBEN MIDDLETON, Plf, in Er„

WILLIAM McOREW.

(See 8. C, 28 How., 45-4B.)

AUens eould not inherit in Me^cieo cr Tbsbm.

By the lawi of Mexico, hein, beloff aliens, could
not inherit an estate.

This law of descent is applicable to the landed
property of Texas.

Argued Bee. 7, 1869, Bedded Bee. 19, 1869.

F ERROR to the District Court of the Unit-
ed States for the Eastern District of Texas.
This action was brought in the court below,
bj the plidntiff in error, to recover a certain
tract of iand. The trial having resulted in a
▼erdlct and judgment for the defendant, the
plaintiff sued out this writ of error.

A further statement of the case appears in
the opinion of the court.

Mr. Robert Hvi^hest for plaintiff in error:

The question for the consideration of this
court is, could an alien, or to speak more prop-
erly in the language of the Mexican law, was
e foreigner, not domiciliated in Mexico, in the
year 1^, capable of taking real estate as an
heir from a Mexican domiciliated in Mexico.

To this question we think there is but one
answer, and that in the afflnnative. The grant
in question purports to he to Joshua Davis, a
' 'Mexican by law ;" tn other words,a naturalized
foreigner, as to whom the Supreme Court of
Texas have determined that he was a compe-
tent to acquire by purchase under the 24th ar-
ticle of the Colonization Law of the 24th of
March, 1825, as a native Mexican.

Buie V. (jJumbere, 15 Tex., 586.

It follows that the grantee had capacity to
constitute an heir by testament, for he stood in
the position of a native. The only question,
then, is as to the capacity of the heirs being
foreigners; upon this question the counsel en-

NoTX.— ^MenodB, effect of a» to title to real estate.
See note to Governeur v. Robertson, 24 U. 8. (U
Wheat.), 332. Title and transfer of lands governed
hy lex loci roi sitae. 8ee note to Clark v. Graham,
if U. 8. (6 Wheat.), 577 ; note to Blmendorf v. Tay-
lor, 28 u. 8. (10 Wheat.), 162: note to Darby ▼.
ICayer, 28 U. 8. (10 Wheat.), 4S5, and note to Jack-
son V. Chew, 25 u. 8. (12 Wheat.), 153.

dee 28 How.

tered into a lensthy discussion of, and quota
tions from, the Mexican authorities.

t. But it is supposed that the question raised
here has been settled in four adjudged cases,
recited by brief of defendant's counsel.

HoUiman v. FleebUi, 1 Tex., 700; Tatee v.
lama, 10 Tex., 168; J9bmsdyv. Baetm, 20 Tex.,
556; Blythe v. Eaeterling, 20 Tex., 565.

[Counsel examined these cases at considera-
ble length.]

We think we have shown grave and impor-
tant differences between fomjgpaers and Mex-
icans as contained in the Colonization Laws of
March 24, 1825, and that they did not come
within the rule of the colonization established
by that law, and as a consequence were not
subject to the extraordinary penalty of UieSOth
article. Again ; in the court below it was con-
tended that, granting that all the colonization
laws which were ever in force in Coahuila and
Texas had been repealed, yet the National
Colonization Law of Aue. 18, 1825, was in
full force and effect, and £at the 15th article
of that law declares, that "no person who, by
virtue of this law, acquires a title to lands,
shall hold them, if he is domiciliated in a for-
eign country.

1 White's Recop., 602.

The Supreme Court of Texas have solemnly
determineid that everything in relation to- the
right to a disposition and grant of the vacant
Umds in the State of Coahliila and Texas, and
the other States of the confederation only,
properly belonged to the States, and that as a
consequence, art. 12, which purports to limit
the quantitjT of land which might be granted
to each individual, had no operation wiuin the
limits of Coahuila and Texas; and so in regard
to the 15th art. That was a matter in r^ard
to which the States only had power to act; but
even were this not so, the law contained in the
15th art. could not operate in Texas, because
the title to the land in question was not ac-
quired by virtue of that law, but only by virt-
ue of the Colonization Law of March 24, 1824,
under which the grant of it was made. And
besides, the general Colonization Law was
made in August 1824; and afterwards, in 1828,
another Congress of the Republic established a
general Naturalization Law, one provision of
which was in conflict with the former law.

408

4(M9

BuPRIOfB Ck>nRT OP THB Unitbd Btatb8

Dbc. Tbbm,

We think we have- established:

1. That by the laws of Spain and by the In-
dias, a foreigner domiciliated in a foreign
country in all times past, at least from the time
of Allonso L. Sabeo, in the 13th century, dur-
ing whose reien the 8iet6 Partida$ was com-

giled, could ts&e as an heir to a person dying
I Spain.

2. That this rule is not limited or changed
by reason of anything in the Colonization-Laws
of Coahuila and Texas, or in the Judgments of
the courts of Texas; whence, it follows that —

8. The plaintiff ought to have recovered in
the court below, having derived his title from
the brothers and heirs of the grantee, Joshua
Davis.

All of which proves that the court below
erred in the instructions given to the Jury, and
the Judgment should be reversed.

Mr, W. P. Ballinfl^r* for the defendant
in error:

No principle is more conclusively settled in
the law of Texas, than that aliens prior to the
adoption of the Constitution, in 188o, could not
take lands by descent.

HolUman v. PetMes, 1 Tex., 678; Tate9 v.
lams, 10 Tex., 168; ff&mnby v. Bacon, 20
Tex., 556; Blyths v. Boiterling, 20 Tex.. 665.

Art. 15, law of 1824, provided that '*no per-
son who, by virtue of this law, acquires a title
to lands, should hold them if he is domiciliated
out of the Republic. This general law remained
in force, and has lUways been recognized as the
basis of the power to grant lands by the state
government, and as imposing imperative re-
straints on that power.

BepubUe v. Thom, 8 Tex., 608; Blount v.
Webitor, 16 Tex., 618, 619.

This law was repealed before the grant to
Davis; but no change was to be made on the
concession to the purchasers under the former
law, and purchasers were required to enter into
poesession of the land granted them, within 18
months.

See art. 16. Laws of 1882, art 80. Laws of
1884; Jenkins v. Chambert, 9 Tex., 284.

The grant to Davis, on its face issued under
the Law of 1825, and requires of the grantee
compliance with its provisions.

But the State Law of 1882, and of 1884, arts.
8 and 9, are equally stringent in requiring Mex-
ican domiciliation in order to acquire lands,
and there Lb no single provision, throughout
the entire Colonizatton Laws, departing from
this fundamental policy.

Horton v. Brown, 2 Tex., 78; Homsby v.
Bacon, 20 Tex., 656.

Mr. JtuUee Oajapbell delivered the opinion
of the court:

This action was instituted for the recovery of
land in the Colony of Power and Hewetson, in
Texas, in the poesession of the defendant, and
cldmed by the plaintiff through a conveyance
by the brothers of Joshua Davis, deceased, a
colonist, who died in June, 1885, intestate, and
wiUiout issue. These brothers were citizens of
the United State8,and assumed to be the heirs at
law of the decedent The only question presented
for the examination of this court is, whether
the brothers were capable of taking by in-
heritance real property within the limits of Mex-
ico, or were they disabled by their condition as

404

aliens. The solution of this question must be
found in the Jurisprudence of Mexico, as it is
understood and applied to cases as they have
arisen with the Slate of Texas. If there is
found, in the decisions'of the Supreme Court
of that State, clear and consistent testimony to
the existence of a rule of descent, under such
circumstances the duty of this court will be
performed in ascertaining and enforcing that
rule in this case.

The defendant has referred the court to ft
series of decisions as containing such testimony.

The case of HolUman v. iVSfea, 1 Tex., 678,
was that of heirs claiming the land of a colon-
ist in the settlement of Austin, who after hia
location had returned to the United States and
died, leaving heirs who were citizens of them.
The court intimate, that by the laws of Spain,
as adopted in Mexico, these heirs had no herit-
able blood, and proceed to say: "Whatever
may be the true construction of the laws of
Spain or of colonization on Uie subject-matter,
there can be no doubt that the capacity of
aliens to hold lands in the Republic of Mexioo,
if it ever existed under the laws of Spain, waa
extinguished by the decree of the 12th Marcb,
1828.^ 4 vol. Ordencs y DeoretM, p. 166. The
6th article of this decree is expressed in the
following terms, viz. :

''Foreigners introduced and established in
conformity with the regulations now pre-
scribed, or which shall be nereafter prescribed,
are under the protection of the Laws, and enjoy
ihe civil rights conferred by them upon M^«
icans, with the exception of acquiring landed
rural property, which, by the existing laws,
those not naturalized cannot obtain. • « •
This provision covers all acquisitions of real
property, whether by purchase or inheritance,
and is so understood by the Mexican editor of
Murillos de Testamentos."

The case of Yates v. lame, 10 Tex., 168. was
that of a citizen of the United States claiming
through an ancestor who had died in 1827 in
Texas, holding land by a head right acquired
in 1824. The court announce their conclusioii,
"that, upon general principles perking the
law of 1828, under which this grant was made,
and upon the general policy of the government
in relation to the right or property in lands
(granted for the purpose of colonization) at the
time of the death of the intestate, an heir dom-
iciliated out of the Republic of Mexico could
acquire no right, by inheritance, to lands of
persons dyine in the Province of Texas.*'

The case or Homeby v. Bacon, 20 Tex., 656,
was that of citizens of the United States claim-
ing to share as heirs in real iiroperty of a cit-
izen of Texas, who died in 1885, with other re-
lations of the same degree, who were citizens
of Texas. The court say: "The right of the

f>laintifl*8 vendors (the alien heirs) to claim this
and by inheritance must be tested by laws an-
terior to the Constitution of the Republic ; and by
them, as appears from our previous decirions,
such right cannot be sustained. The plaintiff
claim nothing through them by his convey-
ance."

The case of Blythe v. BaeterHng, 20 Tex.,
565, is that of heirs claiming the lauded estate
of an immigrant to Texas, who died in Ko-
vember, 1888, they being aliens and non-resi-
dento. The court decide, "that it is too well

€4 U. S.

1B69.

Flowxbb y. Fo&bman.

181^-149

settled by repeated decisions of this court to be
longer remraed as an open question, that at
the peric4 of the death of the decedent, his
lieirs^ being aliens, could not inherit his estate."

We understand these decisions to. declare a
law of descent applicable to the landed property
of Texas generally, and not to lands in a partic-
ular colony, or settled under a particular act
of colonization. The case before the court falls
within the control of these decisions.

Ths judgment of the dUtriet eawt ii affirmed.

CHARLES FLOWERS, Survivor of Alice
Flowers, Plff. in Br.,

FRANCIS FOREMAN, Surviving Partner of
Christian Kbllbb.

(See 8. Cm 28 How., 18S-149.)

Maryland SUUtUe of Limitation$ — evietion,
what ie—eeiein of exeeutor in LotUeiana —
when right of auction paeen to heirs.

The Statute of Maryland of the years 1716, oh. 88,
and 1818, ch. 216, constituted a bar to a recovery by
the plaintiffs, as more than three years had elapsed
after their rl^ht of action bad accrued* before the
plaintilffl brought their suit.

Where one had been Judicially declared not to
be entitled t^ land, by the decree of the Supreme
Court, that, of itself, was an eviction under toe law
of IiOuisiaDa, though the court postponed giving a
writ of Possession.

In that State, it Is not necessary to constitute an
eviction, that the purchaser of land should be act-
ually dispossessed.

An eviction may take place when the vendee
continues to hold the property under a different
title from that transferred to him by his vendor.

The Civil Code of Louisiana provides that a testa^
tor may give the seisin of the whole or of a part of
bis estate to his executor. The seisin usually con-
tinues for a year and a day, but may be prolonged
by an act of ihe court.

The seisin of the executor is distinct from and
paramount to the seisin which the law vested in the
neir, immediately on the death of bis ancestor; and
the heir can only deprive the executor of it by pro-
viding security for the performance of his obliga-
tions.

When the testamentary executor submitted to
tbe title of others, and paid them for it, that was
an eviction, which gave to him a right of action in
behalf of the succession against the warrantors of
bis testators.

His right of action passed to the heirs when he
delivered the succession to them, or whenever it
came to their hands by due course of law.

Wbere the heirs seek, by this suit in iHMimps(t,to
recover damages for the failure of their warranty.
tbe suit having been commenced between eight and
nine years after the right of action had accrued ;
beld, that the Statute of Limitations of Maryland
prevents a recovery.

Argued Dee. IS, 1869. Decided Dec, 27, 1869.

IN ERROR to the Circuit Court of the United
States for the District of Maryland.

This was an action of aeeumpeit, brought in
the court below, by the plaintiff in error, to re-
cover damages alleged to have been sustained
by a breach of warranty, contained in a deed
of certain lands in Louisiana.

The trial having resulted in a verdict and
judgment in favor of the defendant, the plaint-
iff sued out this writ of error.

NOTB.— I/imitatioiu, what statute governs: effect of
new Haiutes. Lex fori and not lex loci governs ; See
note toTownsend v. Jemison, 47 U. 8. (6 How.), 4Sn.

fiee 38 How.

A further statement of the case appears in
the opinion of the court.

Messrs. Robert J. Brent and Charles
E. PhelpBt for the plaintiff in error:

We contend :

I. That a valid contract of warranty was
made binding upon Keller & Foreman, the
warrantors. The letter of attorney from the
defendant and his deceased copartner must be
construed according to the law of Louisiana, the
place where the authority was to be executed.

OwingsY. HvU, 0 Pet., 637.

The law of Louisiana implies a general war-
ranty against eviction, as a necessary incident
to every sale.

Civil Code La., 2450, 3477. 2479, 2482; Pres-
tonY. Eeene, 14 Pet., 188.

It follows that Keller & Foreman were bound
by the contract made by them, through their
agent. Armstrong, it being no more tnan the
& lad would have implied, had no such con-
tract been ezpresRed.

Le Boy v. Beard, 8 How.. 451.

II. That said contract was broken, giving a
right of action to the plaintiff.

III. (Upon the defense of limitations.) That
such action accrued within three years prior to
the institution of the suit.

These two points will be considered together.

The contract was concerning land situated in
Louisiana. It was made in Louisiana, and
there it was to be performed. The inquiry,
therefore, is, what, by the lex loei, was neces-
sary to constitute a breach of the contract.

By the civil law, the remedy upon the obli-

gation of warranty is two- fold, and each remedy
as respect to a distinct and independent cause
of action.

The more usual remedy in the French and
Louisiana practice, is the one which was origi-
nally resorted to in the present case, while
pending in the Louisiana court. By it the
warrantor is formally vouched or cited in to de-
fend his vendee's title, as soon as proceedings
are commenced against the latter. If the seller
thus called in cannot defend^ " the Judge con-
demns him to indemnify the defendant, oy the
same sentence by which he pronounces in favor
of the oriffinai plaintiff."

In this form of proceeding, the cause of ac-
tion ^ay be said to arise as soon as the vendee
is troubled in his possession by a suit, for at
that moment his right to oUl in his vendor in
warranty accmes.

Pothier des Yentes, part 2, ch. 1, sec. 2, art.
5, sec. 2; Domat., lib. 1, tit. 2, sec. 10.

The other remedy is the one now being pros-
ecuted, and which was rendered necessaiy by
the fact that the first was ineffectual— the court
which gave judgment not having Jurisdiction
over the absent parties.

In substance, this remedy corresponds to the
ordinary common Uw action of covenant, and
like it is not available until final sentence is
pronounced, and cannot be brought before the
vendee has sustained an eviction, either actual
or constructive.

Pothier des Yentes, part,. 2. ch. 1, sec. 2,art.
5, sec. 2; Domat, lib. 1, tit. 2, sec. 10.

In the present case, therefore, the cause of ac-
tion did not accrue until eviction was consum-
DBA ted

"Eviction" is defined to be "the loss suf-

406

iad-149

SUFRBlfS Ck>17BT OF THB UNITaD STATES.

Dbc. Tbbm,

fered by the buTer of the totality of the thing
sold, or a part t hereof » oocasioned by the right
or claim of a third person."

Ciyil Code, art. 2476.

It Ib decided that this text does not require
actual dispossession. Any holding by the vend-
ee of a title different from that acquired from
his warrantor, falls within its terms.

Pothier des Ventes, No. 96; Landry y. Gck-
met, 1 Bob.. 863; Thanuu y. Clement, 11 Rob.,
397.

If the instruction giyen below can be sup-
ported upon the facts disclosed by the record
evidence, consisting alone of the certified tran-
script of proceedings of the District Court of
Rapides Parish, in the suit of Oalvit y. Mulhol-
lan, we concede that it is unobjectionable in
point of form. If, however, it is predicated in
any, the least degree, upon the pjarol testimony,
it is fatally defective, and for this plain reason,
that it takes the testimony from Uio Jury who
are the sole judges of its credibility, d;^ a per-
emptory charge that the Statute of Limitations
constituted a bar.

The law should have been given to the Jury
hypothetically. leaving them to find the facts.

BvM V. Brooke, 8 GUI., 198; Calteri v. Cote,
1 Gill, 95; Charleeton Ins. Co. v. Corner, 2 Gill,
410; Eagan v. Gaither, 11 Gill & J., 472.

In an action for breach of warranty, the record
of the suit in whidi the title paramount was
litigated, is conclusive evidence of the eviction
in cases where the warrantor had notice and an
opportunity to defend his vendor's title. Where
no such title was given, the record is still pri-
ma faeis evidence, not only of the validity of the
paramount claim, but of its extent, &c.

Civ. Code, arts. 2498, 2494; Clark v. Carring-
ion, 7 Cranch, 808.

It may well be argued that in the present case
the defendant had such notice.

Fieid V. Qibbn, Pet. C. C, 165; BoberU v.
CaidweU, 5 Dana, 512; Wemwag v. Pawling, 5
G. & J., 500.

But whether notice or not, the record is
properly in evidence.

Haneon v. Buekner, 4 Dana, 251 ; (hoinge v.
HuU, 9 Pet., 627.

Now, first examine the facts of this case as
they appear from the record evidence (the record
in the suit of Cdlvit v. MtUhoUan), independent
of the parol testimony, to determine whether
these facts alone do not give the plaintiff a
right of action to which the Statute of Limita-
tions is not a bar.

The litigation upon the paramount title com-
mences in 1888. In 1848 the district court
renders an adverse ludgment, and the defeated
claimants apped. In 1845 the appellate court
affirms this Judgment as to two of the claim
ants, but reverses it as to the two youngest,and
decides that they are each entitled to recover
an undivided eighth.

This decree, even if it liad been in terms a
final Judgment, would not, by the law of Loui-
siana, have per se amounted^ to an eviction.

Murray v. Bacon, 7 Mart, N. 8., 271.

The decision of .the appellate tribunal was
not a final decree, but on the contrary, prelimi-
nary and prospective merely, contemplating
future proceeding and prescribing future ac-
tion, as a condition precedent to a complete
eviction.

406

So far, then, there is no eviction ; therefore
no breach of warranty; therefore no ri^t of
action; and hence we may safely assume that
down to November 1845, limitations have not
commenced to run asainst us.

From the time the decree of the appellate tri -
bunal was filed in the diatrict court, in Nov. .
1846, nothing appears which has the remotest
relation to an eviction, until 1858.

On May 80, 1858, the present plaintiff, with
his now deceased co-plaintiff, for the first time
appear in the cause, make themselves parties in
their capacity as " heirs and universal legatees"
of the original defendant, adopt his- answers
and defense6,and ask for Judgment over against
the warrantors, in case Judgment be rendered
in favor of plaintiffs."

And on the next day (81st May) there is an
entry of what purports to l>e a fi'nied judgment
of the district court, reciting the decree of the
court above, and also reciting the fact which
for the first time appears, that " the legal rep-
resentatives of Charles Mulbollan have pur-
chased the claims of said Calvits for the sum of
$2,400."

Within the principles laid down, this recital
furnishes at once a state of facts such as, by the
lex hd, amounts to an eviction, and gives a
right of action upon the warranty.

See cases before cited, 1 Rob., 862, and 11
R.,897.

The record, however, does not furnish the
date at which the purchase was made. That
it does not do this expressly is certain. That
it does not fix the exact date by implication, is
equally dear.

It is not for us to supply the omission caused
by the silence of the record with respect to
time. It is for the defendant, who relies upon
limitations, to show that we are barred. It is
enough for us to show that at all events on May
81, 1858, we had a cause of action, withoot
being required to prove how long before we
might have had it.

If, then, it appears l^ the record alone that
upon the 81st May, 1858, the litigation upon the
paramount title was brought to a close by final
Judgment, and that upon that day we stood as
purchasers of the paramount claims, with noth-
ing in the record to show that we were such
purchasers long anterior to that time, we sub-
mit that the instruction given by the court be-
low that we were barred by limitations was
erroneous, inasmuch as we commenced one
suit within less than three years from said date,
to wit: on Nov. 8, 1855.

We now proceed to consider the case, as it
may be modified by parol testimony.

The depositions of J. A. Calvit and Judffe
Ogden disclose the fact that the relinquishment
of the paramount claims was made November
14, 1846. and that the purchase was made bv
ThoB. O. Moore, the acting executor of Mul-
hoUan.

Upon this evidence, the attempt is made to
set up the bar of lyiitations against the hetra,
by dating their rignt of action back to the time
when a volutary payment was made by the
executor.

Until adopted by the heirs, the purchase of
Calvit's claims by Moore, although doubtless
made in *' good faith," and as the '* best ar-
rangement that could be made for the estate,"

«4 U. 8.

^860.

Flowbbs v. FOBmCAH.

181^148

jret, nol being within the feoope of iiis ezecu-
torial powen, was no more the act of the heirs
than if made by tin entire stranger for purposes
-of 8peculatik>n.

Bruih y. Ware, 16 Pet., d8-lll; Ck)de La..
-art. 1(168; Anderton'B' EooeeutovB v. Afider9fm'$
Mrin, 10 La., 86.

The doctrine is well settled, that an action
upon warran^ may be brought b^ the ezecu-
tors, providea the breach be during the life-
time of the testator; but if the breach occur
after his death, the action can only be main-
tained by the heirs.

1 Pars. Cont. . 109 ; EawUngs ▼. Adami, 7 Md. ,
49.

It is plain, therefore, that no right of action
aocruea upon this contract of warranty, until
May 81, 1868. The executors could not have
^sued; 1st, because the pajrmeot by them did
not constitute an eviction at all, they not being
authorized to represent the land ; and 2d, be-
-cause, even if such payment did constitute
-an eviction, the breach was npt until after the
death of Mulhollan, the warrantee, in which
•case the heirs alone could maintain an action.

Nor could the heirs have sued, for they had
not then ratified the voluntary and gratuitous
■act of the executors, and made the payment
their own.

There being no parties competent to sue,
limitations could not run.

PUhndek V. SeutaU, 4 Harr. <& J., 898.

But if the preceding views be erroneous,
and it should be held that the breach of war-
ranty occurred Nov. 14, 1846, by the executor's
purchase of the paramount claims, it still by
no means follows, of necessity, that limitations
•commenced to run from that time.

The circumstances of this case are peculiar.
^The paramount claim was in process of litiga-
tion from 1888 to 1868. During the whole of
^ese fifteen years the rights of all parties were
lield in suspense. The (Mcision of Uie Supreme
-Court in 1846 was in no sense a final determi-
nation of the controversy. On the contrary, it
^ras in terms merely prospective and interlocu-
tory.

That such decree was not final, see P&rki'M
V. Fowmiquet, 6 How., 208.

That it was preparatory only, see Tlunnp9(m
V. Mylne, 4 La. Ann., 211.

During all the intervening time up to May
<31, 1858, the paramount claims were exposed
to the contingent and unliquidated offsets and
abatements indicated by the decision of the
4ippellate court.

During all this time, also, that the suit re-
naained open, it was not only the right, but it
•was the dutv of Keller & Foreman to have
intervened, either in proper person or by at-
torney, for the protection oi the threatened
title which it was within the scope of their
obligation, not merely to "warrant," but also
actively to "defend.'^

These facts, we submit, clearly bring this
•<»8e within the principle laid down by this
-court in MimtgofMry v. Hemandm^ 12 Wheat.,
129, affirming the judgment of the Supreme
Oourt of Louisiana in 2 New Ser., 422.

See, also. SaUOury v. Elaek, 6 H. & J., 298;

WaUom' V. Bradley, 8 Pick., 261; FrankUn v.

Ikpriest, 18 Orat., 267; Kingy. Baker, 29 Pa.,

^00; MarUn v. Ihtneen, 62 U.S. (21 How.), 894.

^ee 28 How.

JAmts. Qwufge W. Brown and F. W.
BvowBff Jr.9 for the defendant in error:

The power of attorney, which is the cause of
action in this case, is a simple contract under
8^1. It does not, in terms, authorize the attor-
ney to execute a deed with the general warranty,
and was not intended to do so by the constit-
uents, but that question is not now before this
court. The defendant in error will contend
that the instruction of the circuit court was
correct.

I. The cause of action of the plaintiff in
error,^ if any he had, accrued, and limitations
began to run Nov. 14, 1846. when payment
was made by the executor of Mulhollan in be-
half of the estate. More than three vears had
elapsed before the bringing of this action. Nov.
8, i866,and the claim u baned by the Acts of
Limitation of the State of Maryland of 1716,
ch. 28, sec. 2, and 1818, ch. 216, sec. 1.

Beatty's Admrs, v. Bumes* Admrs,, 8
Cranch, 98; Murdoch v. Winter, 1 H. & G.,
471; Frey v. Kirk, 4 GiU & J., 609; 8prague
V. Baker, 17 Mass.. 291; Lands v. Bedd, 11
N. H., 74; Day v. Chiem, 10 Wheat., 452; 2
Greenl. Ev., sec. 244; Foote v. Burnet, 10
Ohio, 380.

II. The judgment of the District Court of the
State of Louisiana, in favor of Charles H.
Flower and Alice Flower aflrainst Christopher
Keller and Francis Forman for $860, with
interest from Nov. 14, 1846, the date of tiie
payment by MulhoUan's executor, is void, the
court below having no jurisdiction in the case,
the defendants never having been served with
process, and never having mid notice or knowl-
edge of the case. The judgment against Kel-
ler is by a wrong name. Bis true name was.
Christian, not Christopher, Keller, and he was
in fact, dead at the time when it was rendered,
although that fact does not appear by the
record. But the plaintiff in error does not sue
on this judgment nor claim thereunder. If
the judgment were valid, his cause of action
would be merged therein, and suit would have
to be brought on the Judgment, and the form
of action would be debt, not assumpsit.

Harris v. E^ardeman, 14 How., 889.

Mr, Justice Wayne delivered the opinion of
the court:

We shall cite such facts in this record as are
necessary to s\ow the relations and obligations
of the parties to it, under the laws of the State
of Louisiana, and in that of the Circuit Court
of the United States for the District of Mary-
land, from which it has been brought here by
writ of error.

The plaintiffs are the heirs and universal
legatees of Charles Mulhollan, to whom Keller
& Foreman sold a tract of land, with an obli-
gation of warranty. On the same day that the
conveyance was executed to MulholUui, he con-
veyed by deed a part of the land to Reuben
Carnal, with a like clause of general warranty.

Afterwards, William J. Calvit, Elizabeth G.
Calvit, James A. Calvit and Coleman W. Cal-
vit, filed their petition in the District Court for
the Parish of Rapides, alleging that they were
the heirs of their mother, the lawful wife of
their father, Anthony Calvit, and tiiat they
were entitled to half of the land, as it had been

19^149

8XJI;|UDCB OOUBT OfV TBS UVITBD StATBB.

Dbc. Tbbit^

purchased by their father during their mother's
coverture 'wiUi him, which superinduced be*
tween them a community of acquests or gains
— ^there haying been by them no stipulation to
the contrary. And they allege, also, that their
father, as their natural tutor, had s^ld the land,
for a part of which they petitioned, while they
were minors, in violation of their rights.

They further state, that Charles Mulhollan
and Reuben Carnal were in possession of the
land, and ask that one half of it might be ad-
Judged to them, as the heirs of their mother.

Ming thus brouffht into court, Mulhollan
and Carnal filed thdr answers. Each deny the
allegations of the plaintiffs — Carnal citinff Mul-
holhui into court as his warrantor; and Mul-
hollan alleges in his answer, that he had pur-
chased the land from Keller and Foreman,
with a general warranty. He asks that they
might be cited, to defend him in his title and
possession; and that, as fhey were absentees
from the State of Liouisiana, he prayed for the
appointment of curators ad hoc, to represent
them in the case.

George E. Waters was designated by the
court as their curator; and, upon being sum-
moned, appeared in that relation, and, aasum-
ing to be the atttomey of Keller & Foreman,
filed an answer for them. Keller & Foreman,
however, never had any knowledge of the suit
nor any notice of the appointment of Waters as
curator.

Waters, in his answer, cited in warranty the
legal representatives of A. J. Davis, deociwed,
from whom Keller & Foreman had bought the
land.

The legal representatives of Davis appeared,
by George Purvis, their curator, and in their
turn cite in warranty Anthony Calvit, their an-
ceetor*s vendor, who was the father of the

Eiaintiff, by whom the land had been sold to
^avis. Anthony Calvit appeared by attorney,
denying the petitioner's allegations.

After several continuances, the case was
brought to trial in the district court, and Judg-
ment was entered for the defendants. The
plaintifr carried it by appeal to the Supreme
Court of Louisiana. The Judgment of the court
below was reversed, on the 26th November,
1845. That court decided that the two young-
est petitioners, James and Coleman Calvit, were
each entitled to one undivided eighth of the land
in controversy, but that William J. Calvit and
ElizabeUi G. Calvit were excluded from recov-
ering, on account of the prescription of ten and
twenty years, which Mulhollan had pleaded in
his answer. The court then remanded the
cause to thexiistrict court, for further proceed-
ings on the question of improvements, costs
and profits, and of damages between the war-
rantors.

Afterwards, on a rehearing, tlie Supreme
Court directed a further inquiiy to be made, for
the purpose of asoertaininff whether the price
received for the land by the father and tutor
of the plaintiff, had been applied to the pay-
ment of the debts of the communit^r of their
father and mother; " and it ordered, if any of
it had been, that James and Coleman Oilvit
should contribute in proportion to their rights
in the land ; and that, in the mean time, no writ
of possession shotdd issue until they had paid

406

the amount which Che court bdow mig^t deter-
mine to be due by them."

After the rendition of the Supreme Court's,
decree, Cliarles Mulhollan died. His will wa»
admitted to probate on the 11th July, 1846.
On the same day his death was suggested, and
an order was passed to renew the suit in the
names of his legal representatives. Three days
afterwards, Thomas O. Moore, the executor of
Mulhollan, paid to James and Coleman Calvit
$d,400 for a relinquishment of their claima to-
tiie land in controversy, and of all their rigfata.
in the Judgment which had been rendered in
their favor.

No further proceedings were had in the suit
from the 11th November, 1846, to the dOtb
May, 1868, when the plaintiffs in this suit
made themselves parties, as hein and universal
le^tees of their uncle, Charles Mulhollan, the
oneinal defendant. They adopted his answers-
ana defenses, and ask for Judgment against his-
warrantors, Keller & Foreman, which was-
given on the following day, in the district
court, to which the cause had been remanded,
for those purposes only heretofore stated.

Such have been the relations of the parties
named in the reoord,in the District and Suprane
Court of the State of Louisiana. Whatever was
the liability of Keller & Foreman, as warrantors-
of Mulhollan, they never were subjected to the
Jurisdiction of the district court by any valid pro-
ceeding from it, to enable that court to carry
that liability into a Judgment in favor of Mul-
hollan, their vendee, or in favor of hip repre-
sentatives, Charles and Alice Flowers.

When Mulhollan answered the petition of the
Calvits, and asked that Keller & Foremao
should be cited into court as his warrantors, no-
citation for that purpose was served upon them
to do so. One was issued for and served upon
Waters, to represent them as curator ad hoe; but
that was insufficient to give to the district court
Jurisdiction to pronounce Judgment against
them, though that court did do sa Hence it
is that this action of tuntmptU was instituted
to recover damages alleged to have been sus-
tained upon a breach of the warranty of Keller
& Foreman to Mulhollan.

In the declaration in this action, it is recited
that Keller & Foreman had conveyed to Mul-
hollan a tract of land, with warranty, and that
the Supreme Court had adjudged that James,
and Coleman Calvit were each entitled to an
undivided eighth of the same. They were de-
clared to have entered into the same, and evicted
Mulhollan from it; in consequence of which,
Mulhollan, to regain his possession, had paid to
James and Coleman Calvit $2,400 for the re-
linquishment of their claims to the land. To
this action, the defendant pleaded lumamump-
rit; and it was agreed in writing, by the counsel
in the cause, that, under such issue, all errors
in pleading should be mutually waived, and
that the defendant was to be permitted, under
it, to rely upon the Statute of Limitations.

Upon the trial of the case, that point was
urged . The Statutes of Maryland of the years
1716, ch. 28, and 1816, ch. 216, enUOed, "Ads-
to avoid suits at law," were insisted upon, asoon-
stituUng a bar to the recovery of the plaintiffs.
Sudi was the instruction given by the court.

There is no error in the instruction. Moie

64 U.S.

1858.

Flowsbb y. Fobvkan.

1«^149

than three years had elapsed after their right
of action had accrued, before the plaintiffs
brouffht their suit. Their uncle had been ]u-
diciiuly declared not to be entitled to a part of
the land by the decree of the Supreme Court.
That of itself was an eviction under the Law of
Louisiana, though the court postponed giving
a writ of possession to the parties in whose fa-
vor its decree was made, for the purpose of
having certain points ascertained in which all
the parties to the cause were interested — no one
of them more so than Mulhollan himself. The
date of the Supreme Court's decree in favor of
the two Calvits, is26th November. 1846. shortly
after Mulhollan died. The district court had
not then adjudged those points for which the
case had been remanded to it

Before that was done by the court, and soon
after Mulhollan's death, his acting executor,
Moore, on the 14th November, 1§46. bought
from the two Calvits their claim to that part of
the land which had been decreed to them by
the Supreme Court This itself was an eviction,
though the Supreme Court, in deciding upon
these rights to the land, had withheld from the
Calvits a writ of possession. It is not necessary,
to constitute an eviction, that the purchaser of
land should be actually dispossessed. 11 Rob.
La., 8tf7. It was also ruled, in the same case,
that an eviction may take place when the vend-
ee continues to hold tiie property under a dif-
ferent title from that transferred to him by his
▼endor. In this instance. Mulhollan's repre-
sentatives held the title to a part of the land,
originally bought by him from Davis as a whole,
by the purchase of James and Coleman Calvit's
undivided eighth.

The same conclusions had been previously
ruled by the same court in Landry v. Oamet,
1 Rob. La.. 862. The court's language is: " It
is true that, by the authorities to which we have
been referred, the doctrine is well established,
that, in order to constitute an eviction, it is not
absolutely necessary that the purchaser should
be actually dispossessed. That eviction takes
place, although the purchaser continues to hold
the property, if it be under a title which is not
that transferred to him by his vendor, as if he
should extend the property, or should acquire
it by purchase from the true owner." Pothier,
Yente. No. 96; Troplongr, Vente, No. 415;
Touiller, Vol. XVI., conrmuation by Duver-
gier. Vol. I. . Nos. 809. 818. Other cases in the
Louisiana Reports have the same conclusions.
but we do not think it necessary to cite tihem.
The rulings in 1 and 11 Robinson announce it
to be the uncontested doctrine in the Louisiana
courts, that actual dispossession is not neces-
sary to constitute an eviction, and that, if the
purchaser holds under another title than that
of his vendee, an eviction may take place.
Those decisions cover the case in hand in both
particulars, and they show that the purchaser
of the land had suffered an eviction by the de-
cree of the Supreme Court, in the meaning of
that term in the law of Louisiana, thouip a
writ of possession had not been issued. But if
that was doubtful, it is certain that the evic-
tion was accomplished when the executor of
Mulhollan bought, for the benefit of of his tes-
tator's estate, the claim to the land which
James and Coleman Calvit had acquired.

8ee 88 How.

Mulhollan, by his will, granted to his execu-
tors, immediately on his death, full and entire
seisin and possession of all his estate, to hold
and manage the same until all the l^^ies given
bv him were paid over and fullv discharged.
The signification of a delivery of seisin to an
executor will be found in articles 1652. 1664,
1666. 1667. of the Civil Code, and in 85 of Re-
vised Statutes, 8. These articles provide that
a testator mav give the seisin of the whole or
of a part of his estate to his executor, accord-
ingly as he may express himself. The seisin
usually continues for a year and a day, but
may lie prolonged by an act of the court, and
may be terminated whenever the heirs shall de-
liver to the executor a sum sufficient to pay the
movable legacies. The seisin of the executor
is distinct from and paramount to the seisin
which the law vested in the heir, immediately
on the death of his ancestor, and the heir can
onlv deprive the executor of it hj providing se-
cunty for the performance of his obligations.
The executor represented the reception, in so
far as respects creditors and legatee. Bird v.
Jones, 5 La. Ann., 645. When the testament-
ary executor submitted to the title of the
Calvits, and paid them for it, that was an evic-
tion, which gave to him a right of action in be-
half of the succession against the warrantors of
his testator. His right of action passed to the
heirs of Mulhollan when he delivered the suc-
cession to them, or whenever it came to their
hands by due course of law. It was delivered
to them, and the executor's seisin terminated in
the year 1847. though the precise day does not
appear in the recora. The heirs, upon its ter-
mination, were reinstated in all the rifi:hts
which had been temporarily administered by
the executor. Those rijzhts will be found in
articles 934-986, of the Code. One of the ef-
fects of those rights is to authorize the heir to
institute all the actions which the testator could
have done, to prosecute to a conclusion such as
had been commenced by the testamentary ex-
ecutor, and to commence all actions which he
had failed to institute belonging to the succes-
sion. 15 La. , 527 ; 7 Rob. La. , 188 ; 2 La. Ann. .
889; 7 La. Ann., 867. In such a suit by the
heirs, the same defenses may be made .which
could have bem applied if the executor's seisin
had been continued. But in this instance,
neither the executor nor the heirs, the plaintiffs
in the suit, took any legal step to carry to a
judgment Mulhollan^ citation of Keller & Fore-
man in warranty in the District Court of the
Parish of Rapides, until the 80th May, 1858,
more than fourteen years after the eviction of
Mulhollan had occurred, and after the rights of
the Calvits had been bought. The heirs now,,
however, seek by this suit in a&aumptit in the
Circuit Court of the United States for the Dis-
trict of Maryland to recover damages froia
Foreman, the survivor of his partner. Keller,
for the failure of thehr warranty to Mulhollan,.
the suit having been commenced between eight
and nine years after their right of action had
accrued. The defendant reltes upon the Stat-
utes of Limitation of Maryland ss his defense to
prevent a recovery. We think it must prevail,
and that the court below, in giving to the jury
such an instruction, oommitt^ no error.

We therefore direct ite judgment to be affirmed^

4a»

167-170

SUFRBlfS Ck>imT OF TBS UnnnD STATB8.

Dbc. Tcbm.

DAVID OGDEN, Appt.,
t.

JOTHAM PARSONS, JOHN A. McGRAW,
JOSHUA ATKINS, EDWIN ATKINS,
AND JOSHUA ATKINS. Jb.

(See S. C, 28 How., 187-170.)

What w a fuU cargo— haw determined.

Where the oharterwparty ooveoants for no speof flo
amount to be received, what was "a full oarso"
under all the droumstances, was a Question which
could be solved only by ezperfenoed ship masters.

At least three competent witnesses of this charac-
ter testify that the ship was loaded as deep as pru-
dence would permit, and both the district and cir-
cuit courts were of the same opinion, and this court
•does not find that they have erred.

JSubmiOed Dee. 21, 1859. Bedded Jan. 3, 1860.

APPEAL from the Circuit Court of the Unit-
ed States for the Southern District of New
York.

The libel in this case was filed in the District
Court of the United States for the Southern
Disirict of New York, by the appellees, against
the appellant, in personam, to recover damages
for an alleged breach of a charter-party of the
«hip Hemisphere, which was hired by the ap-
pellant

The libel claimed |4,950, including $700 for
demurrage and interest. The district court
•entered a decree for the libelants for the whole
•amount of the charter money, less certain al-
lowances, but excluding anything for demur-
rage. The final decree was or $5,159.84, with
•costs.

On appeal by the respondents to the circuit
•court, this decree was reduced $1,200, and af-
firmed as to the remainder; whereupon the re-
spondent took an an appeal to this court.

A further statement of the case appears in
the opinion of the court

Messrs, Owen and Voset for appellant.

Messrs. S. H. Parson and C. Donohae,

for appellees:

An interested witness is incompetent in ad-
miralty.

The Independence, 3 Curt. C. C, 850.

Where a witness is called who appears on the
record to be interested, and he is objected to,
he cannot be sworn tmtil that interest is re-
'voked

Eoans v. Orap, 1 Mart. N. 8., 709; MoU v.
Hieks, 1 Cow., 518; 1 Atk. Vt . 71 ; 4 Phil. Ev.,
160; 1 Mood. & M.. sees. 819, 820.

Mr. Justiee Grier delivered the opinion of
the court:

The libelants let the ship Hemisphere by
<;harter-party to David Ogden on a voyage from
Liverpool to New York. The covenants which
are the subject of this litigation are, briefly, as
follows: "Ogden. to furnish a full cargo of
general merdiandise, and not exceeding 518
passengers, to pay £1,500 for the use of the
ship, to have fifteen running lay days, and for
«veiT day's detention beyona that to pay $100."

The libel demands $700 as demurrage for
seven days, and for a balance yet due on the
contract

410

The answer denies any liability for demur-
rage, admits that the whole amount of £1,500
has not been paid, and charges libelants with
breaches of their charter-party, and damages
in consequence thereof, exceeding the balance
claimed bv them.

1st. '^tiecaiue that they carelessly, wrong-
fully, and contrary to usage, stowed portiooa
of the cargo where it ought not to have been
stowed," and thereby deprived respondent **of
the full and lawful use of the ship,*' by having
room for only 850 passengers instead of 518.

2d. That libelants would not take and receive
" a full cargo of general merchandise."

The distnct court decided against the charge
for demurrage, but allowed the respondent no
damages for the alleged breaches of the charter-
party oy libelants.

On appeal by respondent to the circuit court,
the sum of $1,200 was allowed him by that
court for the breach first mentioned with regard
to the number of passengers received.

From this decree the respondent has appealed
to this court.

As the libelants have not appealed from the
decree of either the district or circuit court, the
only question now to be considered is. whether
the respondent has shown himself entitled to
more damages than were allowed him by the
circuit court.

The Judge of the circuit court being of opin-
ion, from the evidence, that the cargo might
and ought to have been stowed so as to admit
the fullnumber of passengers (518) made a cal-
culation from admitted data of the damage to
respondent oo that account, without refming
the case again to a master, and deducted the
sum of $t,dOO from the amount of the decree
of the district court. Of this the appellant does
not complain, but insists that the owners had
refused to receive a ** full cargo of merchan-
dise."

The registered tonnage of the ship was 1 ,090
tons; the cargo of genend merchandise received
was 1,297 tons.

The charty-party covenants for no specific
amount to oe received. What was '*a fall
cargo" under all the circumstances, and whether
the ship could have been loaded to a greater
depth than 18 feet 10 inches with safely to the
lives of the passensers, was a question which
could be solved only by experienced ship mas-
ters. Where experts are introduced to testify
as to opinions on matters peculiar to their art
or trade, there is usually some conflict in their
testimony. What was a full cargo for thia ahip
to carry with safety was not a fact which could
be settled by any rule of law or mathematical
computation, and the court must necessarily
rely upon the opinions of those who have ex-
perience, skill and Judgment in such matters.
At least three competent witnesses of this char-
acter testify that the ship was loaded as deep
as prudence would permit, under all the cir-
cumstances. Both the district and circuit court
were of the same opinion, and we do not find in
the evidence anything to convince us that they
have erred.

Let the decree of the circuit court be affirmed,
foith costs.

Cited— 99tT.8„a56;»N.T., 448.

e4u.&

1^^.

Qbidlbt y. Wtkakt.

60(MK)6

RUEL G. ORIDLEY.CLARISSA H. BESBE,
SARA.H P. SNYDER and CHARLES

SNYDER ET AL., AppU.,

«.

DAVID WYNANT.

(See 8. Cm » How., 600-608.)

Married woman a» truitee — may execute a power
itt&hout her husband — independent equUy.when
not affected by prior traneaetione.

There is no Incapacity in a married woman to be-
oom^ a trustee, and to exercise the le|ral Judgment
and discretion belonfflng to that character.

A married woman may execute a power without
the co-operation of her husband.

Within the scope of her authority, a court of equi-
ty will sustain her acts, and require those whose co-
operation is necessary to confirm them.

Where a person lias an independent equity, aris-
ing from his purchase from persons holalng> the re-
lation of trustee and cettui que trust, in orderto en-
force Ills right, there is no need for any inquiry into
the consideration or motives that operated upon
such parties, to assume their relation of trustee and
r««euiou6 tru«t. In such case, equity does not refuse
to lend its a^islstanoe. MoBlair v. Gibbes, 68 V, S.
<17 How.), 233, affirmed.

SubmiUed Dee. 19, 1869, Decided Jan. S, 1860.

APPEAL from the District Court of the Unit-
ed Stales for the Northern District of Iowa.

The bill in this case was filed in the court
below, by the appbllees, to enjoin an action at
law which was pending in said court against
him.

The court below decreed a perpetual injunc-
tion in favor of the complainant, and that the de-
fendants convey l^e premises in dispute to him,
^whereupon the defendants took an appeal to
this court.

A further statement of the case appears in
the opinion of the court.

Mr. Jaaiefl Onu&t, for appellants.

Mr. Plait Snitht for appellee.

The argument of counsel, being largely de-
voted to tne facts, is not here given.

Mr. Justice Caaipbell delivered the opinion
of the court:

The appellee filed this bill to enjoin the ap-
pelisota from prosecuting a suit to recover a
parcel of land in his possession, and to quiet
Ills title ainiinst their claim as heirs at law of
Sarah A. Blakely, deceased. He charges in his
bill that he purchased the land from William
B. Beebe, and paid to him the purchase monev,
and that Mrs. Blakely made him a deed at the
request of Beebe, who was her son-in-law, and
for whose use and benefit it had been conveyed
to her with her consent At the time of her
conveyance she was a married woman, and the
bill avers that by error, ienorance, or oversight,
her husband failed to Join in her deed.

The defendants adnut that they claim as heir-
at law of Mrs. Blakely, and insist that she was
under a disability to convey land without the
consent of her husband.

They deny that she held the land in trust for
Beebe, but insist that even if that were the case
the trust was illegal, for that Beebe was an in-
solvent debtor, and the sole design of such a
conveyance was to defraud and delay his cred-
itors.

They object that Beebe is a necessary party
10 the cause. The district court granted relief
according to the prayer o( the bill. The testi-

See 28 How.

mony suflldently establishes the case made by
the bill. It appears that Beebe purchased the
land from the tenants in fee simple, and that it
was conveyed to Mrs. Blakely by his directions,
and that this was done because he was in debt,
and did not desire the exposure of his property.

That he sold the land to the appellee, and
that Mrs. Blakely executed to him titles with-
out Joinine her husband in the conveyance.
The question arises, whether the heirs at law
of Mrs. Blakely, can contest the validity of her
conveyance. There is no incapacity in a mar-
ried woman to become a tnistee, and to exer-
cise the legal Judgment and discretion belonging
to that character. A trustee in equity is re-
garded in the light of an instrument or agent
for the eeaiui que truet^ and the authority con-
fided to him is in the nature of a power. It has
long been settled that a married woman may
execute a power without the co-operalion of her
husband. Sug. on Pow., 181. Some doubt
has been expr^sed whether, at law, a married
woman could convey an estate vested in her in
trust, and inconveniences have been suggested
as arising from her asserted incapacity to make
assurances which a court of law would recog-
nize as valid. And it has been determined that
she could not defeat a right of her husband, or
impose a legal responsibility upon him. by her
unassisted act. Lewen on Trusts and Trustees,
pp. 89, 90; Su^. on Pow., 192, i96; 2 Spence,
£q., 81. But within the scope of her authority
a court of equity will sustain her acts, and re-
quire those whose co-operation is necessary to
confirm them. In the present instance, her
deed was within the scope of her authority and
duty. She did not defeat an estate to which
her husband was equitably entitled, nor does
he claim adversely to it. The complainants
are her own children, her heira at law, who are
seeking to devest of his estate a bona fide pur-
chaser, and to acquire one for themselves— one
to which their mother had no claim in eauity
or good conscience. Nor can the appellants
avail themselves of the illegality of the consid-
eration on which their mother became the trust-
ee for Beebe. The trust has not only been con-
stituted, but carried into execution. The ap-
pellee is not a mere volunteer seeking to en-
force its terms, nor does his equity depend upon
the validity of the trust for its support. He
has an independent equity, arising from his pur-
chase from persons professing to hold a legal
relation to each other and to Uie subject of the
contract, and to enforce his right there is no
need for any inquiry into the consideration or
motives that operated upon these parties to as-
sume their relation of the trustee and ee^ui que
trust. In such a case, equity does not refuse to
lend its assistance.

MeBlair v. Oibbes, 17 How., 282.

The objection that Beebe is a necessary party
to the bill cannot be supported. Beebe hais not
claimed adversely to the title of the appellee.
The legal title has never been invested in- him,
nor do the appellants recognize any privity or
connection wiUi him. The^ claim the property
discharged of any equity either in his favor or
that of the appellee.

Upon the whole eaee, the opinion of the court ii
infatoT of the appellee, and the decree of the die-
tnct court i» affirmed.

Clted-7 Shaw., 684.

411

00a-M5: 28^46

SUFBBMB OOOBX OF THB UVIXBD STATSS.

Deo. Tbbm,

RUEL GRIDLEY. CLARISSA H. BEEBE.
SARAH P. SNTDER and CHARLES
SNYDER E-^ al!, AppU.,

EDWIN S. WESTBROOK and JAMES P.

GUAGER.

(See S. C, 28 How.. 608-605.)

Deed, by attorney in fact of trustee— Oridley v,
Wynant, ante, ajffirmsd.

Where lands were purchased hy one with his own
money, and the titles were made for his own use to
a married woman, under authority from her, and
subsequently he sold them, and under power of
attorney from such married woman executed a
deed to the purchaser, such deed was h«ld £rood
against her heirs. Held, also, that there Is no ma^
terial variation between this cause and that of the
same Gridley v. Wynant, ante^ p. 411, just decided.

The authority or that case affirmed.

Submitted Dec. 19, 1859, Decided Jan, S, 1860.

APPEAL from the District Court of the Unit-
ed Stales for the Northern District of
Iowa.

The history of the case and a statement of the
facta appear in the opinion of the court. See,
also, the preceding case.

Mr. James Grant* for appellants.

Messrs. T. S. Wilson and Plait Smitht

for appellees.

Mr. Justice Campbell delivered the opinion
of the court:

This suit was commenced in the District
Court of Jackson County, Iowa, by the appel-
lees, under articles 2025 .and 2026 of the Code
of Inwa« to quiet their title and possession to
certain lands in that county against the impend-
ing and adverse claim of the appellants, the
heirs at law of Sarah A. Blakelv, deceased.

The appellants appeared, and answered the
petition, and procured the removal of the cause
to the District Court of the United States for
Iowa, under the 12th section of the Judiciary
Act of September, 1789. 1 Stat, at L.. 78.
After the removal of the suit to the district
court, the appellants commenced a cross suit,
aaserting therein their own title to the lands in
controversy, and praying for a decree of deliv-
ery of the possession to them, and an account
of the mesne profits. The original and cross
suit were '* consolidated " on the motion of the
appellants, and were heard as one suit.

The proceedings in these causes seem to have
been framed upon the course of practice pre-
vailing under the Code of Iowa; and we have
found some difficulty in entertaining the suit,
as not conforming to the mode of proceeding
prescribed for courts, of the United States in
chancery proceedings: but as we are enabled to
ascertain, from the plradings and proofs, the
matter in dispute between the parties, we shall
proceed to adjudicate the questions they pre-
sent.

The facts disclosed by the proofs show that
William B. Beebe, an insolvent debtor, in order
to carry on business without interruption, made
purchases and sales of property on his own ac-
count, in Iowa, but under the shelter of the
name of Sarah A. Blakely, the mother of his
wife, a resident of Missouri. To enable him to
do so with facility, he procured from her pow-

418

era of attorney, which conferred authority for
that purpose.

The land described in the petitioji was pur-
chased by Beebe with his own money, and the
titles were made for his use to Mrs. Blakely.
Subsequently he sold them to one of the partiea
to the cross suit (Mr. Wells) for a valuable con-
sideration, and, as attorney in fact for Mrs.
Blakely, executed to her a deed; and the appel-
lees, Westbrook and Guager, claim as purchas-
ers from this person.

At the time of the execution of the deed of
Mra. Blakely, and of her death, she was a
feme covert. The appellants insist, that the
conveyance to Mrs. Wells in the name of Mrs.
Blakely is void, and that they are entitled to
hold the lands as heira at law.

We discover no material variation between
the principles applicable in this cause and that
of the same appellants and Wynant, which we
have Just decided.

Upon the authority of that ease, u>e determine
that the decree of the district court must be af-
firmed.

CHARLES RICHARDSON kt al., Chiim
of the Barque Tangier, Appis.,

«.

DAVID GODDARD bt al.

(See S. C, 88 How., 28-45.)

Delivery by carrier, what is — where consignee
must receive good»— valid delivery on whirf —
Qoodjs not accepted, duty of carrier as to—Uabili'
tyfor loss by fire — delivery on holiday — custom^
as controlling.

Where tke oontraot is to carry bv sea, from port
to port., an actual or manual tradition of the irooda
Into the poisesslon of the consiflrnee, or at his ware-
house, Is not required in order to discharge the
carrier from his liability as such.

The carrier by water shall carry from port to
port, or from wnarf to wharf.

He is not bound to deliver at the warehouse of
the ooDsigrnee ; it is the duty of the oonslgiiee to
receive the goods out of the ship or on the wharf.

But to constitute a valid delivery on the wharf,
the carrier should give due and reasonable notice
to the oonsigiiee, so as to afford him a fair oppor^
tunity of providing suitable means to remove the
goods, or put them under proper care and custody.

Such a delivery, to be effectual, should not onfv
be at the proper place, which is usually the wHarf^
but at a proper time.

When goods are not accepted by the consignee^
the carrier should put them in a place of safety ;
and when he has so done, he is no longer liable on
his contract of affreightment.

Carriers are not liable, on their contract of af •
freightment, for the loss by fire of goods, where
they delivered the goods at the place chosen by the
consignee, and where he agreed to reoeive them
and did receive a large portion of them, after full
and fair notice.

Where tne goods were deposited for the con-
aignees in proper order and condition, at mid-day,
on a week day, in good weather; this oonstttuted
a good delivery.

Carrier has a right to dischaige cargo on a vc»lun-
tary holiday, such as a day appointed by the gover-

NOTB.— DeliDery by common carrier hu VDoter,
A carrier by water must convey goods firom port
to port or from wharf to wharf. This Is the gen-
eral commercial usage. The consignee must reoeive
the goods at the wharf or from the ship. A deliv-
ery on the usual wharf will discharge the master,
provided he gives notice to the consignee that he
may come and take them. Hyde v. Trmit, Ac, Nav.
Co., 5 Term R.,897 ; Chlokedng v. Fowler, 4Piok.,9n:
Cope V. Cordover, 1 Kawle, 90 ; Ostrander v. Brown,
15 Johns., 80 ; Dibble v. Morgan, 1 Woods, 406 ; Tlie

64 U. 8*

1869.

Richardson y. Oopdakd.

28-45

nor for faatiiiff and prayer, and to demand the ac-
ceptance of hto freight by the conaiffneeon that

There Is no law of Maaaachuaetta which forbids
the transaction of business on that day.

There is no general custom or usace which for-
"bids the unlading of vessels, and a tender of freight
to the constgnee, on the day set apart for a church
festival, fast, or holiday.

There is no special custom in the port of Boston
which prohibits the carrier from unlading his ves-
«el on such a day, and compels him to observe it as
A holiday.

Arjmed Dee. SO, 1869, and Jan, 4, 1860, De-
cided Jan, IS, 1860,

APPEAL from the Circuit Court of the Unit-
ed States for the District of Massachusetts.

The libel in this case was filed in the District
Court of the United States for the District of
Massachusetts, by the appellees, on a contract
of affreightment, to recover damages resulting
from an alleged failure to deliver a part of a
•consignment of cotton.

The district court entered a decree dismissing
the libel.

The circuit court,on appeal, reversed this de-
cree and entered a decree in favor of the libel-
ants, whereupon the claimants took an appeal
to this court.

A further statement of the case appears in the
opinion of the court.

Meeert, B. Choate and O. T. Shepley*

for appellants:

The question may be presented under two
aspects.

First. Assuming Thursday, April 10, to have
l)een an ordinary working day, can the libel be
maintain^ T

Second. If not, then does the fact that Thurs-
dav was a fast day maintidn it?

1. Upon the first assumption that Thursday
is to be deemed an ordinary working day, the
respondents established a full defense upon this
proposition; that before the destruction of the
cotton by accidental fire, and before one o'clock
on Thursday, April 10, they had unladen it

upon a suitable wharf, and one selected by the
libelants, and made it ready for delivery under
a full and reasonable notice to the libelants,
thus legally tendering a delivery.

This Involves two propositions.

First. That in point of law, such an unlading
after such a notice, is such a delivery as termi-
nates the liability of the carrier, as carrier.

Second. That, in point of fact, they had no
unladen on such notice.

The propositions of law may be thus stated :

II. The unlading of goods upon a suit-
able wharf and at a usual time for unlading
after reasonable notice to the consignee, accom-
panied with a readiness and present ability to
deliver, is such a tender of delivery as discharges
the ship owner from his liability as carriier.

Story, Bail., sec. 545; 2d Kent's Com., 6th
ed., 604, and cases in note; Norway Plains Co.
V. Boston and Maine R R. Co., \ Grav, 271 ;
Cope V. Cordofoa, 1 Rawle, 203; Hyde v.' Trent
and Mersey Na^. Co., 5 T. R, 8^9; Hdrman v.
Clarke, 4 Camp., 160-161; Ooold v. Chajdn, 10
Barb.. 612; Oarude v. Trent and Mersey Nav.
Co., 4 T. R.. 581; Thomas v. The Boston db
Prov, R, R. Co., 10 Met., 472; FMy. Newton,
1 Den., 45; PoweU v. Myers, 26 Wend., 591,
Ang. Carr., sec. 818.

The case of OaMffe v. Boume,A: Bing. N.C.,
814, S.C., 8Man. &Gr., 648, is not in conflict,
for that was a case of landing without anynotice
whatever.

III. The law, as thus completely established,
rests upon this excellent reason: that if, by
the universal usage, the ship owner ceases to
carnr at the whuf , and does not truck the
goods to the owner,and the owner himself con-
veys them from the wharf, the liability of the
Cfurrier ceases when and where the duty to carry
ceases; and it is the universal evidence in this
cause, and is now judicially known to the court,
that by uniform usage the ship owner, in no
form and by no vehicle, ever carries beyond
the wharf.

Tybee, 1 Woods, 868 ; Oibson v. Culver, 17/ Wend.,
id5; Sbenk v. PhiUu, &o., Co.jj0p Pa. St., 100 ; Weet^
<emT. Co. v. Haw ley, 1 Daly, 897 ; Solomon v. Phila.,
■&C.J Co., 2 Daly, 104.

lie must deliver, within a reasonable time after
the arrival of the ship. The circumstances of each
<SBB6 determine what is a reasonable time. Hand
T. Baynep, 4 Whart. 804 ; Broadwell v. Butler, 6 Mc-
liean, 2B6 ; 8. C, 1 Kewb., 171 ; Gerhard v. Neese. 86
Tex., «B; Favor v. PhUbrick, 6 N. H., 868 ; Nudd v.
Wells, 11 Wis., 407 ; Ward v. N. Y., ftc, R. R. Co., 47
N. T., SO; Parsons v. Hardy, 14 Wend., 216; Chit-
Uffe V. Bourne, 4 Bing. N. C, 314.

Where the consisrnee refused to receive the cargo
At the port of destination, the master was bound to
land it at the place deeiffnated, and store it for the
benefit of the shippers, it not being of a perishable
naturoiand could not carry it to another port nor
sell it. The same is true if the consignee Is dead, ab-
eent, or cannot be found. Arthur v. The Cassius, 2
Story, 81 ; Illinois R. R. Co. v. Friend, 64 111.. 806:
Fenner v. Buf. ft L. R. R. Co., 44 N. Y., 606; Mayell
V. Potter, 8 Johns. Cas., 871 ; Cope v. Cordova, 1
Bawle, 208: Stephenson v. Hart, 4 Bing., 476; The
Bddy. 72 U. 8. (iTWaU.), 481.

If the goods, on the arrival of the ship, are put on
txMund a lighter, and the owner takes the custody
of them before they are landed, the master is dis-
<duuved. Strong v. Natally, 4 Bos. ft P., 16.

Goods cannot be abandoned upon the wharf. If
this Is done, carrier is responsible to the owner for
their loss or injury* Rowland v. Miln, 2 Hilt., 160 :
McAodrew v. Whitlock, 62 N. Y., 40: Aff'g 2
3ween3*, 6;^

There must be notice to the consignee. The VUle
4e Paris, 8 lien., 277.

If delivery by a common carrier Is made to a

8ee 38 How.

drayman, cartman or any other person not author-
ized by the consignee to receive it, it is at the risk
of the carrier. Dean v. Vaccaro. 2 Head, 488; Sul-
tana v. Chapnuui. 6 Wis., 454; Williams v. Hollsnd,
22 How.,Pr.(N.Y.), 187: BarUettv. Phila.,82 Mo., 866 ;
The Peytona, 2 Curt., 21 ; Ala., ftc., R. R.Co. v. Kidd,
35 Ala., 200 ; Herman v. Goodrich, 21 Wis., 856.

Delivery after business hours is not good, nor is
the consignee obliged to receive goods on a stormy
day when they would be injured thereby. Biurle v.
White, 6 Whort., 606 ; Hill v. Humphreys, TWatts
ft 8., 128; The Grafton, 1 Blatchf., 178; S. C, Ol-
oott,48.

A delivery must be at a safe and proper place.
Landing heavy goods upon an insufficient wharf
renders the carrier liable if it breaks. The Majestic,
12 N. Y. Leg. Oba., 100.

The mere landing goods on a wharf is not suffi-
cient: there must also be reasonable notice to the
consignee allowing him time to make the usual and
necessary preDarations for receiving the goods.
Salmon Falls Mfg. Co. v. The Tangier, 6 Am. Law
Reg., 604 : The Bfary Washington v. Ayres, 5 Am.
Law Reg. N. S., 092 ; The Eddy, 72 U. S. (5 Wall.), 481.

The consignments must be separated. The Mid-
dlesex, 11 Law Rep. N. S., 14.

Consignee cannot object that goods were placed
on wharf at the usual dinner hour of truoicnien.
Salmon Falls Mfg. Co. v. The Tangier, 1 Clilf., 896.

The master of the ship has a reasonable time to
find out the freight due, but he has no right mean-
time to store goods ut the owner's expense. The
Diadem, 4 Ben.. 247.

The custom of the port, brought to the knowledge
of the parties, may. In the absence of a special con-
tract, vary the rule as to delivery on wharf: The
Tybee, 1 Woods, 868.

41t

38-45

SUPBIUCB CODRT OF TRB UHTTBD t)TATm.

DbO. TSBlff,

lY. The distinction between domestic and
foreign vessels is inapplicable to this case. It
is inapplicable in all cases where the ship or
railroaa does not directly or by trucks carry
beyond the wharf or depot.

jpiuk V. Newton, 1 Den., 45; OMekering y.
Ifbwler, 4 Pick., 871; HempkOl y. Cfteme, 6
Watts & 8., 62.

V. Under special ciroumstances, after the lia-
bility of the carrier, as carrier, has determined,
a duty of bailee as wharehouseman or custodian
may be eo initaiUe or subsequently imposed on
the carrier; but on the facts in thtiB case, if any
such modified duty were imposed upon the
carrier, there was no breach of it, the fire haying
an origin without his fault.

The only question is, was there a landing on
a wharf, usual or assented to, of the libelants'
cotton, separately or accessibly placed, under
notice, before it was burned.

The answer to this question we make in
these three propositions:

1st. The place of delivery was a proper one.
It was on a wharf, usual and selected by the
libelants.

2d. The notices given were sufficient for all,
and for unlading on Thursday, as well as on
previous days.

8d Before the fire the cotton was all unladen
and that of Uie libelants was separated, and so
accessibly placed as to make it the duty of the
consignee to take charge of It.

Each of these propositions seems to be proved
by the testimony in the case.

The next question is, whether the fact that
Thursday was a fast day, rendered the act of
unlading under notice ineffectual to terminate
the curmr's liability.

To show this, it must be made to appear
upon the whole evidence— that is. upon the evi-
dence which the court Judicially possesses or
notices, and upon the evidence given at the
trial-^that it is the universal usage in the port
of Boston not to unlade goods, not liable to in-
jury by weather, upon the forenoon of fast day,
from a vessel whose unladins liad begun and
been interrupted by the ne^ect of the con-
sismee.

The aigument upon which this proposition is
maintained is this:

1. Thunday, April 10, 1856, was, prima
frofUe, a day proper for the discharge of cargo.
The fact that the Governor of Massachusetts
recomends it to be observed as a day of fasting,
humiliation and prayer, cannot be Judicial^
known to this court to render it per m a day im-
proper for the unlading of a half discharged
vessel. That is a mere recommendation ad-
dressed to each man's free will, and which
the respondents were legally at liberty to dis-
regard, and as they did disregard it, all their
rights remain unaffected under the general
law.

2. It must appear, then, to the court upon the
whole evidence, that there is a usage to do no
work like this under circumstances like these,
to wit: the discharging of a half discharged
cargo under such circumstances as these, so
universal as to the bind the respondents.

The sources of this evidence are said to be —

1. The judicial knowledge of the court.

2. The proofs in the cause.

414

But hereunder the following propositions are
submitted:

1. The court will not act upon any evidence
except that of the witnesses in the cause.

The point to be proved is a pure and mere
fact, to wit: the existence and the limits of an
actual usage at that particular time in the port
of Boston.

It is a question of how men of business meet
the governor's proclamation in fact.

Now, this is wholly out of the sphere and
scope of Judicial notice.

2. The court judicially or personaUy knows
some facts which will determine it to rely upon
no evidence but that which is produced at
these several trials.

If the day is a usual one for unlading goods,
the unlading vests in the carrier all me risht
pertaining to unlading with notice. WhetS^^
it is a usual one for removing them from Uie
wharf, is wholly immaterial.

It is the custom of unlading a half unladen
vessel which is in question.

Customs are limited, peculiar and adapted
to particular states of fact. Our rights depend
on our case. The custom for our exact case is
the only relevant one.

Our legal right to unlade on that day is clear —
that is, no law prohibits it. To strike from
our week one of its legal working days, and
compel us to a fast or a rest to which law does
not, a universal usage is demanded.

1 Duer on Ins., 258, 261, 262, 266; The
Pokroffon, Ware, 822.

The proof, so far from establishing such a
usage not to unlade, establishes the universal
usase to unlade.

The following points of fact are established
by the evidence:

1. That the discharge of vessels begun to be
unladen before fast day. continues on that day.

2. Cargoes are moved on that day from the
wharf.

8. Labor is generally done on that day by all
to whom it is necessary or highly convenioit to
do it.

4. Expresses, freight and passenger trains go
on that day.

5. It is a working day in all charter-parties.

6. Public worship is not observed.

If the practice be for the carrier to unlade
under such circumstances, even if tbe consignee
may refuse to take, he cannot, by such refusal,
impose upon the carrier any greater liability
than that of bailee for reasonable care.

2. If such a usage, as is contended for by li-
belants, be estabUsned, it is one which may be
waived. It was waived by Soils, the clerk,
who had full power to represent the consignees
respecting the unlading and delivery, as their
agent, and he waived all objection to a deliv-
ery on fast day.

8. It is the duty of oondgneee to remove
goods from the place where landed, so soon as
not to occasion delay, and this thev engaged
to do in this case by Solis, their clers.

They neglected to do so, and thereby made
it necessary to complete unlading on fast day.
They cannot have aamages occasioned by fire
which would not have injured their property,
if they had not been guilty of neglect which
subjected it to that injury.

64 U.S*

IWO.

RlOBABDSON T. GODDABD.

28^5

Mtmn, O. CiMhiiiipandO. B. Ooodrieh,

forappelleeB:

1. The bills of lading in this case import one
full and complete obli^Uion to deliver as well
as to carry.

Buch is the general law of carriers by sea or
land.

Anff. Carr., sec. 822.

Ana such is the special law of carriage by sea.

Fland. Ship., sees. 607, 518; see, also, 8t0iD$nM
y. Bo9lan and Maine BaOroad, 1 Gray, 277;
Pars. Mera L., 202. 207; Miiler ▼. 8Uam Nai9,
Co., 18 Barb, 801.

2. The only exception to this rule in marine
carriage is of perils of the sea.

Fire on the wharf, after landing, is not within
the exceptions.

OUwr ▼. MempMs Im, Co., 60 U. 8. (10
How.). 812; Airey v. MerrOl, 2 Curt. C. C. 8.

8. Delivery is either actual or constructive.

Actual delivery is to the consipiee nrhis au-
thorized agent, the deliveree receiving the goods
in fact.

Constructive delivery consists of notice,
tender, readiness, and present ability to deliver
according to the contract, all such conditions
being reasonable as to tim^ and place, and so
constituting duty to receive.

Ad. Cont., 7iW; Fland. Ship., sec. 811; Ang.
Carr., sec. 828.

4. Unlading and delivery are, or may be,
distinct facts, as well in constructive as in act-
ual delivery.

Thus, the fact of landing on a wharf is not,
necessarily, the fact of delivery.

Ad. Cont., 811, 812; Fland. Ship., 270; Logt
of Mahoffany, 2 Sumn., 580; (ktrander v.
Bnmn, 15 Johns., 80; Qibton v. Oulter, 17
Wend.. 805; FUk v. Ifewton, 1 Den., 45; Ang.
Carr., 800.

5. Separation of the goods to be delivered
from others, is of the essence of the question
of the readiness to deliver and the duty to re-
ceive, so as to establish constructive delivery.

Britian v. Bamaby,^2 U. S. (21 How.). 582.

6. Tender of delivery in such quantities rel-
atively to time as may make reception and re-
moval for storage practicable, is of the essence
of constructive delivery.

Ang. Carr., sees. 287, 818; BrUtan v. Bar-
naby, 21 How.. 582; Fars. Merc. L., 206; Price
V. Atoetf. 8 N. Y.. 822; Benton v. Blunt, 1
Adol. &E.,K. S.,870.

7. Due relation of notice of delivery to the
time or times of delivery, so as to impose on
the consignees no unreasonable consumption of
time in the reqpption of the goods, is of the
essence of constructive delivery.

Oatliffy, Bourne, 4 Bing. N. C, 821.

8. Proffer of delivery on and for a lawful
dav. is of the essence of constructive delivery.

t Notice on the Lord's day and landing next
morning are bad.

Bourne v. OaUiff, 11 CI. & F., 40.

Generally, die$ feeti and holidays are not days
for Uie execution of contracts.

Chit. Cont., 7 Am. ed., 721, noU,

As to such days, the following things are to
be noticed, viz. :

(a) In common contracts not negotiable, if
day of performance falls due on a holiday, it is
perfonnable the next day.

Chit. Cont, uteupra; Chit. Bills, 11th Am.

See 28 How.

ed.. 277, note; SaUer v. Burt, 20 Wend., 205;
SuifUe V. FrankUn Bank, 1 Met, 47.

(i) In negotiable contracts, or with grace.,
the day before.

Story. Prom. N., sec. 210; Chit Bills, 11
Am. ed., 877 a, note,

(e.) National or local usages as to holidays
have the same effect as statutes.

Story, Prom. N., sec. 222; Chit Bills. 11th
Am. ed., 878 a n,\ City Bank v. CuOer, S
Pick.. 414.

0. In constructive delivery, the conditions
of reasonableness are affected and sometimes
determined by the usajre of business, which
usase is a question of fact, regulated, however,
by legal doctrines.

10. Under such delivery, actual or construct-
ive, the ship's liability under the bill of lading
continues.

StoiT. Bail., sec. 588; 8 Kent's Com., 168-
167; Price v. POuitU, 8 N. Y., 822; MiOor v.
Sleam Nat. Co., 18 Barb, 861; HiU v. Hum-
phreye, 5 Watts & 6., 128: Barman v. Clarke, 4
Camp.. 150; Ooold v. Chopin, 10 Barb.. 612;
QaiUffy. Bourne, 4 Bing. (N. C), 814; S. C.
8 Man. <ft Gr., 648; 8. C, 11 Clark & F.. 45;
f^ V. Newton, 1 Den., 45; ITumae v. Boe. db
Proe. R, 10 Met. 472; Lome v. Weetem Bail-
road, 11 Met, 500; Norway Plains v. Bon. d;
Maine, 1 Gray, 268.

It appears proved in the present case, that so
far as any usage exists to supply the elements
of reasonableness in the evidence of ccmstruc-
tive delivery, it is to haul up to some suitable
wharf and land the goods to be received there;
that is conceded to bs a lawful usage.

OalUffY. Bourne, 4 Bing. (N. C), 814.

It appears in the present case conclusivelv,
that the libelants used all duedeligence to take
away their soods as soon as the landing com-
menced, ana so long as it continued prior to
ThursdiMr ; libelants' asnnts and servants worked
on Monaieiy and on Tuesday, so long as they
could 'find any cotton.

So far as regards men and teams and storage,
they could have removed all their cotton on
Wednesday, but the parcels were not separated
or set apart by the ship on being landed, and
were not, according to law, made by the master
ready for delivery, and so there could be no
constructive delivery beyond the actual amount
received in part, ana receipted for by libelants'
agent

This consideration applies to so much of the
cotton burned, if any. as was landed before
Wednesday.

Fast day. by prockmation, is a lawful holiday
in Massachusetts, on which libelants were not
bound to receive, and therefore all goods landed
that day remained at the risk of the ship.

Stat of Mass., Act of 1888, ch. 182, makes
biUs of exchange fallinff due on fast day pay-
able the day before, with notice of protest the
day after.

Act of 1856. ch. 118 (April 15, 1856). for-
bids courts and public oiflces to be open on fast
day.

It is a dice non by immemorial usage in Mas-
sachusetts.

It is a much stronger case of diet non by
usage than that in CUyBanky. Cutter, 8 Pick..
414, which was of Commencement Day at Har-
vard College.

415

138-45

8X7PBBMS COUBT OF THB UniTKD STATBB.

Dbc. Tsbm,

Ckmeltuian,

1. There was no actual delivery in this case.

2. The goods were destroyed l>ef ore the time
of lawful reception arrived, and there was no
constructive oelivery.

8. The ship is, therefore, liable for the goods.
4. And to the full value.
And the decree of the circuit court must be
jijB9rmed.

Mr. Jiutiee Ghrier delivered the opinion of
the court:

The barque *' Tangier, a foreign vessel in the
port of Boston," is charged in the libel with
A failure to deliver certain bales of cotton, ac-
cording to her contract of affreightment The
answer admits the contract, and alleges a full
compliance with it, by a delivery of the cai^go
on the wharf; and that after such delivery, a
part of the cargo was consumed by Are, before
u was removed to the consignees.

The libelants amended their libel, admitting
the receipt of 1^ bales, and setting forth, as a
reason for not receiving and taking away from
the wharf that portion of the cargo which was
unladen on Thursday, *' that, by the appoint-
ment of the Governor of Massiushusetts, that
day was kept and regarded by the citizens as
' a day of fasting, humiliation, and prayer,'
and that from time immemorial it has been the
usase and custom to abstain from all secular
WOK on that day;" and consequently, that
the libelants were not bound to receive the
carffo on that day; and that such a delivery,
without their consent or agreement, is not a de-
livery or offer to deliver in compliance with
the terms of the bill of lading.

Three questions of law were raised on the
trial of this case below:

1. Whether the master is exempted from
liability for a loss occasioned by acciaental fire,
after the goods are deposited on the wharf, by
the Act of Congress of March 8d, 1861 (9 Stat.
atL., 685).

2. Whether the master is liable, under the
circumstances of this case, for the loss of the
<x)tton, on the general principles of the mari-
time Itfw,' excluding the fact of fast day.

8. If not, whether the riipht of the carrier to
•continue the discharge of his cargo is affected
by the fact that the governor had appointed
that day as a general fast day.

As our decision of the second and third of
these point« will dispose of this case, we do not
think it necessary to express any opinion on
the first.

We will first inquire whether there was such
a delivery of cargo in this case as should dis-
charge the carrier under this contract of af-
freightment, irrespective of the peculiar char-
acter of the day.

The facts in evidence, so far as they are
material to the correct decision of this point,
are, briefly, as follows:

The bM-que Tangier arrived in the port of
Boston on the 8th of April, with a cargo of
cotton, intending to discharge at Battery
wharf; but at the request of the consignees,
and for their convenience, she *' hauled up "
at Lewis' wharf. She commenced the dis-
charge of her carffo on Monday, the 7th, and
on the same day day the master gave notice to
the consignees of his readiness to deliver the

416

goods. The unlading was commenced in the
afternoon, and was continued through the
forenoon of Tuesday, when, the cotton not
being removed, the wharf became so full that
the work was suspended. Notice was again
^ven to the consignees; and they still negtect-
ing^to remove their cotton, a third notice waa
added on Wednesday morning. On the after-
noon of that day, all the cotton which had been
unladen on Monday and Tuesday was removed,
excepting 826 bales, which remained on the
wharf over night. On Thursday morning, the
wharf was so far cleared that the unlading waa
completed by one o'clock P. M. On that day.
the libelants took away about five bales, and
postponed taking the rest till the next day, giv-
ing as a reason that it was fast day. Atwut
three o'clock of this day, the cotton remaining
on the wharf was consumed or damaged by an
accidental fire.

The contract of the carrier, in this case, ia
"tx) deliver, in like good order and oonditioD,
at the port of Boston, unto Goddard & Pritch-
ard."

What constitutes a good delivery, to satisfy
the exigency of such a contract, will depend on
the known and established usages of the par-
ticular trade, and the well known usages of the
port in which the detivery is to be mi^e.

A carrier by wagon may be bound to deliver
his freight at the warehouse of the consignee ;
carriers by railroad and canal usually deliver
at warehouses belonging to themselves or
others. Where the contract is to carry by aea,
from port to port, an actual or manual tradi-
tion of the goods into the possession of the
consignee, or at his warehouse, is not required
in order to discharge the carrier from his lia-
bility as such.

There is no allegation of. a particular custom
as to the mode and place of delivery, peculiar
to the City of Boston, which the carrier has not
complied with. The general usages of the
commercial and maritime law, as settled by
Judicial decisions must, therefore, be applied to
the case. By these, it is well settled that the
carrier by water shall carry from port to port,
or from wharf to wharf. He is not tx>und to
deliver at the warehouse of the consignee; itia
the duty of the consignee to receive we goods
out of the ship or on the wharf. But to con-
stitute a valid delivery on the wharf, the carrier
should give due and reasonable notice to the
consignee, so as to afford him a fair oppor-
tunity of providing suitable means to remove
the goods, or put them under proper care and
custody.

Such a delivery, to be effectual, should not
only be at the proper place, which is usually
the wharf, but at a proper time. A carrier
who would deposit goods on a wharf at night
or on Sunday, ana abandon them without a
proper custodian, before the consignee had
proper time and opportunity to take them into
his possession ana care, would not fulfill the
obligation of his contract. When goods are
not accepted by the consignee, the carrier
should put them in a place of safety; and when
he has so done, he is no longer uable on his
contract of affreightment.

Applying these principles to the facts of this
case, it is clear that (saving the ouestion as to
.the day) the respondents are not nMe on their

MU.B.

1860.

RlCH4BDiiON V. GODDABD.

3&-45

<*ontract of affreightment for the loss of the
goods Id question. They delivered the goods
at the place chosen by the consignees, and
where they agreed to receive them, and did re-
<»iye a large portion of them, after full and
fair notice.

The goods were deposited for the consignees
in proper order and condition, at mid-day, on
a week day, in good weather. This undoubt-
edly constituted a good delivery; and the car-
riers are clearly not liable on their contract of
affreightment, unless, by reason of the fact
next to be noticed, they were restrained from
unlading their vessel and tendering delivery on
that day.

II. This Inquiry involves the right of the
carrier to labor on that day, and discharge
cargo, and not the right of the consignee to
keep a voluntary holiday, and to postpone the
removal of the goods to his warehouse to a
more convenient season. The policy of the
law holds the carrier to a rigorous liability;
■and in the discharge of it, he is not bound to
await the convenience or accommodate himself
to the caprice or conscientious scruples of the
<x>nBi^ee. The master of a ship usually has a
certam number of lay days. He is bound to
expedite the unlading of his vessel, in order to
relieve the owners from the expense of demur-
rage, and to liberate the ship from the onerous
liability of the contract of affreightment as
eoon as possible. He has six days of the week
in which to perform this task, and has a right
to demand the acceptance of his freight by the
•consignee. The consignee may think it proper
to keep Saturday as his Sabbath, and to ob
serve Friday as a fast day. or other church
festival, or he may postpone (he removal of the
goods because his warehouse is not in order to
receive them; but he cannot exercise his rights
at the expense of others, and compel the car-
rier to stand as insurer of his property, to suit
his convenience or his conscience.

Let us inquire, then, 1st, whether there Is
any law of the State of Massachusetts which
forbids the transaction of business on the day
in question. 2d. If not, is there any general
•custom or usage engrafted into the commercial
or maritime law, and making a part thereof,
which forbids the unlading of vessels and a
tender of freight to the consignee on the day
set apart for a church festival, fast, or holiday?
and 8d. If not, is there any special custom in
the port of Boston which prohibits the carrier
from unlading his vessel on such a day, and
compels him to observe it as a holiday?

1. There is no Statute of Massachusetts which
forbids the citizen to labor and pursue his
worldly business on any day of the week, ex-
cept on the Lord's day, usually called Sunday.
In the case of Fhrr^um v. JPbfole, 12 Mass. , 89,
it is said by Chief Justice Parker : ' ' There are
no fixed and established holidays in Massachu-
setts, in which all business is suspended," ex-
cept Sunday.

2. The observance of Sunday as a Sabbath
or di^ of ceremonial rest was first enjoined by
the Emperor Uonstantine as a civil regulation,
in conformity with the practice of the Christian
church. Hence it is a maxim of the civil law,
**IHdnu dominida fMreari, judicari vel jurari
non debet. '* This day, with others soon after
added by ecclesiastical authority (such as '*/Mm

flee 23 How. U. 8., Book 16.

nataUs, ** or Christmas, and ' *Paecha, " or Easter),
were called '^DieafeeH," or '* Fma," which we
call festivals, saints' days, holy days, or holi-
days. In the thirteenth century, the number
of these festivals enjoined by the church was
so increased that they exceeded the number of
Sundays in the year. The multiplication of
them by the church had its origin in a spirit of
kindness and Christian philanthropy. Their
policy was to alleviate the hardships and misery
of predial slaves and the poor laborers on the
soil who were compelled to labor for their feudal
lords. But afterwards, when these vassals were
enfranchised and tilled the earth for themselves,
they complained that '* they were ruined " by
the number of church festivals or compulsory
holidays. In 1696, the French King forbid the
establishment of any new holidays, unless by
royal authority; and the church went further,
and suppressed a large number of them, or
transferred their observance to the next Sunday.
See Dalloz. Vol. XXIX., Tit. '*Jour ferie,"
and 2d Campeaux droit civil, page 168.

The same observance of these festivals was
required by the ecclesiastical authorities as that
which was due to Sunday. Men were forbidden
to labor or to follow their usual business or em-
ployments. But to this rule there were many
exceptions of persons and trades, who were not
subjected to such observance.

Without enumerating all the exceptions, we
may mention that, by the canon law, the ob-
servance of these days did not extend "to those
who sold provisions; to posts or public convey-
ances; to travelers; to carriers bv land or water;
to the lading and unlading of ships encniged in
maritime commerce."

Thus we see that in those countries where
these holidays had their origin, and the sanc-
tion both of church and state, they were not
allowed to interfere with the necessities of
commerce, or to extend to ships, or those who
navigate them. And it would certainly present
a strange anomaly. If this country, in the nine-
teenth century, should be found re-establfshing
the superstitious observances of the dark ages
with increased rigor, whichboth priest and sov-
ereign in the seventeenth have been compelled
to abolish as nuisances.

In England and other Protestant countries,
while a more strict observance of the Lord's
day is enforced by statute, the other fasts and
festivals enioined by the church have never
been treated as coming within the category of
compulsory holidays. Every maq is left free
to follow the dictates of his conscience in regard
to them. Formerly their courts sat even on
Sunday; nor were contracts made on that day
considered illegal or void till the Statute of 29
Charles II., ch. 27, was enacted, whereby "no
person whatever is allowed to do or exercise
any worldly labor or work of their callings on
the Lord's day." But this prohibition was never
extended, either by statute or usage, to other
church fasts, festivals or holidays. It is true
that there are three days in the year, to wit:
** Candlemas, Ascension, and St. John the Bap-
tist," in which the courts do not sit, and the
officers are allowed a holiday. But there is no
trace of any decision by their courts that worldly
labor was prohibited on those days, or any usage
that sbips should not be unladen and freight
delivered and received on such days. These

27 417

170-172

SUFBBMB Ck>UBT OF THB UllITHD STATBA.

Dbo. TkBM,

saints' days and church fasts or festivals are j
treated as voluntary holidays, not as Sabbaths
of compulsory rest.

In the case of mggins ▼. WiOU, 2 W. Black..
1186, where a public officer claimed a right of
holiday on the feast day of St. Barnabas, CkUf
Juitice De Grey says : * ' I by no means approve
of these self-made holidays; the offices ought
to be open." And in dparfoto ▼. Cooper, 2 W.
Black., 1815, the same judge obsenres, in ref-
erence to the same day: *' There is no pre-
scriptive right to keep this as holiday. It is
not established by any Act of Parliament. The
boards of revenue, customhouse, and excise,
may act as they please, and pay such compli-
ment to their officers and servants as they shall
judge expedient by remitting more frequently
the hard labor of Uieir clerks, but they are no
examples for the court. " And the justices, Qould
and Blackstone, severally observe: '*My objec-
tion extends to all holidays, as well as St.
Barnabas day."

It mav be observed in passing, that there, as
well as here, the class of persons most anxious
to multiply holidays were the public officers,
apprentices, cl^ks, and others receiving yearly
suaries.

It is matter of historv that the State of Massa-
chusetts was colonized by men who fled from
ecclesiastical oppression, that they might enjoy
liberty of conscience, and that while they en-
forced the most rigid observance of the Lord's
day as a 8abbath, or day of ceremonial rest,
they repudiated with abhorrence all saints' days
ana festivals observed by the churches of Rome
or of England. Thev '*did not desire to be
again brought in bondage, to observe davs and
months, and times and years." And while they
piously named a dav in every year wliich they
recommended that Christians would spend in
fastine and prayer, they imposed it on no man's
conscfence to abstain from nis worldly occupa-
tions on such day, much less did they antici-
pate that it would be perverted into an idle
holiday. The proclamation of the governor is
but a recommendation. It has not the force
of law, nor was it so intended. The duties of
fasting and praver are voluntary, and not of
compulsion, and holiday is a privilege, not a
duty. In almost every State in the Union a
day of thanksgiving is appointed in the fall
of the year by the TOvernor, because there is
no ecclesiastical authority which would be ac-
knowledged by the various denominations. It
is an excellent custom, but it binds no man's
conscience or requires him to abstain from labor.
Nor is it necessary to a literal compliance with
the recommended fast day that all labor should
cease,and the day be observed as a Sabbath,or as
a holiday. It is not so treated by those who con-
scientiously observe every YtySaj as a fast day.

III. Does the testimony in this case show that
from time immemorial there has been a well-
known usage, having the force and effect of
law in Boston, which requires all men to cease
from labor, and compels vessels engaged in for-
eign commerce to cease from discharging their
cargoes, and hinders consignees from receiving
them?

We do not know this fact judicially, for (ex-
cept in this case) there is no judicial decision,
or course of decisions, in Massachusetts, which
establishes the doctrine that carriers must cease

418

to discharge cargo on this day in the port of
Boston, but rather the contrary. And after &
careful examination of the testimony, we are-
compelled to say that we find no suddent evi-
dence of such a peculiar custom in Boston,
differing from that of all other commercial
cities in the world.

The testimony shows this, and no more: that
some persons go to church on that day; some
close the windows of their warehouses and
shops, and either abst^n from work or do it
privatelv; some work half the day and some
not at all. Public officers, school boys, appren-
tices, clerks, and others who live on salaries, or
prefer pleasure to business, claim the privilege
of holiday, while those who depend on their
dailv labor for their dally bread, and cannot ^-
f ordi to be idle, pursue their occupations as usual.
The libelants appear to have had no conscien-
tious scr^ples on the subject, as they received
goods from other ships, and some from this. But
the testimony is clear, that however great the
number may be who choose to convert the day
into a voluntary holiday for idleness or amose-
ment,it never has been the custom that vessels dis-
charging cargo on the wharves of Boston ceased
on that day; that like the canon law regarding
church festivals and holidays of other countries-
and former ages, the custom of Boston (if it
amount to anything more than tiiat every man
might do as he plei^ed on that day) did not ex
tend to vessels engaged in foreign commerce, or
forbid the carrier to continue Uie delivery of
freight on that day.

On the whole, we are of opinion that the
barque Tangier has made good delivery of her
cargo to the consignees according to the exi-
gency of her bill ^f lading, and thM the deone of
the etreuit court elunUd & revereed, and the libel
diemmed, with eoete.

Ctte<l~28 How., 219; 6 Wall., 485; 1 CUff., 888, 808..
401 : 1 Woods, 408 ; 8 Cliff.. 125; 2 Low., 128: MN.Y.,
125: 87 N. Y.,246; 81 Ind., 23; 7 Am. Bep., 808,884
(48 N. Y., 668): 11 Am. Rep.. 860 (52 N. Y., &); 87 Am.
Hep.,578(82N.Y.,419).

SAMUEL IRVINE and PETER FORBES^

HERMAN J. REDFIELD, late Ck)llector, &c

(See 8. C, 28 How.. 170-172.)

Duties on foreign merehandiae, how computed.

The duties upon foreign merchandise are to be
computed on tfaeir value on the day of the sailings
of the vessel from the foreign port, and the value
for the computation is the wholesale market prioe
there on such day.

day.
SubmiUedJan, 18, 1860. Decided Jan. S3, 1860.

N a certificate of division between the
Judges of the Circuit Court of the United
States for the Southern District of New York.

This was an action of ttemmpeit, brought in
the court below, by the plaintiffs against the
defendant, as late Collector of Customs of the
United States at the port of New York. The
defendant pleaded the general issue of nan m-
aumpnt.

When the case came on to be argued, there
being a division of opinion between the Judges,
the case was certified to this court.

The question, upon which the judm were
divided in opinion, appears in the opinion of
tlie court

<4 U.S.

1859.

KsHD/oji, Adm'x, y. Cbbighton.

90-108

The caae was sabmiUed on the transcript,
without argument in this court.

Memr$, HeCh&lloh and VallAiidlg^Iuuii.

for plaintifb.

Mr. J. 8. Bljbek, Atty-Gen., for defend-
ant.

Mr. JuiHee Wayne delivered the opinion of
the court:

This caae cornea to this court under a certifi-
cate of division of opinion from the Circuit
Ck>urt of the United States for the Southern
District of the State of New York.

The point made is. '* whether, bv the period
of exportation of merchandise from a for-
eign country to the United States, as used in
the Act of Congreas entited ' An Act to amend
the Acts regulating the appraisement of im-
ported merchandise, and for other purposes/
approved the 8d March, 1861, was to be taken
to mean the time when the merchandise had
been laden aboard a general ship, and the bill
of lading Uierefor given in the foreign port, or
at the time when said ship actually departed
from said foreign port, destined to the United
States."

The facts in the record are, that the ship
Henry Buck was a general ship at the port of
Glasgow, in Scotland, in the month of May,
1855, destined for the port of New York, in the
United States. That the plaintiff, on the 9th
May, 1856, bought three hundred tons of Colt-
ness pig iron, at the then wholesale market price
of siztj-four shillings sterling per ton, and
immediately commenced to load the same
aboard the ship, and tiiat the iron was all laden
and bills of lading given for it on the22d May,
1855, on which &y the market price of such
iron had risen to sixty-nine shillings per ton ;
that the ship remained in port, and sailed from
Glasgow on the 4th June, 1856, on which day
the market price of such iron had risen to
seventy-four shillings and sixpence sterling per
ton; and that, on the arrival of the ship in the
United States, the iron was appraised at the
custom house at the market price of twenty-
four shillings and sixpence sterling per ton.
On that valuation the defendant collected duty,
and twenty per cent on such value, in con-
formity with the 8th section of the Act of Con-
gress entitled, " An Act reducing the duty on
imports, and for other purposes," approved the
80 July, 1846 (9 Stat, at L., 42).

This court considered two years since in the
case of /Sampson v. PeasUe, 90 How., 671, the
meaning of the Acts of Congress of the 80th
July, 1846 (9 Stat, at L., 42), and that of theSd
Alarch, 1851 (9 Stat, at L., 629), for the col-
lection of duties upon imported goods, and
when and upon what twenty per centum ^ould
be charged upon an under valuation made by
an importer in his entry of merchandise. It
announced then, that if the appraised value of
imports which have actually been purchased
shall exceed by ten per centum or more the value
of ihem declared upon the entry, then, in ad-
dition to the duties imposed by law upon the
value of the same, there shall be levied, collect-
ed, and paid, a duty of twenty per centum
ad talorem on such appraised value. That
the additional value of twenty per centum could
only be levied upon the appraised value, and
not upon charges and commissions added to it.

See 28 How.

Also, that the day of the sailing of a vessel from
a foreign port is the true period of exportation
of the goods; and that the Secreta^ of the
Treasury had given a proper interpretation of
the statute, in directing it to be aone on the
market value of the gocras imported on the day
of the sailing of the vessel, and that he was au-
thorized by Taw to give such a direction.

We see no cause now for a different interpre-
tation of the statute, and direct that the question
certified to this court be answered, " that the
duties on foreign merchandise are to be com-
puted on their value on the day of the sailing
of the vessel from the foreign port, and that
the value for the computation is the wholesale
market price there on such day."

Cited-8CUff.,78.

LOUISA A. KENDALL, Adm*x of Daniel

Grbrn, Deceased, Appt.,

«.

FLETCHER CREIGHTON, in his own right,
and as executor of Jonathan McCalbb,
Deceased.

(See 8. C. 23 How., 90-106.)

Remedies in U. 8. eourte — not modified by itaie
laws or practice — creditor of an estate map sue
— proceedings in state court do not prevent suit
in U. 8. court— -sureties of administratar—
equity jurisdiction of circuit court to reach
assets.

In the organization of the courts of the United
States, the reraedlee at oommon law and in equity
have been dlstlnflrulshed, and the jurisdiction in
equity is ooofldea to the druult courts, to be ex-
ercised uniformly through the United States, and
does aot receive any modification from the legisla-
tion of the States, or the praotioe of their courts
having similar powers.

In the court of chancery, executors and admin-
istrators are considered as trustees, and that court
exercises original jurisdiction over them, in favor
of the creditors, legatees, and heirs, in reference to
the proper execution of their trust.

A single creditor may sue for his demand In
equity, and obtain a decree for payment out of the
personal estate, without taking a general account
of the testator's debts.

The fact of the pendency of proceedings in insolv-
ency in a state proliate court, will not oust the
jurisdiction of toe Circuit Court of the IJntted
States.

A forelgil creditor may establish his debt in the
courts of the United States against the representa-
tives of a decedent, notwithstanding the local hiwii
relative to the administration and settiement of
Insolvent estates, and the court will Interpose to
arrest the distribution of any surplus among the
heirs.

No one can proceed against the sureties on an ad-
ministration bond, at law, who has not[r(HX>vered a
judgment against the administrator.

The jurisdiction of a court of equity to enforce
the bond, arises from Its, Jurisdiction over adminis-
trators, to prevent multiplicity of suits, and Its
power to adapt its decrees to the substantial Justice
of the case.

Where the original debtor has died insolvent, and
his surety has died insolvent, and a portion of the
assets belonging to the estate of the hitter is in hands
of the surety of this administrator, and a discovery
of the assets In hand and their application to the
payment of the debt arerequlred— the circuit court
was authorized to entertain the suit.

8ubmittedJan. 10, 1860. Decided Jan. SO, 1860.

APPKAXi from the Circuit Court of the United
States for the Southern District of Missis-
sippi.

NoTX.-^ttfisrlictton of U. S. Ofrcutt Court depend^
ing nn parties and resiaenee. See note to Bmory v.
Oreenough, 8 U. S. (8 Dall.}, 808.

411^

90-108

buPHKMS ConvT or tojc Ujtitkd Htatkb.

Dbc. Tbrm,

The bill in this case was filed in the court be
low, by the intestate of the appellant, to reach
assets alleged to belong to the estate of Amos
Whiting, deceased.

The court below having dismissed the bill
for want of Jurisdiction, the complainant took
an appeal to this court.

The question of jurisdiction is the only one
before this court for consideration.

A further statement of the case appears in
the opinion of the court.

Mr. John D. Freeman, for appellant:

All the allegations of the bill are sustained
by the answers and proofs in the case, from
which it clearly appears that the complainant
is the sole distributee of Wheeler C. Green,
deceased, who died intestate in Claiborne
County, Mississippi, June, 1886; that Albert
Tunstall administered on said estate, gave an
administration bond in the penalty of f 60, 000,
with Amos Whiting as his surety : that Tunstall
wasted the whole estate and defaulted to the
amount of $61,000; that complainant, by a
lawful suit for that purpose in the Probate
Court of Claiborne Couptv, obtained a final de-
cree against Tunstall for that amount, in June,
1841.; that Amos Whiting was his surety and had
departed this life in said county in the year
1887; that George Lake and Whiting's wife ad-
ministered on Whiting's estate until March,
1880, when J. M. Rhodes intermarried with
Whiting's wife, and administered in her right
until Oct., 1841, when Lake and Rhodes and
wife were removed from the administration of
Whiting's estate for maladministration; that
defendant, Creighton. became administrator de
bonis non of Whiting's estate, on the removal
of Lake, Rhodes and wife; that said Creighton
is now insolvent I that defendant, Jonathan
McCaleb, became his surety on his administra-
tive bond in the penalty of $100,000. all of
which bonds are sued upon and set forth in
full ; thai Creighton has received a large amount
of the assets of the estate of Amos Whiting,
equitable or otherwise, which he has failed to
inventory and account for. and which he re
fuses to render an account of in this court, in-
sisting that he has accounted in the Probate
Court of Claiborne County, and that such ac-
counting is a bar to an account in this court.

The defendants admit the rendition of the
decree against Tunstall for $61,000, but fail to
make good their defense, or in any manner to
invalidate the same, nor do they prove any
claims against the estate of Green to have been
paid by Tunstall.

That Whiting, as surety of Tunstall on his
administration bond, is liable for the amount of
this decree, cannot admit of a doubt.

20 Pick., 58; 8 Watts, 286; 1 McMullen, 85,
100, 880; 6 Porter, Ala., 393; 4 Porter, Ala.,
895; 7 Blackford, 529.

Tunstall died insolvent; the money could not
be made out of him. Amos Whiting, his sure
ty, had died in 1837, and the only wav to es-
tablish his liability as surety for Tunstall to pay
the amount of Tunstall's defalcation to the es-
tate of Green, was to proceed a^inst the ad
ministrator of Whiting. But it is said that
Whiting's administrator is not liable in equity
to account until Judgment had been first ob
tained against him at law. To this I reply,
that it was the duty of Whiting, as surety of
4t0

- Tunstall. to see that he administered the estate
of Green according to law. He neglected this
duty; the court of probate had full Jurisdiction
to ascertain and decree the amount of Tunstall's
indebtedness to the estate of W. C. Green, as
administrator of the same; this decree was had
in accordance with law, as shown by the plead-
ings and proof, and the amount of this decree
could have been enforced on Tunstall by attach-
ment and imprisonment, if he had been pos-
sessed of the means to pay it The decree of
the probate court was, therefore, a lawful and
final assessment of the damages against Whit-
ing's principal in the administration bond, by
the only tnbunal in the State of Mississippi
having Jurisdiction of that subject, and must,
therefore, be regarded as conclusive evidence
of the amount of Whiting's liability for Tun-
stall, and with which his estate is chargeable.

1 Phil. Ev., 246; 7 How., 220; 2 Bumn,
458, 459; 2 J. J. Marsh,, 195.

The Jurisdiction of this court over executors
and administrators is not affected by the Consti-
tution and laws of Mississippi— iu Jurisdiction
is not derived therefrom nor limited thereby,but
only by the Constitution and laws of the l/nited
States ; and these confer upon thiscourt the same
Jurisdiction over administrators as that of the
Chancery Courts of England.

9 Pet., 682-658; 8 Wheat,, 212; 4 Wheat.,
108; 5 Mason. 105; 8 Mason, 165; 8 Leigh, 407;
2 Blackf., 877; 1 Har. & J., 282; Munf., 868:'
5 Rand., 819; Stew. & P.. 188; 1 Sto. Bq. Jur..
515. sees. 542-548, and 552; Jer. Eq. Jur,
537, 588; 4 Johns. Ch., 619; 8 Johns, Ch..
56, 190; Taylor v. Benham 5 How.. 288; Rule
51 of this court.

From these authorities it is evident that this
court has full Jurisdiction over the subject-mat
ter of the bill, the obJecU of which are to ob-
tain a discovery of assets in the liands of the
administrator not inventoried, and to reach
equitable assets of the estate in the hands of
his surety, JonathanHc Caleb and others, and
to marshal the assets of the estate of Whiting,
if the administrator does not admit sulllcient
assets to pay complainant's demand.

1 Story, Eq. Jur., 601,602, sec. 648.

'* A creditor may file his bill for the payment
of his own debt, and seek a discovery of assets
for this purpose only. If he does so, and the
bill is sustained, and an account is decreed to be
taken, the court will, upon the footing of such
an account, proceed to make a final decree in
favor of the creditor, without sending him
back to law for.the recovery of his debt; for
this is one of the cases in which a court of
equity, being once in rightful poesession of a
case for discovery and account, will proceed to
a final decree on all the merits.

1 Story, Eq. Jur., 603,604. sec. 546.

The defendant, Jonathan McCaleb, is not
only a surety on the bond of Creighton, but is
charged with having in his hands equitable
assets of the estate of Whiting, which a judg-
ment against Creighton would not reach, and
this fact is admitted by the answer of defend-
ants. Creighton is alleged to be insolvent, and
the charge is not denied; McCaleb, his surety,
has money of the estate which Creighton re-
fuses to collect; he is, therefore, a proper party,
for all these reasons.

Story, Eq. PI., 212, sec 178; 5 Gill A J.,

64 C. 8.

1890.

Kbnoall, Adm'x, y. Crbightom.

90-108

439-468; 10 Gill & J., 65, 100; 2 Rand., 808.
809.

In the case of The Ordinary v. Snooki, it wan
held that the probate court was the proper
tribunal to assess damages on an administration
bond.

6 Halst., N. J., 65; 1 Halst., cited as above.

But a court of equity has jurisdiction of a
bill by a distributee or legatee aj^ainst an ad-
ministrator and his sureties, or either of them
alone, on their bond, without any previous suit
at law.

6 Call, Ya., 21: 2 Rand., 488; 2 J. J. Marsh.,
198; 8 Mon., 354; 4 Mon., 296. 457; 2 Bibb,
276; 2 Hen. & M., 8; and Rule 51 of this court.
These cases are conclusive on the points of Ju-
risdiction, alike upon principle and as prece-
dents.

If Mississippi has deprived her chancery
court of a portion of its ori^nal jurisdiction, it
does not follow that the jurisdiction of the fed-
eral courts is therebv abridged in like degree.

See Const, of U. S.. art. 8, sec. 2; sec. 11,
Judiciary Act; also, U, 8. v. ffowland, 4
Wheat., 108; RMnwn v. Campbell, 8 Wheat.,
212; Livingstan v. 8tary, 9 Pet.. 655; PraU v.
Nartham, 5 Mason. 105; Qardon v. Hobart, 2
Sumn., 401; Gaines v, Bdf, 15 Pet.. 18: Ford
V. Douglas, 5 How., 168; Taylor v. Benham, 5
How., 260.

The question of Jurisdiction having been set-
tled, alike as to parties and subject-matter, and
it appearinar by the answers and proofs that
Amos Whiting was the surety of A. Tunstall
on his bond as administrator of W. C. Green,
deoeased>-that said Tunstall defaulted to the
amount of $61,000, which remains unpaid, for
which a final decree was rendered against him by
a tribunal having full authority to render such
decree, and that defendants have failed in their
attempt to invalidate said decree on a charge of
fraud, it follows, as a matter of course, that
complainant is entitled to a decree charging
the estate of Amos Whiting, in the hands of his
administrator de bonis non, with the amount of
said decree of the probate court to the extent
of the penalty of the administration bond of A.
Tunstall, which is $60,000.

Messrs, Geo. S. Terger and T. J. ft F.
A« R. Wkarton* for appellee:

The purpose of the complainant in filing this
bill was to relieve himself from the necessity of
pursuing the only course which, under the op
eration of the Constitution and laws of Missis-
sippi, it was competent for him to pursue, as
well as to evade the force and effect of decis-
ions of the high court of errors and appeals,
made in this very cause and between the same
parties.

It will be borne in mind that this suit is an
attempt to enforce the decree of the Probate
Court of Calibome County, Mississippi, which
was rendered in the plenary proceedings insti-
tuted in that court by the complainant herein
against Tunstall, the administrator appointed
by that court, of Wheeler C. Green. The case
is first brought to the attention of the said high
court of errors and appeals in Oreen v. Tun-
stall, 5 How. Miss. , 638. It was then and there
held, that the probate court has not Jurisdic-
tion which will enable it to proceed against the
sureties in an administrator's bond, on a ple-
nary proceeding by bill. The sureties in the ad-
See 28 How.

ministrator's bond must be sued at law, after
proceeding to fix the liability of the adminis-
trator. Beins liable only on the administraton
bond, not being officers of the probate court,
the only recourse against the sureties is by ac-
tion at law against them, after the liability of
the administrator has been ascertained by a
proper proceeding in this behalf, and after final
settlement by him, and a decree of the court
fixing the amount of his liability and directing
him to pay it.

The same rule is held in Alabama and South
Carolina, as may be seen by reference to the
cases cited by the high court, viz. :

1 Porter, 70; 8 Stew. &. P..268, 848; 2Bailey,
8. C.» 60; 1 Bailey, 8. C, 27; 1 Nott & McC,
587; 4 Nott & McC, 118, 120.

It will be recollected that Whiting was only
a security of Tunstall in his administration
bond, and survived the grant of letters to Tun-
stall only about ten months. The defendant,
Creighton, is administrator of Whiting and ex-
ecutor of defendant, McCaleb, who was a secu-
rity on the bond of defendant, Cr^i^hton, as
administrator of Whiting. The case cited from
5th How., apart from being an adjudication
between the same parties of the same subject-
matter, would be an aulhority upon general
principles for the appellees.

The next that we hear of these parties and this
litigation in Mississippi, is in 7 Sm. & M.. 197.

The high court there decided *'that in an ac-
tion at law on the bond of an administrator,
the bond is but inducement to the action, and
no recovery can be had on it without proof of
damages. It is only security for such dama^
as the parties interested in the estate sustain.
To make it a valid claim against an insolvent
estate or against anyone, it must be accompa-
nied by proof of damages; if not so accompa-
nied, it is not a claim. There must be proof
that the condition has been broken, for it is
only on such a contingency that a right of ac-
tion accrues." And again, 'instead of allow-
ing the penalty of the bond as a claim, the ref-
erees should have allowed the amount of dam-
ages sustained by a breach of the condition. "

We again meet with this same claim in Oreen
V. Greighion, 10 Sm. & M., 159. Now, how
ever, the forum is changed, and instead of pro-
ceedings in the Probate Court of Claiborne
County, it is a bill filed in the Superior Court
of Chancery of Mississippi, and we ask atten-
tion to the striking similarity of the prayer as
set out in the report of the case, and the pray-
er of the present bill. The objects of the bill
are very clearly specified in the opinion of the
court, and are" the same precisely in legal in-
tendment and effect with the objects of this
bill. An injunction had been granted to restrain
defendant, Creighton. from paying a certain
other claim against the estate of Whiting. Ths
ChaneeUor dissolved the injunction, and from
that order an appeal was taken to the high
court of errors and appeals.

The following is the emphatic langusge of
the court in affirming the degree of the Ghan-
ceUor:

" Nothing, certainly, is better settled in this
court than that the court of chancery does not
possess the jurisdiction which it is here asked to
exercise. The administration of 'estates and the
settlement of the accounts of the administrators^

491

90-108

BUPRBlfB COUBT or THB UnTTBD STATm.

Dec, Term.

peculiarly and exclusively under the cog-
ace of the probate court. * * * Suits upon

falls.

nizanceof the' probate court. "^ * * »uits upon
the bonds of administrators pertain to the cir-
cuit court."

Iq that bill it was alleged that the adminis-
trators had practiced fraud in their settlement
with the probate court, of which, however, no
proof was offered or attempted, and the high
court held that if the charge were establishMl,
a court of equity would nave jurisdiction of
the bill, to set aside the settlements and order
new ones to be made in the probate court.
They also noticed the objection taken by the
appellant's counsel, " that there was no demur-
rer to the jurisdiction of the court below, and
that it was too late to raise the objection in the
high court, and beside that, that rule is only
applicable in cases of concurrent jurisdiction,
not where there is an entire want of jurisdiction
of the subject matter."

The foregoing summary will serve to show
that this is no new case in the courts of MLsis*
sippi, either in name or principle, and wiU
also serve to show a reason for the change of
forum.

Precisely similar in all its features is the case
of Buckingham v. Owen, 6 Sm. & M., 503.

After reviewing the authorities cited for the
appellee, some of the very same cited by ap-
pellants in this case, particularly Spottvoood v.
Dandriige, 4 Munf., 289, they wholly deny
the principle attempted to be established by
them. They admit that in some of the States
of the Union, in suits against executors and ad-
ministrators, courts of equity have concurrent
Jurisdiction with courts of law, and that it is
upon that principle a court of chancery in Vir-

SQia exercises it ; but they quote, with api>ro-
t]on,the language In 2 ELob. Pr., 88, showing
the strong inclination of the court of appeals
in that State to restrict parties to their remedy
at law, when it is full and adequate, and refer-
ring to the case before cited by us.

Green v. TunUM, 5 How. Miss., 688.

They say that was a bill filed wUnst the ad-
ministrator and his sureties for a discovery and
account of assets and for distribution. The ob-
ject was similar to that in view in this case.

Buckingham v. Owen.

The very authorities cited to sustain this bill
were cited in the argument of that cause.
The court decided that the remedy upon the
bond was exclusive in a court of law. So they
held that the Chancellor erred in overruling the
demurrer; they reversed his decree and dis-
missed the bill for want of jurisdiction in the
chancery court to entertain it.

The 4th art. sec. 18, of the Constitution of
the State of Mississippi, provides for the estab
lishment of the probate court. Its langua^
is, ** That a probate court shall be estab-
lished in each county of this State, with juris-
diction in all matters testamentary, and of
administration of orphans' business, and the
allotment of dower, in cases of idiocy and
of lunacy, and of persons non compos mentis."
In construing the powers of that court, de-
rived from mat clause of the constitution,
the High Court of Errors and Appeals of
Mississippi have repeatedly held that its ju-
risdiction was exclusive in reference to the
matters comm'itted to it. And thus the su-
perior court of chancery of said State has no

422

Jurisdiction whatever of the subjects confided
to the probate court. Accordingly, on a bill
filed in said chancery court to review in a mat-
ter of administration the proceedings of the
probate court, it was held that the chancery
court had no jurisdiction of the case; that it
belonged exclusively to the probate court, and
the bill was, therefore, dismissed.

See Blanton v. King, 2 How. Miss., 866;
CarmiehaelY. Browder, 8 How. Miss., 253.

Agun. When the probate court has full Ju-
risdiction of a matter, its judgment is final and
cannot ' be disturbed, unless fraud is charged
and proved.

StuMUfiM V. MeBaten, 5 8m. & M.. 180;
Jones V. Coon, 5 Sm. & M., 751.

The utmost that a court of chancery can do
is. where fraud is charged against a settlement
of an administrator in me probate court, to set
aside a settlement in the probate court and di-
rect a new settlement there— its Jurisdiction
does not extend beyond that as was held be-
tween the paities to this record in 10 Sm. & M.,
159.

If this be true, as ^e have shown, that the
probate court has exclusive jurisdiction within
the sphere of its delegated powers; and if, fur-
ther, it is true, both as a general rule of law
and as settled by Judicial decisions in this
State, that the probate court could not proceed
against the sureties on the bond after ascer-
taining and fixinar by its decree the amount for
which the administrator is responsible, but
could only direct that as to them the bond
should be put in suit in a court of law, upon
what foundation does a complainant rest his
claim?

We cite a few cases, to show what deference
this court has always paid to the decisions of
the state courts in sustaining their local laws.

MeKeen v. DeLancey, 6 Cranch. 22, 28;
PoUes Lessee v. Wendal, 9 Cranch, 87; MuituU
Assur. Soc. v. WaUs, 1 Wheat., 279; Shipp v.
MiUer^s Heirs,2 Wheat., 316; Elmendoffv. lay-
lor, 10 Wheat., 152; Shetby v. Ouy. 11 Wheat..
861.

Mr. Justice Campbell delivered the opinion
of the court:

The inestate of the plaintiff, as an heir of
Wheeler Green, deceased, and claiming, by as-
signment of the remaining heirs, the entire es-
tate, filed this bill against the defendant, in his
capacity of administrator of Amos Whiting,
deceased, and of executor of the will of Jona-
than McCaleb. He states, that Albert Tun-
stall became the administrator of the estate of
Wheeler Green by the appointment of the
Court of Pcpbate of Claiborne County, Mi»is-
sippi, in 1886 ; that he ^ve bond for the faith-
ful performance of his duties, with Amos
Whiting as his surety: that Tunstall received a
large amount of property belonging to the es-
tate, and committed a dewutanitx that in the
year 1841, his inestate summoned Tunstall be-
fore the probate court to make an account,
and upon that accounting he was found to be
indebted to him, as heir, $61,194.76: which
sum he was required to pay by the decree of
the court, and authority was given to prose-
cute a suit on the administration bond. The
bill avers that Tunstall and Whiting, his sure-
ty, are both doid, and that all of his other

64 U.S.

1809

Ebnoall Adm'x y. Ckbightom.

90-108

sureties are insolyent. It charges that the de-
fendant, Creighton, as administrator of Whit-
ing, has assets in his hands for administration,
and tliat a portion of the assets is in the hands
of HcCaleb, who is the surety of Creip;hton on
his bond to the probate court, as admmistrator
of Wliiting.

The object of the bill is to establish the claim
of the inestate and his representatiye arising
from the Judgment against Tunstall and the
breach of his adminiSration bond, on which
Whiting is a surety, against the administrator
of Whiting and his surety, and to obtain satis
faction from them to the extent of the assets in
their hands belonging to that estate, and for
this purpose they seek a discovery of the assets,
4^id account and payment.

The defendants appeared to the bill, and
allege that the estate of Whiting has been reg-
ularly administered; and tiiat returns have been
made to the Probate Court of Claiborne Coun-
ty. Mississippi, of whatever property came to
the hands of Uie administrator, Creighton, whoso
^character as administrator is admitted ; and that
he was thenengaeed in administering the estate
under the laws of Mississippi ; that the estate had
been reported to the probate court as insolvent
several years before this suit was instituted, and
that commissioners had been appointed by that
court to receive and credit the claims; which
<x)mmission was still open for the proof of
claims. They contest the validity of the Judg-
ment recovered against Tunstall, and the truth
of the account preferred against them, and deny
the Jurisdiction of the circuit court to entertain
this bill. The connection of McCaleb with the
bond of Creighton is admitted, and also that a
portion of the money of the estate of Whiting
had been deposited with or lent to him. Upon
the hearing of the cause on the pleadings and
proofs, the bill was dismissed for want of 1u-
risdiction, and bv the agreement of the parties
the record has been up so as to present that
question only. None other will, therefore, be
considered. In the organization of the courts
of the United States, the remedies at common
law and in equity have been distinguished,
and the Jurisdiction in equity is confided to
to the circuit courts, to be exercised uniformly
through the United States, and does not receive
any modification from the legislation of the
States, or the practice of their courts having
similar powers. Lmngtton v. Story, 9 Pet., 882.

The Judiciary Act of 1789 conferred upon
the circuit courts authority "to take cogni-
zance, concurrent with the courts of the several
States, of all suits of a civil nature, at common
law or in equity, where the matter in dispute
exceeds, exclusive of costs, the sum or value of
five hundred dollars, and * * * the suit is be-
tween a citizen of the state where the suit is
brought, and a citizen of another state."

The questions presented for inquiry in this
suit are, whether the subject of the suit is prop-
erly cognizable in a court of equity, and wheth-
er any other court has previously acquired ex-
clusive control of it. The court has jurisdic-
tion of the parties. In the court of chancery,
executors and administrators are considered as
trustees, and that court exercises ori^nal juris-
diction over them, in favor of creditors, lega-
tees, and heirs, in reference to the proper exe-
cution of their trust. A single creditor has

See 98 How.

been allowed to sue for his demand in equity,
and obtain a decree for payment out of the per-
sonal estate, without taking a general account
of the testator's debts. AUy-Qevi. v. (hrnth-
tcaite, 2 Cox, 48; Adams, Ex., 257. And the
existence of this jurisdiction has been acknowl-
edged in this court, and in several of the courts
of chancery in the States. Hagan v. WaJUcer,
14 How., 29; Phari$ v. Letiehman, 20 Ala.,
668; Spoitswood v. Dandridge, 4 Munf., 289.
The answer of the defendant contains an asser-
tion that, prior to the filing of the bill, the es-
tate of Whiting was reported to the Probate
Court of Clail>ome County as insolvent, and
thereupon tliat court had appointed commis-
sioners to audit the claims that might be pre-
sented and proved, as preparatory to a final
settlement, and that the commission was still
open for the exhibition of claims.

But of this statement there is no sufficient
proof. Neitiier the report nor any decretal or-
der founded on it is contained in the record,
and the proceedings referring to one are of a
date subsequent to the filing of the bill.

The question arises, then, whether the fact
of the pendency of proceedings in insolvency
in the probate court will oust the jurisdiction
of the Circuit Court of the United States. In
Suydam v. Broadnax, 14 Pet., 67, a similar
question was presented. A plea in abatement
was interposed in the Circuit Court in Alabama,
in an action at law against administrators, to
the effect that the decedent's estate had been
reported as insolvent to a court of probate, and
that jurisdiction over the persons interested
and the estate had been taken in that court.
This court declared that the 11th section of
the Act to establish the Judicial courts of the
United States, carries out the constitutional
right of a citizen of one state to sue a citizen of
another state in the Circuit Court of the United
States. '*It was certainly intended." say the
court, " to ^ve to suitors having a right to sue
in the circuit court remedies co-extensive with
those rights. These remedies would not be so,
if any proceedings under an Act of a State Leg-
islature to which a plaintiff was not a party, ex-
empting a person of such stale from suit, could
bebleaded to abate a suit in the circuit court."

In WiUkms v. Benedict, 8 How.. 107, this
court decided that a judgment creditor in a
court of the United States could not obtain an
execution and levy upon the property of an es-
tate legally reported as insolvent in the State of
Mississippi to the probate court, and which
was in the course of administration in that court.
The court expressly reserve the question as to
the right of a state to compel foreign creditors,
in all cases, to seek their remedies against the
estates of decedents in the state courts alone,
to the exclusion of the jurisdiction of the courts
of the United States.

The cases of Peale v. Phipps, 14 How., 868,
and Bank of Tenn. v. Horn, 17 How., 157, are
to the same effect.

The case of The Union Bank v. JoUy, 18
How., 503, was that of a Judgment creditor
who recovered a judgment against adminis-
trators, who subsequently reported the estate of
their decedent insolvent. After administering
the estate in the probate court, it was ascer-
tain^ that there was a surplus in their hands.
The creditor had not made himself a party to

428

17d-190

SUPBBMB OOUBT OF THB UNimD STATBA.

Dbc. Tbbm,

the settlement in the probate court; and the
adminiBtrators contended that his claim was
barred.

This was a suit in Mississippi. This court
determined that the creditor had a lien upon
the assets thus situated.

Thus it will be seen, that under the decisions
of this court, a foreign creditor may establish
his debt in the courts of the United States against
the representatives of a decedent, notwith-
standing the local laws relative to the adminis-
tration and settlement of insolvent estates, and
that the court will interpose to arrest the dis-
tribution of any surplus among the heirs.
What measures the courts of the United States
may take to secure the equality of such credit-
ors in the distribution of the assets, as provided
in the state laws (if any) independently of the
administration in the probate courts, cannot be
considered until a case shall be presented to this
court.

The remaining question to be considered is,
whether the debt described in the bill entitles a
plaintiff to come into a court of equity, under
the circumstances. It is well settled, that no
one can proceed against the sureties on an ad-
ministration bond, at law, who has not recov-
ered a judgment against the administrator. 5
How.. Miss., 638; 6 Port., 808. But this rule
. is not founded upon the supposition that there
is no breach of the bond until a Judgment is
actually obtained. The duty of the adminis-
trator arises to pay the debts when their exist-
ence is discovered; and the bond is forfeited
when that duty is disregarded. The Jurisdic-
tion of a court of equity to enforce the bond
arises from its jurisdiction over administrators,
its disposition to prevent multiplicity of suits,
and its power to adapt its decrees to the sub-
stantial Justice of the case. Moore v. WaUer,
1 A. K. Marsh., 488; Moore v. Armstrong ,%
Port.. 697; Carewy. MoteaU, 2 Edw. Ch., 57.

In this case, the original debtor, Tunstall,
has died insolvent. Whiting, his surety, has
died insolvent. A portion of the assets belong-
ing to the estate of the latter is in the hands of
the surety of this administrator. A discoverv
of the amount and nature of the assets in hand,
and their application to the payment of the
debt, are required, if they are subject to the ap
plication.

We conclude that the circuit court was au-
thorized to entertain this suit^ and that the de-
decree dismissing the bill is erroneous.

Decree reversed.

Cited— 7 Wall., 430: 9 Wall.. 765: SCllir., 10(1, 188; 2
Woods, 421 ; 19 Blatcbf., 109: 1 Flippin. 71 ; 10 Biss.,

197.

EDWARD H. CASTLE. ELIHU GRANGER
AND J. P. PHILLIPS, Survivors of Josbph
FiiiKiNs. Deceased, Plffe. in Br.,

EDWARD F. BULLARD.
(See 8. C, 23 How., 172-190.)
OircuU courts, power of to nonguit^-<me of 8et)eral
defendants — separtUe verdiet — co-defendant as
a witness — evidence in cases of fraud — positive
proof— circumstantial — liability of partners —
instrueUoTis to jury — when subject of error.

Circuit courts have no power to grant a peremp-
tory nonsuit a^nst the will of the plaintiff.

42i

At common law, there cannot reirularly be a noo-
suit as to one and a verdict as to others ; whenever
it appears that there is evidence in a case to
chanpe one or more of the defendants, which was
proper to be submitted to the jury, as matter of
law, it was not error to overrule the motion for
nonsuit, even if the authority to grant it was con-
ceded.

If a defendant, who is a material witness for the
other defendants, has been improperly Joined In a
suit for the purpose of excluding his testimony,
the jury will be directed to find a separate verdict
in his favor ; in which case, the cause being- at an
end with respect to him, he amy be admitted as a
witness for the other defendants.

But if there be any evidence against him, then he
is not entitled to a separate verdict. His guilt or
innocence must await the general verdi<^ of the
ury* who are the sole judges of the fact.

Courts are not agreed as to what stage of the
trial the party thus improperly joined may insist
upon a verdict in his favor.

In cases of fraud, other wrongful acts of the d^
fendant are admissible in evidence, as tending to
show the intent In respect to the matters imme-
diately Involved in the issue on trial.

Positive proof of fraudulent acts is not generally
to be expected, and for that reMson. among others^
the law allows a resort to circumstances, as the
means of ascertaining the truth.

Whenever the necessity arises for a resort to cir^
cumstantial evidence, objections to testimony on
the ground of irrelevancy are not favored.

Circumstances altogether inconclusive, if sepa*
rately considered, may, by their number and joint
operation, especially when corroborated by moral
coincidences, be sufficient to constitute conclusive
proof.

Where the goods were in the custody of partners^
for sale on commission, and one of the partners
made false and fraudulent representations as to the
party to whom thev were to be sold by them, the
partnership is liable, if, in consequence of such
representations, the plaintiff consented to the sale
to that party, and the sale was actually made by
the firm to the party.

Instructions given by the court at the trial are
not, as a general rule, to be regarded as the subject
of error on account of omissions not pointed out
by the excepting party.

If the defendants had asked that further and
more explicit instructions should be given, and Uie
prayer had been refused, this objection would be
entitled to more weight.

Where explanations immediately preceded the
instructions embraced in the exceptions, the in-
structions excepted to must be considered in con-
nection with those explanations.

Argued Jan. 19, I860. Decided Jan. SO, 1860.

TN ERROR to the Circuit Court of the Unit-
1 ed States for the Northern District of Illi-
nois.

This action was brought in the court below,
by the defendant in error, to recover dama^iiea
resulting from an alleged breach of trust. The
trial resulted in a verdict and judgment in
favor of the plaintiff for $2,983.82. with costa
amounting to |i51.72, whereupon the defend-
ants sued out Uiis writ of error.

The facts of the case are very fully stated in
the opinion of the court.

Mr. T. Lyle Dickey, for the plaintiffs in
error:

1 . There is no proof that defendant. Granger^
had anything to do with the sale by Ballard, or
was in anv way connected with the firm of Fil-
kins, Phillips & Co. Defendant in error refers,
in his brief, to a letter by E. H. Castle, and
printed business card attached, as connecting
Granger with this firnL In relation to that. I
say it was no part of plaintiff's evidence in chief.

2. It does not sustain the declaration. It
shows a different firm, with a different style and
different partners from that alleged, and last,
that Granger is in no way connected by proof
with, or responsible for, that letter and card.

64C.&

1859.

Casilb y. Bullard.

171^190

and never saw it in his life. Tlie act of one
alleged partner is no proof against another,
until the partnership is proved.

8 Campbell, 240, 812; 14 East, 226; 16 East,
169; 2 Stark. Kv.,81.

No attempt is made to show that at the time
of Ballard's sale, £. S. Castle had ever failed to
meet an engagement, or pay a debt at maturity,
or that he was not in eood credit, or that any
one of the recommendations given him were
untrue; in fact, we deny that ms failure to pay
his debts three months after, tends to show
that he was unfit to be trusted. November 8,
1855.

6 Mon , 119.

It is conceded that the condition of a man's
affairs may be shown by a comparison of all
his assets with his liabilities. But before any
comparison can be made, you must find some
evidence showing that you probably have all
his assets. Now, no one of the witnesses pre-
tendefl that he even supposed that he had given
all of E. 8. Castle's effects at any one place.
Now, the burden lies on the plaintiff to show
the want of means of E. 8. Castle, and he pro-
duces witnesses who do not pretend to have
any knowledge of his affairs, and the court
allows them to swear that they do not know of
his having more than $5,000 of goods in Du-
buque, in January, and the like.

This evidence was baseless and deceptive,
and ought to have been excluded.

The refusal to allow a separate verdict as to
Granger, against whom there was no proof , in or-
der that the other defendant might use him as a
witness, was erroneous. There was once some
difference of opinion as to this right, but in
Phil. Ev., 8th ed.. 59, it is said: " It is now
well settled by the unanimous opinion of all
the Judees. that a defendant (in torts) against
whom plaintiff adduces no proof, is entitled to
a separate verdict at once on the close of the
plaintiff's case."

See, also, 2 8tark. Ev., 11, 798, 799.

Whether there be any evidence is a question
of law (IstGreenl, sec. 49; Phil. Ev., 518). and
widle it is true that this court will not review
a question of fact, yet no court can review the
law of a case, without looking to the facts to
which it is to be applied.

All the extraneous evidence in any event
was irrelevant, until plaintiff had 'laid a
foundation for such proof by giving evidence
of the contract set up in the declaration be-
tween plaintiff and defendants as partners; and
to do this, the partnership embracing Granger
had to be proved.

In an action of tort, where a contract is al-
leged as ground of the supposed dutv violated,
such contract must be proved as laid.

PhU. Ev., 856: 2 Saund. PI. <ft Ev., part 1st,
582.

Letters written to E. 8. Castle were irrelevant
and not material to the issue. We next insist
thai the proof of them was incompetent. Proof
that a witness knows the signature of E. H.
Castle, is not proof that the witness knows the
handwriting so as to be competent to express
an opinion as to whether the body of letters are
in £. H. Castle's handwriting.

Copies of these letters were allowed, when
the proof did not tend to show that the originals
were lost.

See 28 H«w.

The defendants offered to prove that whilst
the goods of plaintiff were at 100 Randolph
Street, they were in the possession of E. H. Cas-
tle, and that whilst E. 11 . Castle had possession,
he said that he did not hold the goods on sale,
but was taking care of them for the owner.

This evidence the court excluded, and we
allege, erroneously. The question whether the
^oods were in the possession of E. H. Castle or
m the possession of the firm, was material to
the issue. The declarations of Castle were com-
petent to explain the nature of his possession.
The same que^ion in another form was made
and ruled the same way , and defendants excepted
on page 78.

1 Stark. Ev., 84, 85, 48, 62. 68, 64; 2 Stark.
Ev., 401 ; 1 Greenl.. sec. 108, 109; 8 Marsh., Ey.,
895, 898 ; 5 Little, 5 ; 2 J. J. Marsh. , 884 ; 4 Litt. ,
24; 5 Dana. 240.

Lastly, the charge of the court was erroneous. '
The court said :

1st. ** If the goods were in the custody of the
defendants, for sale on commission, and one or
more of the partners made false or fraudulent
representations as to the party to whom they
were to be sold bv the defendants, then the
partnership would be liable; if, in consequence
of such representations, the plaintiff consented
to the sale to that party, and the sale was act-
ually made by the firm to the party."

This, clearly, is not a sound proposition, unless
you add to it that the party to whom the sale
was made was actually unworthy of the credit,
and by reason thereof, the debt was likely to
be lost. The fact is, the whole record shows
that the plaintiff and the court assumed, with-
out proof, that E. S. Castle, at the time of the
sale, was unfit to be trusted, and that E. H.
Castle and Filkins knew this to be so, and by
the hearing, and finally thechareeof the court,
the jury were taught to assume Uie same thing.
It is only on this assumption that proof of mere
purchases of Koods by E. S. Castle were treated
as so many frauds actually perpetrated, and
every favorable word about £). S. Castle. spoken
by E. H. Castle and by Filkins, were assumed
on the trial by the plamtiff as so many willful
lies for some dishonest purpose; and the court,
by its general course of ruhng, gave sanction to
the assumption, and led the Jury to do so.

The error in the second article of the charge
consists in a false and erroneous idea expressed
in the exception. The court says that upon
a certain hypothesis the defendants are not lia-
ble, unless the firm, as a firm, were " party to
such representations. "

If the goods were not in defendant's posses-
sion for sale, but were there merely for safe
keeping, and one of the partners made false
representations touching the solvency of a pro-
pc»ed purchaser, and thus plaintiff was in-
duced to sell and did make the sale himself, it
is not perceived how it is possible that the firm,
as a firm, could be *' a party to the representa-
tions."

Mr. E. F. Bullard, in person, and Mr. R.
H. Gillety for defendant in error:

The defendant's exceptions present but two
substantial law questions.

1. Whether evidence of other acts was ad-
missible.

2. Whether the defendants were liable aa
partnersw

48&

172-190

BUFRBMB COUBT OF TRB UnTTBD STATM.

Disc. Term,

1. The plaintiff may proTe subaequent acts of
fraud and collusion to obtain goods from other
persons, in order to show the previous intent of
the defendant, and which the Jury might infer
from circumstances.

Allwm ▼. Matihim, 8 Johns.. 285; 2 H.
Black., 288; Van Kvrk ▼. WMb, 11 Barb., 526.

Such acts, prior or subsequent about the same
time, are admissible with a view to the qiu>

Cofty V. Hotaaing, 1 Hill 816.

See English cases, cited by Cowen, «/., same
principle, approved by the Court of Appeals of
New York.

HaU ▼. Naylor, 18 N. Y., 589.

2. It was competent to prove the amount of
.goods on hand in store of £. S. Castle, the
amount of his debts, his general embarrassment,
and all acts to show his pecuniary condition,
with a view to show the defendant's statements
to be false and fraudulent.

This answers defendant's exception and
others of that class.

The judgment in favor of Filkips, against E.
S. Castle, was admissible on same ground, and
also to prove that Filkins had knowledge when
he made representations to the contrary.

Allen V. Addington, 7 Wend., 9.

8. The defendants being partners,and as such
having sold the ^oods and received the $ 1 85 com-
mission and freight, were Jointly liable.

Story, Part., sec. 181.

The act was within their regular business as
commission merchants.

" If one of a firm of commission merchants
should sell goods consigned to the partnership
fraudulently, or in violation of instructions, all
the partners would be liable for the conversion,
in an action of trover.

Story,Part.,sec.l66; Coll. Part., sec. 6, pp. 804/
806, 2d ed. ; NicoU v. Olennis, 1 Maule. & S. ,
588; Olmsted v. HotaOing, 1 Hill. 817.

4. Upon the merits the defendants were
clearly liable, and the first instruction is correct.

8 Johns.. 1^5; 7 Wend., 9; Beanv, Bemway,
17 How. Pr., 90; Zatniskie v. amiih, 18 N. Y.
822.

5. The loss of the original letters was suffi-
ciently ^own.

There is no doubt that the originals were in
the handwriting of defendant, Castle, and that
these were correct copies, so that the defend-
ants were not injurea by the absence of the
originals.

Mr, JuHiee ClilFord delivered the opinion
of the court:

This was a writ of error to the Circuit Court
of the United States for the Northern District
of Illinois.

Edward F. Bullard, a citizen of the State of
New York, complained in the court below of
Joseph Filkins. J. P. Phillips, Elihu Granger,
and £dward H. Castle, in a plea of trespass on
the case, allegine, at the same time, that they
were partners, doing business as commission
merchants at Chicago, in the State of Illinois,
under the style and firm of Filkins, Phillips &
Company.

According to the transcript, the declaration
was filed on the 7th day of July, 1856. As
amended, it contained five counts, setting forth,
in various forms, two distinct grounds of com-

426

plaint against the defendants, which may be
briefly stated as follows:

In the first place, it is alleged that the de-
fendants, on the 8th day of November, 1855.
fraudulently sold on credit, at Chicago, to one
Edward S. Castle, certain goods belonging to
the plaintiff, and which he had previously in-
trusted to them, as commission merchants, for
sale; and that the purchaser, at the time of the
sale, was in failing circumstances and irrespon-
sible ; charging, in the same connection, that the
defendants, at the time of the transaction, well
knew that the purchaser was insolvent, and
wholly unfit to be trusted; and that they nego-
tiated the sale with intent to deceive and de-
fraud the plaintiff, whereby he suffered loss to
an amount equal to the value of the goods so
sold and delivered.

He also alleged, in other counts, that the de-
fendants, prior to the sale of the goods, and at
the time when it was made, represented to him
that the said Edward H. Castle was worth at
least eight thousand dollars above all his lia-
bilities; that he was not embarrassed in his
business affairs, or much indebted, and that he
was a safe, cautious business man, and every
way worthy of credit. Those representations,
the plaintiff alleged, were false, and that the
defendants well knew they were so at the time
of the negotiation, and when the goods were
delivered; and that they were so made bv the
defendants with intent to deceive and defraud
him in the premises, and had the effect to in-
duce him to consent to the sale, and to deliver
the goods, whereby he suffered loss, as is al-
leged in the other counts.

To those charges, as more formally set forth
in the several counts of the declaration, the de-
fendants Jointly pleaded that they were not
guilty; and on the 8d day of January, 1857,
the parties went to trial on that issue.

Testimony was introduced by the plaintiff in
the opening, showing that Filkins, Phillips &
Co. , were commission merchants at the time of
this transaction, doing business at Chicago, in
the Slate of Illinois, and that they received the
goods in Question a short time prior to the sale,
from one WtlHam H. Adams, of that city, to
whom the goods had previously been sent by
the plaintiff to be sold on commission. He also
proved the sale of the goods by one of the firm
of Filkins, Phillips & Co., to Edward H. Castle,
on credit, substantially as alleged in the decla-
ration, and that two of the partners and the
clerk of the firm were present at the time the
sale took place.

Facts and circumstances were also adduced
by the plaintiff, tending strongly to show that
the purchase was largely indebted and in fail-
ing circumstances at the time of the negotiation,
and that two or more members of the firm must
have known that he was insolvent and utterly
unworthy of credit.

Five per cent, was charged as commissions on
the sale of the goods, amounting to the sum of
$135; and the plaintiff introduced testimony
tending to show that the purchaser, as a part of
the transaction, gave his promissory note to the
firm , payable in forty-five days, to secure that
amount.

Evidence was also introduced by the plaint-
iff, showing that representations as to the busi-
ness circumstances and pecuniary responsibility

•4 U.S.

1866.

Oastlb t. Bullabd.

172-190

of the purchaser were made to him at the time
of the sale, by one or more of the defendants,
substantially in the manner as alleged in the
declaration. And it was clearly shown that two
or more of the firm well knew that those rep-
resentations were false, and that the subject of
them was wholly unfit to be trusted for that
amount.

Proof was also introduced by the plaintiff,
showing that the purchaser was a relative of
one of the firm, and that he had repeatedly
been assisted by others in obtaining credit.
And many of the circumstances were of a char-
acter to (uford a ground of presumption that
all tiie defendants must have known the true
state of his affairs, and that he was insolvent.

When the plaintiff rested his case, in the
opening, the counsel of the defendants moved
the court to order a nonsuit as to the defendant
(Graneer), upon the ground that the evidence
offered by the plaintiff did not tend to charge
him with a participation in the fraud alleged In
the declaration. At that stage of the cause,
there was no evidence immediately connecting
him with the transaction, except what might
properly arise from the fact of his being one of
the partners. But the court overruled the mo-
tion for a nonsuit, and the defendants excepted.

They then req^uested the court, that the jury
might be permitted to retire, and consider
whether the evidence introduced was sufficient
to charge this defendant; and if not, that the
jury might be directed to find him not guilty,
urging,a8 a reason for the motion, that they de-
sired to examine him as a witness for the other
defendants ; but the court overruled the appli-
cation, and the defendants excepted.

After these motions were overruled, evidence
was introduced by the defendants, and further
evidence was given by the plaintiff; all of
which was submitted to the jur^, who returned
their verdict in favor of the plaintiff.

Numerous exceptions were taken by the de-
fendants in the progress of this trial to the rul-
ings of the court, in admitting and rejecting
e^dence, and they also excepted to two of the
instructions given by the court to the jury.

1. As the facts have been found by the jury,
the questions to be determined are those that
arise upon the exceptions. Of these, the first in
the order of the argument at the bar is the one
founded upon the refusal of the court to order
a nonsuit as to the defendant (Granger), as re-
quested by counsel at the close of the plaintiff*s
testimony.

Several answers ma^ be given to this com-
plaint, each of which is sufficient to show that
the exception cannot be sustained. In the first
place, circuit courts have no power to grant a
peremptory nonsuit against the will of the
plaintiff. It was expressly so held by this court
in Elmore v. Qrymes, 1 Pet., 497, and the same
r\ile was also affirmed in De Wolf v. Babaud^ i
Pet. , 497. In the case last named, the defend-
ants at the trial, after the evidence for the
plaintiff was closed, moved the court for a non-
suit; which was denied, and the defendant
excepted, and sued out a writ of error; but this
court held that the refusal to grant the motion
constituted no ground for the reversal of the
judgment, remarking at the same time, that a
nonsuit cannot be ordered in any case without
the consent and acquiescence of the plaintiff.

See 28 How.

Repeated decisions have been made to the
same effect; and as long ago as 1882 it was de-
clared, as the opinion of this court, in Crane v.
Morris, 6 Pet. , 609, that this point was no longer
open for controversy. See, also, SiUby v. Foote,
14 How., 222.

Another answer to this complaint arises from
the fact that the motion for nonsuit is inap pro-
priate in a case like the present, where there are
other defendants to whom it cannot be applied.
In actions of this description, where there is
more than one defendant, the charge, beyond
question, as a general rule, is joint and several,
and consequentlv, one may be found guilty and
another not guilty; but at common law there
cannot regularly be a nonsuit as to one, and a
verdict as to others, and for that reason, when-
ever it appears that there is evidence in the case
to charge one or more of the defendants, a non-
suit is never granted at common law, even in
jurisdictions where the authority to grant the
motion in a proper case is acknowledged to ex-
ist Bgfiett V. Braum, 2 M. & P., 18; Collier on
Part. (Am. ed.. 1848), sec. 809, p. 698.

But a more decisive answer to this ground of
complaint arises from the fact that there was
evidence in the case tending to charge this de-
fendant, which rendered it proper that the ques-
tion of his guilt or innocence should be sub-
mitted to the jury. He was a member of the
firm of Filkins, Phillips & Co. , as appears by
the bill of exceptions. All of the goods in Ques-
tion were deposited in their warenouse, and the
jury have found that the goods were sold by
the firm. Two of the partners and the clerk of
the firm were present at the sale, and the com-
missions earned in transacting the business
went to the benefit of all the partners of which
the firm was composed.

In view of all the circumstances, as disclosed
in the evidence, it would be impossible to say,
as matter of law, that it was error in the court
to overrule the motion, even if the authority to
grant it were conceded.

We come now to examine the second excep-
tion, which arises out of the refusal of the court
to permit the jury to retire at the close of the

Sliuntiff's case, and consider whether the evi-
ence offered in the opening was sufficient to
charge this defendant with a participation in
the fuleged fraud.

Upon this subject the general rule is, that if
a defendant, who is a material witness for the
other defendants, has been improperly joined
in the suit, for the purpose ot excluding his
testimony, the jury will be directed to find a
separate verdict in his favor; in which case, the
cause being at an end with respect to him, he
may be admitted as a witness for the other de-
fendants. This course, however, can be allowed
only where there is no evidence whatever
against him, for the reason that then onl^ does
it appear that he was improperly joined m the
suit, through the artifice and fraud of the
plaintiff. If there be any evidence against
him, then he is not entitled to a separate ver-
dict, because, under such circumstances, it does
not appear that he was improperly joined, and
his ^uilt or innocence must wait the general
verdict of the jury, who are the sole judges of
the fact. 1 Greenl. Ev., sec. 858; Brown v.
Howard, 14 Johns., 122.
Courts of justice are not quite agreed as to

487

17»-190

BUFRKIOE Ck>UBT OF THB UnETBD StaTBS.

Dbc. Tbbm,

what stage of the trial the party thus improp-
eriy joined in the suit may insist upon a ver-
dict in his favor — whether at the close of the
evidence offered by the plaintiff in the opening,
or whether he must wait until the case is clos^
for the defendants. Mr. Greenleaf regards it
as the settled practice, that if. at the close of the
plaintiff's case, there is one defendant against
whom no evidence is given, he is entitled in-
stantly to be acquitted ; and it must be admitted
that the decision of the court in ChUdv. Cham-
berlain, 6 C 4& P., 218, favors that view of the
law. But Lord Denman held, in 8oweU v.
Champion, 6 Ad. & Ell.. 415, that the applica-
tion to a judge in the course of a cause, to di-
rect a verdict for one or more defendants in
tresspass, is addressed to his discretion, and
that the discretion was to be regulated, not
.merel;y' by the fact that, at the close of the
plaintiff's case, no evidence appears to affect
them, but by the probabilities whether any
such will arise before the whole evidence in the
cause closes. There is, says the learned Judge,
so palpable a failure of justice, where the evi-
dense for the defense discloses a case against a
defendant already prematurely acquitted, that
such acquittal ought never to take place until
there is the strongest reason to believe that such
a consequence cannot follow.

Some courts hold that the application, in all
cases, is addressed to the discretion of the
court. Brotherton v. LivingHton, 3 Watts &
S. , 884 ; 1 Holt. {N. P. ), 275. Other courts have
held, that where there is no evidence to affect a
particular defendant in actions ex delicto against
several, a separate verdict is demandable as a
matter of right, and that a refusal to grant the
application is the proper subject of exceptions.
van Deusen v. Van Slyck, 15 Johns. , 228 ; Baie»
V. ConkUng, 10 Wend., 889.

Wliatever diversities of decision there may
be upon this point, all agree that the applica-
tion ought not to be granted, unless it appear
that there is no evidence to affect the party in
whose favor it is made. Brown v. Howard,
14 Johns., 122. Now, it has already appeared
that there was evidence in this case affectine this
defendant; and upon that ground, we hold that
the circuit court was fully warranted in re-
fusing to grant the application.

8. After a careful consideration of the sev-
eral exceptions to the rulings of the court in
admitting and rejecting evidence, we are of the
opinion that none of them can be sustained.
Considering the great number of the exceptions,
their separate examination at this time will not
be attempted, as it would extend this investi-
gation beyond reasonable limits. One class of
them arises out of objections to the admissi-
bility of evidence offered by the plaintiff, tend-
ing to show that the defendants, or some of
them, had aided the purchaser in this case in
committing similar acts of fraud in the pur-
chase of other goods, about the same time, from
other persons. According to the evidence,
some of those purchases were prior and others
subsequent to the period of the sale of the goods
in this case. All of this class of exceptions
may well be considered together, as they in-
volve the same general principles in the law of
evidence. Decided cases have established the
doctrine that cases of fraud like the present are
among the well recognized exceptions to the

48g

general rule, that other wrongful acts of the de-
fendant are not admissible in evidence on the
trial of the particular charee immediately in-
volved in the issue. Simuar fraudulent acts
are admissible in cases of this description, if
committed at or about the same time, and when
the same motive may reasonably be supposed
to exist, with a view to establish the intent of
the defendant in respect to the matters chai^ged
against him in the declaration. AjBsuming the
proposition, as stated, to be correct, of which
there can be no doubt, it necessarily follows,
that no one of this class of exceptions is well
taken. Some of the decided cases go farmer,
and hold that such evidence is admissible, as
affording a ground of presumption to prove
the main charge; but, whether so or not, it is
clearly competent, as tending to show the intent
of the actor in respect to the matters immedi-
atelv involved in the issue on trial. Cory v.
HotaiUng, 1 Hill, 816; Irving v. MoOey, 7
fiing.. 548; Bowleg v. BigeUno, 12 Pick., 807.
Another class of the exceptions arises out of
objections made by the defendants to the ad-
missibility of evidence introduced by the
plaintiff, which, it is insisted, was irrelevant
and immaterial. Some twelve exceptions are
embraced in this class, and they are addressed
to a large portion of the testimony introduced
by the plamtiff.

In the course of the trial, the plaintiff offered
evidence tending to show the pecuniary cir-
cumstances of the purchaser of these goods,
his acts and conduct in respect to the goods
after the purchase, and that he was largely in
debt and insolvent.

He also introduced evidence tending to show
that two or more of the defendants had repre-
sented to other persons, about the same time,
that the purchaser of the goods in question was
in good standing, and that they had likewise
assiHted him in obtaining credit with other
dealers in merchandise.

To all, or nearly all, of this evidence, as more
fully detailed in the transcript, the defendants
objected, and those objections constitute the
foundation of the several exceptions included
in this class. Much of the evidence was of
a circumstantial character; and it is not going
too far to say, that some of the circumstances
adduced, if taken separately, might well have
been excluded. Actions of this description,
however, where fraud is of the essence of the
charge, necessarily give rise to a wide range of
investigation, for the reason that the intent of
the defindant is, more or less, involved in the
issue. Experience shows that positive proof of
fraudulent acts is not generally to be expected,
and for that reason, among others, the law al-
lows a resort to circumstances, as the means of
ascertaining the truth. Great latitude, says
Mr. Starkie, is justly allowed by the law to the
reception of indirect or circumstantial evidence,
the aid of which is constantly required, not
merely for the purpose of remedying the want
of direct evidence, but of supplying an invalu-
able protection against imposition. 1 Stark.
£v., p. 58.

Whenever the necessity arises for a resort to
circumstantial evidence, either from the nature
of the inquiry or the failure of direct proof,
objections to testimony on the grounds of irrel-
evancy are not favored, for the reason that- the

1809.

Bhbi^don y. Clifton.

481-484

force and effect of circumcitantial facts usually
and almost necessarily depend upon their con-
nection with each other. Circumstances alto-
gether inconclusive, if separately considered,
may, by their number and joint operation, es-
pecially when corroborated by moral coinci-
tiences, be sufficient to constitute conclusiye
proof. Applying these principles to the seyer-
al exceptions under consideration, it is clear
clear that no one of them can be sustained.

Other exceptions to the rulings of court were
taken during the progress of the trial ; but it is
so obvious that they are without merit, that we
think it unnecessary to give them a separate
examination at the present time, and they are
accordingly overruled.

At the argument, it was supposed by the
counsel of the original defendants that the cir-
cuit judge had allowed the plaintiff to intro-
duce parol proof of the contents of a writ of
attachment, referred to bv one of the witnesses;
but, on examination of the transcript, we find
that no such evidence was admitted.

4. Exceptions were also taken to certain por-
tions of the charge of the court . On this branch
of the case, most reliance was placed upon cer-
tain objections to the first instruction given to
the jury, which is as follows:

'* If the goods were in the custody of the de-
fendants, for sale on commission, and one or
more of the partners made false and fraudulent
representations as to the party to whom they
were to be sold by the defendants, then the
partnership would be liable, if, in consequence
of sudi representations, the plaintiff consented
to the sale to that party, and the sale was act-
ually made by the firm to the party."

Some criticisms were also maide in the printed
argument for the defendants upon the sec-
ond instruction, which, like the former, was
duly excepted to; but, inasmuch as it is not es-
sentially different in principle from the other,
and as the questions presented in each depend
upon the same general considerations, it will not
be reproduced.

Both instructions were framed upon the
theory that the defendants were not liable, un-
less the jury found from the evidence that the
goods were actually sold by the firm; which, to
say the least of it, was a theory sufficiently
favorable to the defendants. Judge Story says,
in his valuable work on partnerships, that torts
may arise in the course of the business of the
partner^ip, for which all the members of the
firm will be liable, although the act may not, in
fact, have been assented to by all the partners.
Thus, for example, if one of the partners
should commit a fraud in the course of the
partnership business, all the partners may be
liable therefor, although thej may not all have
concurred in the act. So, if one of a firm of
commission merchants should sell goods con-
signed to the firm, fraudulently, or should sell
goods so consigned in violation of instructions,
all the partners would be liable. Story on
Part., sec. 1«6; Collier on Part. (Am. ed..
1848), sees. 445 and 457; NieoU v. Glennie, 1
Maule& S., 588.

In precise accordance with this view of the
law, it is said, and well said, by the court, in
Olm$ted V. HotaiUng, 1 Hill, 818, that it does
not lie with one to claim property through the
fraudulent act of another, whether partner or

See 88 How.

agent, without being affected by that act the
same as if it were his own ; and we think the
same principle must apply in a case like the
present, where a firm doing business as com-
mission merchants have received the fruits of
the fraud in the commissions earned for trans-
acting the business.

Where one. assuming to be an agent, had
committed a fraud in a sale, it was held, in
Taylor v. Oreen, 8 Car. & P., 816, that the
mere adoption of the sale and the receipt of the
money, by the person for whom the sale was
made, rendered him liable for the fraud.

Suffice it to say, without any further reference
to authorities, that the theory of the instructions
was sufficiently favorable to the defendants.

6. Complaint is also made that the instruc-
tions excepted to were not sufficiently compre-
hensive; that they did not embrace all the ele-
ments which constituted the charge, as laid in
the declaration. Strong doubts are entertained
whether this point is properly raised by the bill
of exceptions; but whether so or not, we are
satisfied that the exception cannot be sustained.
Instructions given by the court at the trial are
entitled to a reasonable interpretation; and if
the proposition as stated is correct, they are not,
as a general rule, to be regarded as the subject
of error, on account of omissions not pointed
out by the excepting party. Seven requests
for instructions to the jury were presented by
the counsel for the defendants, every one of
which was given by the court, without any
qualification. If the defendants had supposed
that the instructions given were either indefi-
nite or not sufficiently comprehensive, they
might well have asked that further and more ex-
plicit instructions should be given; and if they
had done so, and the prayer nad been ref useo,
this objection would be entitled to more weight.

But another answer may be given to this ob-
jection, which is entirely conclusive aeainst it.
On recurring to the transcript, we fina that the
court, before the instructions excepted to were
given, explained to the jury the nature and
character of the char^, describing substantially
the two forms in which it was presented in the
several counts of the declaration; and, in effect,
instructed them that it must be proved in the
one or the other of those forms, in order to en-
title the plaintiff to a verdict in his favor.
Those explanations immediately preceded the
instructions embraced in the exceptions, and,
in fact, may be regarded as a part of the same.
Beyond question, the instructions excepted to
must be considered in connection with those
explanations: and when so considered, it is ob-
vious that this objection cannot be sustained.

In view of the whole case, we think the de-
fendants have no just cause of complaint, and
that there is no error in the record.

The judgment cf the circuit court, therefore, is
affirmed, with costs.

S. C— 22 How., 187.

Clted-7 Wall., 189: 10 Wall., 872; 18 Wall., 466; 16
WaU.,.5l6,6Q2: 18 WaU.. 260; 2 (;ilff., 801, 291. 196.
680 : 9 Otto, 659 : 8 Cliff., 23R. 806 ; 4 Cliff., 74 ; 10 Biss.,
417 ; 24 Am.,'148 (49 Vt., 866).

WILLIAM H. SHELDON, Claimant of a
Quantity of Cotton, &c., Appt.,

JOHN ciilPTON.

(See S. C, 28 How., 481-484.)

489

lOft-117

BUFBBMS COUBT OF THB UhITBD StaTBS.

DXC. TXBM,

Juriadiction dependent on amaunt'-eepaTate
amaunU adjudged against two defendants—
when both must bring appeal.

Where a Ifbel was filed to recover frelflrbt on cot-
ton, and a decree rendered, in favor oftne libelant,
for the amount of the freight, 12,888.06, and that
B. pay to the libelant $688.84 thereof, and that 8.
pay $1,754.28 thereof, and 8. appealed from the de-
cree to this court, the court dismissed the appeal,
on the ffround that the decree asralnst 8. is less
than $2,000.

The f reiffht was separately awarded a^rainst the
claimants, in proportion to the cotton shipped by
each one, and the rights of each were distinct and
independent. , . , ^^^

But if it were otherwise, and the whole of the
freight was jointly decreed against the claimants,
the appeal must still be dismissed, as then both the
claimants should have Joined in it.

Argued Jan, B7, 1860. Decided Feb, 6, 1860,

APPEAL from the Circuit Court of the Uni^
ed States of the Southern District of New
York.

The history of the case and a statement of
the facts appear in the opinion of the court.

On motion to dismiss for want for jiuisdic-
tion.

Messrs. Owen A; Vose, for appellant:

The "matter in dispute" in this action was
the freight upon the entire cargo, which, ac-
cording to the decree, amountea to $2,888.06,
exclusive of costs. Unless the apportionment
of this sum between the claimitnts, which the
circuit court assumed to make, operates as a
severance of the action, the motion must be
denied.

The decree of the circuit court directs Shel-
don to pay $1,754.22, together with $586.79
costs, amounting in the aggregate to $2,841.01.

The "matter in dispute^* on this appeal, is
the sum so decreed to be paid for damages and
costs.

The costs referred to in the Judiciary Act
are not those which have entered into and be-
come a part of the judgment appealed from,
but those which may accrue on the appeal.
Such appears to have been the views of this
court in the case of Olney v. The Falcon, 58 U.
S. (17 How.), 19.

Mr, C. Donohue» for appellee:

The record shows that Mr. Sheldon is ordered
and decreed to pay between $1,800 and $1,900,
besides costs, and that Mr. Brower does not
complain of the decree below.

No appeal lies unless the matter in dispute,
exclusive of costs, exceeds the sum of $2,000.

UdaU V. The Ohio, 58 U. S. (17 How.), 17;
(Hneyy, The Fhleon, 58 U. S. (17 How.), 19;
AUen V. Newberry, 62 U. S. (21 How.), 248.

Mr. Justice Nelson delivered the opinion of
the court:

This is an appeal from a decree of the Circuit
Court of the United States for the Southern
District of New York, in admiralty. A motion
has been made, on the part of the appellee, to
dismiss the appeal, for the want of jurisdiction.

A libel was filed hf Clifton, in the district
court, to recover freight on the 269 bales of

Vovn^—JurisdiclUm of U, S. Supreme Court de-
pendent on anumnt. interest cannot be added to
give jwisdicti4m. How value of thing demanded may
he shown. What casts a/re reviewaibU^wUhoulreoard
to sum in eonironerey. See note to Gordon v. Oerden,
28 U.S. (8 Pet.), 88.

480

cotton and 9 bags of wool. Brower and Shel-
don appeared as claimants, and contested the
claim for the freight. Brower claimed sixty-
seven of the 269 bales, and Sheldon two hun-
dred and two bales. The district court dis-
missed the libel.

On appeal to the circuit court this decree was
reversed, and decree rendered in favor of the
libelant for the amount of the freight, $2,888.06 ;
that J. W. Brower, claimant of a portion of the
cotton, pav to the libelant the sum of $588.84,
being the freight on the cotton claimed by him
in the suit, and that the claimant, W. H. Shel-
don, pay for the portion claimed by him the
sum of $1,754.22. Sheldon appealed from the
decree to this court.

The motion is now made to dismiss the ap-
peal, on the ground that the decree against
Sheldon is less than $2,000, and which ia ap-
parent from a perusal of the decree. The sum
decreed acainst him is only $1,754.28.

The freight was separately awarded against
the claimants, in proportion to the cotton
shipped by each one. The rights of each were
distinct and independent.

But if it were otherwise, and the whole of
the freight Jointly against the claimants, the
appeal must still be dismissed, as then the
claimants should have joined in it.

Motion to dismiss, granted.

ated-16WaU.,8i5.

ALBERT CAGE and HENRY HAYS, Ex'ra
of RoBBBT H. Caob, Deceased, Appts,,

ALEXANDER A. CASSID Y bt al.

(See S. C, 88 How., 108-U7.)

Limit of surety's obUgaUon— judgment ^against,
obtaiTied by artifice, reUrffrom.

The natural limit of the obligation of a surety to
to be found In the obligation or the prlncLpal ; and
when thatls eztincrulshed, the surety is, IngeneraU
liberated.

Where the obllflratloa of the principal has been
ascertained by the decree of the court, upon proof
conceded to be sufficient, and has b€»en fully dis-
charged, and the surety has been ** lulled into se-
curity,'* by the delusive promises of hto creditor,
and has been the victim of artifloe and ciroumyen-
tion ; and judgment against him was obtained In
contempt of the injunction of the court : held, a
proper case for his relief and for perpetuating toe
injunction.

Argued Jan, XO, 1860, Decided Feb, 13, I860.

APPEAL from the Circuit Court of the Unit-
ed States for the Southern District of Mis-
sissippi.

The history of the case and a statement of
the facts appear in the opinion of the court.

Messrs. R. J. Breat» SL May and Chac.
E« Phelps, for appellants:

Why had not the Tennessee court full juris-
diction over the case?

Cassidy was in Tennessee, and Cage was
suing in the state court to enforce equitable
claims to a reduction of the note held by Cas-
sidy in his individual character as payee
thereof.

Cage was not enjoining by state process.

HfOTR.—When ajttdgmewt at law wOl be enjoined
ahiUin equity. See note to Davis v. Tillotsoo,
47 U. 8. (6 How.), 114.

64 U.S.

1859.

Cagb v. Cassidt.

109-lir

judsmenlB in the federal courts. He was pro-
ceedtng in the ordinary case in perdtmam upon
a personal contract. It is true that Cassidy,
bdng a citizen in neither State, had a claim to
evade the state Jurisdiction ; but conceding such
a right, he waived it by not adopting a course
required by the Act of Conp;re8S to remove the
case to the federal courts m Tennessee. Un-
doubtedly, the federal courts could not have
enjoined suit in the Tennessee courts.

Ihggs V. WoleoU, 4 Cranch, 179.

Nor have the state courts power to enjoin
judgments in the federal courts.

MeKim v. Voorhies, 7 Cranch, 279.

Cassidy, even if he had any right to the pro-
tection of the federal courts, should have re-
moved the case; but as Cage was not a citizen
of Tennessee, there was no right to remove the
case from the state court.

1 Stat, at L., p. 79.

Courts of chancery have jurisdiction in per-
sonam in cases of contract, fraud, trust, (&c.,
even over real estate in foreign countries.

See 2 Story, Eq. Jur., sec. 743; Penny, Lord
BaiUmore, 1 Yes.. Sr., 464; 8 Gill & J., 504;
Maeae v. WaUe, 6 Cranch, 148; Indiana R. B.
V. Michigan etal,, 15 How., 288.

They have jurisdiction over all contructs
where a person is within the territory.

Storys, Confl. of Laws, sees. 589, 541, 548.

Here is no case of conflict jurisdiction be-
tween the state and federal courts. It is true
they appear to have decided differently; that is,
the federal court held the decree of distribu-
tion to be binding, and Gaffe as creatine a
cause of action when coUatenuly impeachea by
him, and the state court afterwards reversed
the same decree on direct appeal. But the
state court had undoubted authority to reverse
the decree of its own probate court. The ef-
fect of that reversal on any and all courts of
equitv upon the judgments of the federal court
which were predicated on that erroneous de-
cree, is a new and distinct inquiry, certainly
competent for the consideration of the federal
court upon this bill of injunction, and in ref-
erence to the cases therein stated. It is clear
that the decree of distribution alone, entitled
the distributees to sue the surety (5 How. Miss.,
651), and equally clear that the distribution
was illegally made after the letters of admlms
tration were revoked.

8 Sm. <& M., 219.

It further appears, that while the case was
pending in the Tennessee State Court, having
competent jurisdiction thereof, for the pur-
pose of abating and avoiding the note, and in
defiance of the injunction of that court, Cassi-
dy instituted a suit in the Circuit Court of the
United States for the State of Mississippi
against Cage, and recovered judgment on this
very note, which was in litigation between the
parties in Tennessee, notwithstanding the effort
of Cage to defend himself in the premises,
when sued at law.

The Tennessee court had jurisdiction, and if
so, there can be no judicial inspection behind
the decree, except by appellate power.

QHgnon v. A»tor, 2 How.. 841 ; 10 Pet., 449;
2 H. & G., 42; 6 H. & J., 182; 4 H. & J., 894.

The true test of jurisdiction is. whether a
demurrer would lie to Cage's bill in Tennessee.

TomUnson v. MeKaig, 5 Gill, 256.

See 28 How.

Even if this were a case of covenant juris-
diction, the court first having cognizance has
exclusive Jurisdiction .

1 Md. Ch.. 851; 1 Md. Ch., 295; 2Md. Ch.,
42; 7 Gill, 446.

Under the Constitution that decree is just as
conclusive in Mississippi as in Tennessee.

7 Cranch, 481; 8 Wheat., 234; 6 Wheat.,
129; 13 Pet, 812; 5 G. & J., 500; 8 Gill, 51.

A recovery on same cause of action in a sis-
ter State pendente lite, may be pleaded against
further maintenance of suit, though this suit
was brought first

7 Gill, 426.

Defendant at law after judgment may enjoin
judgment on grounds not Known or not avail-
able at trial in court of law^

OoU V. (kvrr, 6 G. & J., 809; 12 G. & J.,
865.

Surely the abatement on cancellation of that
note and its injunction from suit on grounds'of
mistake, or fraud, or failure of con»deration.
was a mere personal demand against Cassidy,.
and to be enforced anvwhere he was found,
on familiar principles of equity.

15 Pet. 283; 1 Wheat. 440; 1 Pet, 1; 4
Cranch. 806.

Here it is conceded that the Tennessee de-
cree, establishing fraud in Cassidy throughout,
was supported by evidence;

8 Pet, 210,

And fraud vacates the judgment, as against
the party.

Slmms V. Slacum, 3 Cranch, 300.

Even after judgment on a note, the defend-
ant may enjoin on ground of fraud in obtain-
ing the note.

4 Pet. 210; 1 Pet, 68.

Jurisdiction once attaching, the court, to do-
complete justice, decides even a legal claim.

5 Pet, 264; 12 Pet. 178.

At law, the failure of consideration in a note
must be total, and here it was partial, as con-
ceded.

2 Wheat, 18.

Even if the note of Cage had been given U>
Cassidy, in his character of administrator, it
was the mere ]>er8onal chose in action, and his-
title of administrator would have been sur-
plusage.

Qrdham v. JFhhnestock, 5 Gill, 215.

Messrs, J. H. Bradley and J. M. Me*
Calla, for appellees:

First The decree of the probate court, as-
certaining the amount due by the adminis-
tration, remains unreversed.

The court had exclusive and conclusive ju-
risdiction over the subject-matter of contro-
versy;

OHdariv, Starke, 1 How. Miss.. 450; Orif-
ftth V. Vertner, 5 How. Miss., 786.

Provided the proper parties were before them
or due notice was given.

HaUy. Ca8gidy,26 Miss., 48.

Second. The court of Tennessee had no ju-
risdiction to settle the accounts of administra-
tors, deriving their authority from the State of
Mississippi.

Vaugnan v. Northup, 15 Pet, 1; Bea v.
Suddeth, 2 Sm. & M., 532.

And the appearance of Cassidy could not
give them jurisidiction, whether he had admit-
ted or denied it

48t

lOft-117

Supreme Court of the Unitbd States.

Dec. Term,

There was no fraud charged, nor any con-
tract or agreement set up in the Tennessee bill,
which gave that court jurisdiction over Cassi-
dj, so as to prevent his proceeding in the fed-
eral court in Mississippi to coerce the payment
of this note.

The Circuit Court in Mississippi had exclu-
sive jurisdiction over that question, and was
open to the complainant, Cage.

MeKim v. Voorhies, 7 Cranch, 279.

Third. The reversal of the decree of distri-
bution on the probate court, neither satisfies
the equity between these parties nor destroys
the consideration which was the foundation of
that note, because the amount ascertained bv
the only competent authority to be due still
stands a judgment, and in the absence of cred-
itors, belongs to the distributees of the estate.

2d. The note was given by Cage with full
knowledge of the circumstances, and when he
might have resorted to his present application
for relief, when he might have convened the
parties in the Probate Court of Madison County,
and have had the decree on the account opened,
if there was jurisdiction to do so.

But there was no such jurisdiction, either in
that court or in a court oi equity.

Hendricks v. Huddlegton, 5 Bm. & M., 422,
426; TumlmUy. EndieoU, 8 Sm. & M., 802
QriffUh V. Veriner, 5 How. Miss., 786.

The settlement of that account is final and
conclusive.

Finally. If Cassidy procured the decree for
account by fraud, or especially if consideration
on which the note was given was fraudulent,
and the note was given on false and fraudulent
representations of Cassidy, these defenses
would have been good defenses in the suit at
law on the note. They were not set up; Cage,
therefore, has by his own laches lost his equity,
if he had any.

Mr. Jtmtiee Campbell delivered the opinion
of the court:

R. H. Cage, the testator of the appellants,
filed his bill in the circuit court, to be relieved
from a judgment rendered there in favor of the
appellee (A. A. Cassidy), in November, 1852.

The pleadings and proofs contained in the
record disclose that the testator, in 1841, be-
came surctv to the Probate Court of Madison
Oounty, Mississippi, for William Douglass and
William Hall, on their bond, as administrators
of the estate of Henry L. Douglass, deceased.
In 1848, their letters of administration were re-
voked ; and Cassid v. the husband of Mary Doug-
lass, the widow of Henry L. Douglass, and the
guardian of Henrietta Douglass, their only
child, was appointed administrator (20 d^nii non.

In 1849, the probate court cited the adminis-
trators to account, and upon their non-appear-
ance rendered a decree against them for $6,-
822.87, and subsequently ordered, that pavment
should be made to Cassidy and wife and Henri-
etta Douglass— one moiety to each, being their
legal share; and in default of paynient author-
ized a suit on the administration bond. In
1850, suits were instituted on the bond against
Cage, the surety, in the circuit court, by Cassid}'
and Henrietta Douglass; but no suit was com-
menced against the principals, who resided in
Tennessee. Judgments were rendered in 1851
against Cage, for the amount of the decree; and

482

these were settled by his giving a note to Cassidy
for their amount, payable one year after date,
and by paying the costs.

During the year 1851 , Cage visited Tennessee,
with a view to have a settlement between
Douglass and Hall, his principals, and Cassidy.
and to obtain an indemnity from those who had
induced him to sign their bond. His negotia-
tions were unproductive; and he filed a bill in
the Court of Chancery in Sumner County,
Tennessee, to which Cassidy and wife, Hen-
rietta Douglass, and Douglass and Hall, and
others, were made parties.

In this bill he stated his relation as surety,
and his legal claim to be exonerated from ills
obligation, and from his impending danger of
loss. He insisted that his creditors, the dis-
tributees, and his principals, the administrators,
should adjust their accounts, and that the bal-
ance should be settled. He charged that he had
not made defense against the judgments in
Mississippi, because the defendant. Cassidy,
had assured him that he was not to be vexed or m -
lured, and the suit was simply to serve as an
instrument to brine his absent principals to a
fair settlement. He charges that the account
stated in the probate court was erroneous, with-
in the knowledge of Cassidy, who had procured
it, and that the balance was subject to credits
that he knew to be just. He obtained an in-
junction against Cassidy, requiring him not to
transfer his note or to commence any suit upon
it pending the inlunction.

The several defendants answered the bill ; and
in 1854 the cause came on for a hearing upon
pleadings, proofs, orders, and a report upon the
administniion accounts.

Before this time the administrators liad ob-
tained a writ of error upon the judgment ren-
dered in the probate court; and in Jannary.
1858, this judgment was annulled b^ the Court
of Errors and Appeals of Mississippi.

The defendant, Cassidjr, in 1852, notwith-
standing the injunction in Tennessee, com-
menced a suit upon the note of the surety (Cage),
in the circuit court, and in November, 1862.
recovered a judgment for the full amount, and
sued out execution for its collection. There-
upon Cage filed the bill for injunction and re-
lief with which the proceedings in the cause
before this court were commen<Sed.

In this bill he charges that the account, as
stated in the probate court, is unjust. That
Cassid V was aware of the injustice of the duo^es
when they were made. That he had quieted the
mind of the plaintiff, by assurances that he
meditated no harm to him ; but merely expected
to bring the administrators to a fair settlement
bv that course, and only expected to hold the
claim against him for that purpose. He speci-
fies the errors in the account, and the efforts he
had made to bring the parties to a settlement,
and the pendency of his suit in Tennessee.
Cassidy answered the bill, taking issue upon
some of the material averments.

Thus the cause stood when the Court of Chan-
cery in Sumner County, Tennessee, rendered its
final decree in 1854. The court declared that
the settlement in the probate court, the judg-
ments in the circuit court on the bond, and the
execution of the promissory note by Cage in
liquidation, were superinduced by the promises
and assurances of Cassidy to Cage, that he waft

64 U.S.

1650.

Phila., W. & B. R, R. Co. v. PaiLA.. & II. Towboat Co.

209-220

not to be held personally, but they were to be
used to bring the principals to a fair account-
ing. That Cassidy knew that the statement of
the account in the probate court was erroneous,
and unjust to the administrators, and that the
recovery of the judgment on the note of Cage
was a breach of the injunction, and a fraud upon
him.

The court finds, that instead of a debt of $6,-
822.87, as reported against the administrators
in 1849, there was onl^ due the sum of $860.87.
It charges against this sum the costs paid by
Cage in the litigation to which he has been sub-
jected, and required the remainder to be paid
into court; and thereupon entered a decree
against Cassidy, enjoining him from proceeding
further upon the judgment in the circuit court
on the note.

This decree was presented to the Circuit
Court in Mississippi, in suitable pleadings, and
was considered by that court under a stipulation
of the solicitors of the respective parties to this
effect: "It is admitted that proof before the
Chancery Court of Tennessee was sufficient to
establish the state of accounts of Hall and
Douglass, as administrators of H. L. Douglass,
in Mississippi and Tennessee, as decreed by the
Chancellor in the Tennessee case, filed in this
cause as an exhibit. This agreement is made,
in order to dispense with obtaining a copy of the
proof before the Chancery Court of Tennessee,
or retaking the despositions of the witnesses.
In other words, all that is intended to be ad-
mitted hereby, and that is admitted, is that the
decree of said chancery court was supported by
the proof."

Upon the hearing in the circuit court, that
court determined that the injunction which had
been granted in the preliminary stage of this
cause was improvidently allowed, and that the
bill must be dismissed. From this decree this
appeal is taken.

The natural limit of the obligation of a surety
is to be found in the obligation of the principal;
and when that is extinguished, the surety is, in
general, liberated. In some codes, the obligation
of a surety cannot extend beyond or exist under
conditions more onerous than ttiat of his princi-
pal. The obligation of the administrators,
Douglass and Hall, has been ascertained by the
decree of the Court of Chancery in Tennessee,
upon proof, conceded to be sufficient, and has
been fully discharged bv its order. Notwith-
standing this, the appellee (Cassidy) seeks to
enforce a judgment for nearly ten times the
amount of the debt found to be due in that de-
cree, and now discharged. It is apparent that
the effort is unconscionable, and can only be
allowed under the influence of some inflexible
and imperious rule of the court, that deprives
the appellants of any title to its interposition.
But the Court of Chancery of Tennessee, upon
sufficient proof, has declared that the surety had
been "lulled into security" by the delusive
promises of his creditor, and that he has been
the victim of artifice and circumvention; that
the judgment against him was obtained in con-
tempt of the injunction of the court, and that
the assertion of any right under it would be
fraudulent. This decree reniains in full force
and effect.

These circumstances furnish additional mo-
tives for the intervention of the equitable

bee 'Z3 Uow. U. S., Book }M.

powers of the court for the relief of the appel-
lants.

It is the optnpm of this court, that the decree of
the circuit court is erroneous, and must be re-
versed, 7 he cause is remanded, mth directions
to the dreuit court to enter a decree perpetuating
the injunction.

THE PHILADELPHIA. WILMINGTON
AND BALTIMORE RAILROAD COM-
PANY, Appts,,

THE PHILADELPHIA and HAVRE
DE GRACE STEAM TOWBOAT COM-
PANY.

(See 8. C 28 How., 209-220.)

Jurisdiction in admiralty — in contro/cts and torts
— injury to steamer by pile in river channel —
injury on Sunday recoverable for — Sunday
laws.

The Jurisdiction of courts of admiralty in matters
of contract, depends upon the nature and charac-
ter of the contract ; but in torts, it depends entire-
ly on locality.

If wrongs be committed on the high seas, or with-
in the ebb and flow of the tide, they come within
the Jurisdiction of that court.

The definition of the terra "torts,'* when used in
reference to admiralty Jurisdiction, is not confined
to wrongs or injuries committed by direct force.

It include, also, wrongs suffered in consequence
of the negligence or malfeasance of others, where
the remedy at common. law is by an action on the
case.

Where injury to a steamer was caused by her
coming in contact with a sight pile, driven into the
channel of a river by contractors, and left, defend-
ants held liable for this injury, because the pile
waA left in the channel by their contractors.

The case is not altered by the fact that the con-
tractors were directed to do so by the engineers,
who were the servants of defendants.

When they dismissed the contractors from the fur-
ther fulfillment of their contract, it became their
duty to take care that all obstructions to naviga-
tion, which had been placed in the channel bv their
orders, and for the purpose of their intended erec-
tion, should be removed.

Although this collision took place on Sunday, and
a statute of Maryland forbids persons "to work"
on the Ijord's day, and the master and mariner of a
ship or steamboat are liable to the penalty of the
Act for commencing their voyage from a port in
Maryland on Sunday, it does not follow that the
defendants can protect themselves from respond-
ing to the owners of the vessel for the damages suf-
ered in consequence of the nuisance.

Courts have no power to add to this penalty the
loss of a ship, by toe tortious conduct of another,
against whom the owner has committed no offense.

Vessel leaving a port on Sunday does not infringe
the state laws with regard to the observance of that
day.

This court will not reverse a decree, merely upon
a doubt created by conflicting testimony as to dam-
ages.

Argued Jan. ^4, 1860. Decided Feb. 13, 1860.

APPEAL from the Circuit Court of the United
States for the District of Maryland.
The libel in this case was flled in the District
Court of the United States for the District of
Maryland, by the appellee, to recover damages
for an injury alleged toliave been sustained oy
a towboat belonging to the appellee, by her run-
ning against a sisht pile in the Susquehannah
River, left in said river by the agents of the ap-
pellant.

Note.— To what places the Jurisdiction of admiralty
is confined. See note to Allen v. Newberry, 82 CJ. S.
110.

:iy

433

209-230

BUPaBMS COUBT OF THB UNITBD tiTLTJML

D&c. Tkbm,

The district court entered a decree in favor
of tlie appellee, for $7,000.36. damages. Tlie
circuit court, on appeal, having affirmed this
decree, the defendant took an appeal to this
court.

A further statement of the case appears in
the opinion of the court.

Messrs. Wm. Schley and Thomas Don-
aldson, for appellant:

1. The District Court of the United States
has no jurisdiction in a case like the present.

The cases show that "Marine Torts," over
which courts of admiralty have jurisdiction,
are trespanses done and committed on navigable
waters, us in the case of a collision between two
vessels.

The placing? and leaving the pile in the bed
of the Susquchannah and within the body of a
county, was a nuisance at common law, and
the appellee's remedy was in the state courts,
in an action on the case for particular damage
caused by that nuisance.

The question is not one of mere locality.
The subject-matter itself is not within the ad-
miralty jurisdiction : and it is believed that none
of the decisions of this court have gone to an
extent which would include it.

Conkl, 21, 24; 7 homos v. Lane, 2 Sumn., 9,
10; Oiitler v. Roe, 7 How., 737; The Tilton, 5
Mas., 465; Waring v. Clarke, 5 How., 467;
Ang. Tide Wat., 118; Hancock v. York N. ds
B. R. W. Co., 70 Eng. C. L., 847; Abb. Ship.,
238; 9 Stat. atL., 1851.

2. The appellees could not recover in this case,
because they were engaged in an unlawful act
at the time when the accident occurred.

It is the law of Marvland, that no person
whatever shall work or clo any bodily labor, or
willingly suffer any of his servants to do any
roaDDcr of work or labor on the Lord's day,
works of necessity and charity excepted.

There is nothing in this provision inconsist-
ent with any of the laws of the United States
regulating commerce, and the federal courts
would, therefore, take notice of and conform to
the law of the State.

Act of Assembly of Md., 1723, ch. 16, sec.
10: Bank (rf U. 8. v. Owem, 2 Pel.. 527; Bos-
irorth V. Inhdb. of Bicanisey, 10 Mete, 868;
Bobeson v. French, 12 Mete, 24; PhiUips v.
Innes, 4 C. & F.. 234; Smith. Cont., 171.

8. It was the duty of the contractors to re-
move these sight piles when done with ; and the
act of the contractors or of their servants in
sawing off those piles below the surface, and
leaving them so as to obstruct the navigation,
was in no sense the act of the appellant.

There is nothing to show that the appellant
ever had knowledge of the fact that these piles
were sawed off, instead of being removed, as
the contract required ; and the termination of
the contract could not make the appellants
liable for the consequences of a previous wrong-
ful act of the contractors, the appellants not
consenting either to making or continuing the
nuisance.

Allen V. Haffwardy 68 Eng. C. L., 974; Reedie
V. London dt N. W. R. Co,, 4 Wels.. H. & G.,
214, 245; Knight v. Fox, 6 Exch., 721; Steel v.
S, E. R. Co., 81 Eng. C. L., 650; Ocerton
V. Frteinan, 73 Eng. C. L., 8rt7: Peachey v.
Roirhtnd, 13 C. B.. 182; Blake v. Ferris, 6 N.
Y.. 48; HiUiard v. Richardson, 3 Gray, 854;
484

Rap»n V. OvMtt, 9 M. & W.. 710; M&Ugan t.
Wedge, 40 Eng. C. L., 177; Burgess v. Oray^ 1
C. B., 578.

The slaking of The Superior after striking on
the sight pile, was owing to the mismanage-
ment of her captain, and the appellees cannot
be entitled to recover the damages consequent
upon her sinking, for the cost of raising her, or
the loss of time while she was under water.

4. The amount of the decree is greater than
the actual loss, which naturally or necessarily
resulted from the injury; and greater, indeed,
than the total value of the injured boat.

Mr. Geo. W. Dobbin, for appellee:

1. The steamer "Superior." the subject of the
injury being, at the time of the wrong com-
mitted, a licensed vessel sailing in her lawful
business on waters within the ebb and flow of
the tide, a court of admiralty has jurisdiction
to redress any trespass upon her, notwithstand-
ing an action at law might have been main-
tamed for the same injury.

8 Story, Cont., 580; 2 Browne Civ. & Adm.
Law. 110, 208; Thomas v. Lans, 2 Sumn., 9;
Tfie Ruckers, 4 C. Rob.. 78: SUeley. Thatcher,
1 Ware, 98; Thackarey v. The Farmer, Gilp.,
629; Waring yr. Clarke, 6 How., 464; New Jer-
sey 8. Nav. Co., V. Merchants* Bank. 6 How.,
431, 432; Manro v. Almeida, 10 Wheat.. 478;
Plummer v. Webb, 4 Mas., 888; Chamberlain v.
Chandler, 8 Mas., 242; Bee Adm., 869; Anjc.
Tide Wat.. 119; Th£ Volant, 1 W. Rob., 387;
Zouche, 117, 122: Com. Dig.. "Admiralty," E,
18; Sir Leoline Jenkins, 2 Brown C and Ad.
L., 475; De Lovio v. Boit, 2 Gall., 487; Judge
Winchester, 1 Pet.. Ad. Dec.. 284.

2. The Act of A^ssembly of Marvland did not
contemplate a restraint on the sailing of vessels
engagea in foreign commerce or in the coast-
ing trade, and if it did, such restraint is re-
pugnant to the CoDstitution and laws of the
United States. The "Superior" being a vessel
duly enrolled and licensed in the District of
Philadelphia, for the coasting trade, had a
right to pursue such trade without any restraint
thereon by the laws of the State of Mar^iand,
in respect to the time within which such coast-
ing trade might be prosecuted.

Gibbons V. Ogden, 9 Wheat., 240; Brown v.
State of Maryland, 12 Wheat., 448; Brown r.
Jones, 2 Gall., 477; Willard v. Dorr, 3 Mas., 98.

8. The Railroad Company, and not the con-
tractors under them, are responsible for the in-
jury.

The whole work was done under the direc-
tion and superintendence of the Company, the
contractors undertaking to do only as directed
by the Company* engineers; and there being no
proof that the contractors violat'^d their instruc-
tions, the presumption is that all that was done
was by the order of the Company's superin-
tendent.

The pile, upon which the steamer ran. was not
such an one as is contemplated by the contract,
where it speaks of . " scaffolding and piles that
mav be used while building.'*

At the time of the accident, the Company
had discharged the contractors and taken pos-
session of all that was built of the bridge, in its
then unfinished condition.

4. The captain of the steamer exercised the
utmost prudence, skill and judgment after the
accident, as the record abundantly shows: but

1859.

Phila., W. a B. R R. Co. v. Pbuua. & H. Towboat Co.

209-220

even if this were less apparent as a question in
fact, it having undergone full examination in
the district court, and the circuit court on ap-
peal, this court will not disturb the decree un-
less in a clear case of mistake.

Walsh V. Eogers, 18 How., 284.

5. The sum decreed against the appellant in
the district court and affirmed in the circuit
court on appeal, is less than the proof shows to
have resulted from the injury.

WiUiafmon v. Barrett^ 18 How., 110.

Mr, Justice Grler delivered the opinion of
the court :

A brief statement of the facts of this case will
be sufficient to show the relevancy of the ques-
tions to be decided.

The appellants were authorized by aslatute of
Maryland to construct a railway bridge over the
mouth of the Susquehanna River, at Havre de
Grace. They entered into an agreement with cer-
tain contractors, to prepare the foundations and
erect the piers. In pursuance of their contract,
these persons drove piles into the channel of the
river, under the direction of the engineers em-
ployed by the apellants. Before the completion
of the contract, the appellants abandoned their
purpose of building the bridge, and discharged
the contractors. During the progress of the
work, the contractors had driven certain piles,
called sight piles, into the channel of the river,
which were not removed or cut off level with the
bottom, but were cut a few feet under the sur-
face of the water, so that they became a hidden
and dangerous nuisance. The steamboat Super-
ior, engaged in towing boats between Philadel-
phia and Havre de Qrace,]ef t a port in Maryland
on Sunday morning, and soon after came into
forcible collision wiih one or more of these piles;
in consequence whereof she suffered great dam-
age, and for which this libel was filcS.

The appellants have, in this court, insisted
chiefly on three points of defense to the charges
of the libel:

I. It is contended that the "marine torts,"
over which courts of admiralty have jurisdic-
tion, are trespasses done and committed with
force on the sea and navigable waters, such as
collision of vessels, assaults, &c., and that the
placing and leaving the piles in the bed of the
river, and within the body of a county, is a
nuisance at common law, and the remedy of the
appeiles should have been by an action on the
case.

The jurisdiction of courts of admiralty, in
matters of contract, depends upon the nature
and character of the contract; but in torts, it
depends entirely on locality. If the wrongs be
committed on the high seas. or within the ebb and
How of the tide, it has never been disputed that
they come within the jurisdiction of that court.
Even Lord Coke (4 Inst., 134) declares, *'that
of contracts, pleas, and querels, made upon the
sea or any part thereof, which is not within
any county, the admiral hath and ought to have
jurisdiction."

Since the case of Waring "v. Clarke, 5 How.,
464, the exception of " infra corpus comitatus "
is no longer allowed to prevail. In such cases,
the party may have his remedy either in the
common law courts or in the admiralty. Nor
is the definition of -the term " torts," when used
in reference to admiralty jurisdiction, confined

t3ee 28 How.

to wrongs or injuries committed by direct force.
It includes, also, wrongs suffered in consequence
of the negligence or malfeasance of others,
where the remedy at common law is by an
action on the case. It is a rule of maritime'law,
from the earliest times, "that if a ship run foul
of an anchor left without a buoy, the person
who placed it there shall respond in damages. "
See Emerigon, Vol. I., page 4i7; Consulatde la
Mer., chao. 243; and Cleirac, 70.

In the resolution of theTwelve J udges,in 1682,
it was determined in England, ** that the courts
of admiralty may inquire of aiid redress all
annoyances and obstructions that are or may be
any impediment to navigation, &c., and in-
juries done there which concern navigation on
the sea."

Hence, " the impinging on an anchor or other
injurious impediment negligently left in the
way," has always been considered as coming
within the category of maritime torts, having
their remedy in the courts of admiralty. See 2
Brown Civ. and Adm. , 203.

The objection to the jurisdiction of the court
is, therefore, not sustained.

II. The testimony showed that the injury to
the steamer was caused by her coming in con-
tact with one of the sight piles, driven into the
channel by the contractors, and left in the sit-
uation already stated.

This contract is set forth at length. It showed
that the contractors were bound to ** provide
all necessary machinery, &c., and to furnish
(and remove when done with) all scaffolding
and piles tLat may be used while building."

It is contended by the appellants that they
are not liable for the negligence which caused
this injury, because the piles were not placed
in the channel by their servants, but by those
of the contractors; and that the case was not
altered by the fact that the contractors were
directed to do so by the engineers, who were the
servants of appellants.

If the contractors had proceeded to complete
their contract, and left the piles in the condi-
tion complained of, this defense to the action
might have availed the appellants. But as the
driving the piles for the legitimate purpose of the
erection was by authority of the law and in pur-
suance of the contract, the contractors had done
no wrong in placing them there. The nuisance
was the result of the negligence in cutting off
the piles, not at the bottom of the river, but a
few feet under the surface of the water. This
the contractors were bound to do, after the piles
had served their legitimate purpose in the con-
struction of the bridge, and after they had com-
pleted their contract. But before this,the Rail-
road Company determined to discontinue the
erection of the bridge. They dismissed the con-
tractors from the further fulfillment of their
contract. Under such circumstances, it became
the duty of the appellants to take care that all
the obstructions to the navigation, which had
been placed in the channel by their orders, and
for the purpose of their intended erection,
should be removed. The nuisance, which re-
sulted from leaving the piles in this dangerous
condition, was the consequence of their own neg-
ligence or that of their servants, and not of the
contractors.

III. The appellants urge, as a further ground
of defense, that this collision took place on aun-

485

117-132

STJPaRMB COUBT OF THB UkITSD StATBB.

Dec. Tjersc,

day, ehortly after the steamboat had com-
menced her vovaere from the wharf. " parcel of
the territory of Harford County, in the State of
Maryland; that the boat was used and employed
by her owners in towing canal boats; and that,
when entering on her voyage, thoee who had
her control and management were engaged in
their usual and ordinary work and labor — the
same not being a work of necessity or charity
— contrary to the laws of the State of Maryland. '*

A statute of Maryland forbids persons *'to
work or do anv bodily labor, or to willingly
suffer any of their servants to do any manner
of work or labor, on the Lord's day — works of
necessity and charity excepted;" and a penalty
is prescribed for a breach of the law.

It has been urged, that there was nothing in
this provision inconsistent with any of the laws
regulating commerce, and that the federal
courts should, therefore, take notice of and con-
form to the laws of the State.

But assuming this proposition to be true, the
inference from it will not follow as a legitimate
conclusion; for, if we admit that the master
and mariner of a ship or steamboat are liable to
the penally of the act for commencing their
voyage from a port in Maryland on Sunday, it
by no means follows that the appellants can
protect themselves from responding to the own-
ers of the vessel for the damages suffered in
consequence of the nuisance.

The law relating to the observance of Sun-
day defines a duty of a citizen to the State, and
to the State only. For a breach of this duty
he is liable to the fine or penalty imposed by
the statute, and nothing more. Courts of jus-
tice have no power to add to this penalty the
loss of a ship, by the tortious conduct of an-
other, against whom the owner has committed
no offense. It is true, that in England, after
the Statute of 29— ch. 2d, forbidding labor on
the Lord's day, they have, by a course of decis-
ion perhaps too obsequiously followed in this
countrv, undertaken to add to the penalty,
by declaring void, contracts made on that day;
but this was only in case of executory con-
tracts, which the courts were invoked to exe-
cute. It is true, that cases may be found in
the State of Massachusetts (see 10 Mete.. 303, and
4 Cush., 322). which, on a superficial view,
might seem to favor this doctrine of setoff in
cases of tort. But those decisions depend on
the peculiar legislation and customs of that
State, more than on any general principles of
justice or law. See the case of Woodman v.
Hubbard, 5 Fost., 67.

We would refer, also, to a case very similar
in its circumstances to the present, in the Su-
preme Court of Pennsylvania, in which this
subject is very fully examined by the learned
Chief Justice of that court; and we concur in
his conclusion: ** That we should work a con-
fusion of relations, and lend a very doubtful
assistance to morality, if we should allow one
offender against the law, to the injury of an-
other, to set off against the plaintiff that he, too,
is a public offender." See Mohney v. Cook, 26
Pa. St., 342.

We do not feel justified, therefore, on any
principles of justice, equity, or of public pol-
icy, in inflicting an additional penalty of $7,000
on the libelants, by way of setoff, because
their servants may have been subject to a

136

penalty of twenty shillings each, for breach of
the statute.

Moreover, the steamboat in this case wassail-
ing on a public river, within the ebb and flow
of the tide; she had a coasting license, and was
proceeding from a port in one State to a port
m another. Has it ever been decided that a
vessel leaving a port on Sunday infringes the
state laws with regard to the observance of that
day?

We have shown, in an- opinion delivered at
this term, that in other Christian countries,
where the observance of Sundays and other hol-
idays is enforced by both church and state, the
sailing of vessels enraged in commerce, and
even their lading ana unlading, were classed
among the works of necessity, which are ex-
cepted from the operation of such laws. This
may be said to be confirmed by the usage of all
nations, so far, at least, as it concerns com-
mencing a voyage on that day. Vessels en-
gaged in commerce on the sea must take the ad-
vantage of favorable winds and weather; and it
is well known that sailors (for peculiar reasons
of their own) give a preference to that day of
the week over all others for commencing a Voy-
age.

In the case of t/tory v. The Washingttm,
Crabbe, 208, where a sailor justified his depart-
ure from a ship in port, because he was com-
pelled to work on Sunday, Judge Hopkinson
decided, '* that, by the maritime law, sailors
could not refuse to work on Sunday — the nature
of the service requires that they should do so. '

We have thus disposed of the questions of
law raised in this case, and concur with the dis-
trict and circuit court in their decision of them.

Some objections have been urged to the assess-
ment of damages, and their amount

On this subject there was much contradic-
tory testimony, as usually happens when ex-
perts are examined as to matters of professional
opinion. The judges of the courts where tliis
question was tried can better judge of the rela-
tive value of such conflicting testimony, from
their knowledge of places and persons,and they
may examine witnesses ore tenue, if they see
fit.

There was evidence to support the decree;
and we can see no manifest error into which
the court below has fallen. Appellants ought
not to expect that this court will reverse a de-
cree, merely upon a doubt created by conflict-
ing testimony.

The judgment ofttie circuit court i$ affirmed,
with costs,

Clted-1 Black, 580; 105 U.S., «aO; 2 Ren., 238: .5
Ben., 56: 8 Ben., 55i; 2 Dill.. 4«3; 7 Blatchf.. 29\
295, 306 ; 1 Low, 196, 188 : 1 Krown, 360: 6 Bias., SOH :
6 Sawy., 266 : 29 N. J. Kq., 820, 321 ; 89 N. Y.. 222 ; 9
Am. Kep., 537 (29 Wis.. 21) ; 17 Am. Rep., 228 (38 N.
Y., 126) ; 30 Am. Rep., 417 (48 Iowa. 6n2) : 10 Am.
Uep.,417 (56Md.,209); 44 Am. Rep., 478 (80 Ky., 291).

JOSEPH PENNOCK and NATHAN F.
HART, AppU.,

GEORGE 8. COE, Trustee of the Clkveland.
Zanesville & Cincinnati Railroad Co.

(See S. C, 23 How., 117-132.)

Mortgage on <tfter'€u:quircd property of railroad,

M U.S.

1859.

Pennock v. Cob.

117-132

xchen taUd — when it attaches — right of mort-
gagee— is prior to that of creditors, wlien —
rights of bondholders— construction of charter.

The after-aoquired rolling' stock of a railroad
company placed upon the road, attaches In equity,
to a mortcraire, if within the description, from the
time it is placed there, so as to protect it against the
judgment creditors of the railroad company.

There is no rule of law or principle of equity that
denies effect to such an agreement.

Whenever a party undertakes, by deed or mort-
ffairc* to grant property, real or per8onal«in present!,
which does not belong to him or has no existence,
the deed or mortgage, as the case may be. is inoper-
ative and void, and this either in a court of law or
equity.

But the principle has no application to a case
where the mortgag'ee does not undertake to grant,
in wxBsenti^ property of the company not belonging
to it,or not in existence at the date of the mortgage.

Where the terms of the grant or convevanoe are :
*'all present and future to-be-acquired property
of the parties of the first part, including iron rails
and equipments, procured or to be procured," &c.,
the law will permit the grant or conveyance to
take effect upon the property when it is brought
into existence, and belongs to the grantor, in f ulnlU
ment of an express agreement, founded on a good
and valuable consideration.

If the company, after having received the money
upon the bonds and given the mortgage security,
had undertaken to divert the fund from the pur-
pose to which it was devoted, namely: the oonstruo-
tion of the road and its equipment, and upon which
the security mainly depended, a court of equity
would have interposed, and enforced a specific per-
formance; one of the covenants being, that the
money should be faithfully applied to tne building
and equipment of the road.

Or If, after the road was put in operation, the
company had undertaken to divert the rolling
stock from the use of the road, a like interposition
might have been invoked, in order to protect the
security of the bondholders.

And if a court of equity would thus have com-
pelled a specific performance of the contract, it
would sanction the voluntary performance of it by
the parties themselves, and give effect to the secu-
rity as soon as the property is brought Into exist-
ence.

The mortgage attached to the future acquisitions,
as described in It, from the time they came into
existence.

As to the claim of the judgment creditors, the
mortgage being a valid and effective security for
the bondholders of prior date, they present the
superior equity to have the property in question
applied to the discharge of the bonds.

If the property covered by the mortgage consti-
tutes a luna more than sufficient to pay their de-
mands, the court may compel the prior encum-
brancer to satisfy the execution ; or, on a refusal,
the mortgage having become forfeited, compel a
foreclosure and satisfaction of the bond debt, so as
to enable the judgment creditor to reach the sur-
plus.

Or the court might, upon any unreasonable resist-
ance to the claim of the execution creditor, or in-
equitable interposition for delay, and to hinder and
defeat the execution, permit a sale of the rolling
stock sufficient to satlsiy it.

But if the whole of the property mortgaged is in-
sufficient to satisfy the mortgage, any interference
of the Judgment creditors, with a view to the satis-
faction of their debts, consistent with the superior
equity of the bondholders, would work only incon-
venience and harm to the latter, without any bene-
fit to the former.

To permit one of the bondholders under a second
mortgage to proceed at law in the collection of his
debt upon execution,would disturb the pro rata dis-
tribution, and give him an inequitable preference,
and prejudice the superior equity of the bondhold-
ers under the first mortgage, which possesses the
prior lien.

Power under the charter to construct the road
from Hudson to Mlllersburg, and consequently to
borrow monev and pledge the road tor this pur-
pose, is to be found in the charter.

Argued Jan. 31, 1860, Decided Feb, SO, 1860,

APPEAL from the Circuit Court of the Unit-
ed Btates for the Northern District of
Ohio.

The hill in this case was filed in the court
below, by the appellee, mortgagee of the road
of the Railroad Company, in trust for securing
the payment of its bonds, to enjoin the exe-
cution of a Judgment recovered at law against
the Company by the appellants. The said court
having entered % decree granting the injunction
as prayed, the respondents took an appeal lo
this court.

Note.— The litn of a mortgage on after-acquired
prtiperiy.

At common law nothing can be mortga^d that
does not belong to the mortgagor at the time when
the mortgage is made. Pierce v. Emery, 32 N. H., 484.

Where a railroad company executed a mortgage
upon its road ** constructed and to be constructed,'*
Ac, and real estate then owned, &c., or which
should thereafter be owned by them, &c ; held, that
the mortgage embraced, and was a valid lien upon,
all the property therein described, whether the
same was then owned by the company or was ac-
quired subsequently for the purpose of its rail-
road. Seymour v. Can. k Niagara Falls R. R. Co.,
25 Barb., 2»t ; S. C, 14 How. Pr., 581.

A railroad mortgage to secure bonds which pro-
vides that all subsequently acquired property shall,
upon the acquisition thereof, become subject to the
lien, and operation of the mortgage makes rails
subsequently acquired for the use of the road a
part of the security in equitv, against persons buy-
ing them with knowledge of the facts or without
parting with value for them. Weetjen v. 8t. Paul &
Fac. R. K. Co., 4 Hun, 629.

A railroad mortgage as against the company and
ItH privies, though given before the road is built,
attaches thereto as fast as it is built, and to all
property covered by its terms as fast as it comes into
existence as property of the company. Oalveston
R. R. V. Cowdrey, 7817. 8. (11 Wall.), 459.

A railway mortgage expressed to cover after-ac-
quired property, shouM not be allowed to overrule
a lien given upon the purchase of such property
for theprice thereof. U. 8. v. New Orleans R. R.
Co., 79 U. 8. (12 Wall.), 982.

A mortgage on a crop not sown, cannot at the
time operate as a mortgage, but after the seed is
sown and the crop grown, the mortgage lien at-
taches. Butt v. Ellett, 86 U. 8. (19 Wall.), 544. Aff'g
Ellett V. Butt, 1 Woods, 214.

See 33 How.

A railroad mortgage covering all subsequently
acoulred property, was held to include a railroad .
and appurtenances afterwards leased by the mort-
ga^rors. Barnard v. Norwich, &c., R. R. Co., 14 Bank.
Reg., 409.

A similar mortgage was held to include rolling
stock ; Pullan v. Cincinnati R. R. Co., 4 Biss., 35 ;
and where they are named in mortgage, cars, en-
gines and machinery in existence at time of fore-
closure. Shaw V. Bill, 95 U. S., 10.

Where no rule of law is infringed, and the rights
of third persons are not prejudiced, courts of
equity will, in proper cases,glve effect to mortgages
or subsequently acquired property. Beall v. white,
94 U. 8., 382.

Where a contract provides that cars furnished
shall be property of person furnishing them, till
paid for, his claim is prior to the lien of a mort-
gage covering after acquired property^ Fosdlck^.

256.

99 U. 8. 236 ; Fosdlck v. Car Co., 99 U. 8.,

After acquired lands which cannot be regarded
as accretions to the road itself, will not pass under
a genera] mortgage of a railroad as parcel thereof.
Calhoun v. Paducah, &o., R. R. Co., 9 Cent. L. J., 66 ;
8 Reporter, 395.

Lands subsequently acquired, and not essentinl to
the operation of the road, do not pass by implica-
tion under such a mortgage. They should have
been described wHh reasonable certainty to be
included. Calhoun v. Paducah, &c., 11. R. Co.,
suwra.

Claims, for right of way acquired by a railroad
after it has executed a mortgage, are subject to the
prior rights of mortgagees. Baylls v. La Fayette,
&c., R. R. Co., 8 Reporter, 579.

Mortgage of future additions to a stock of goods
in a particular shop, is a valid mortgage or such
goods as fast as they are put into the shop by the
mortgagor. Brett v. Carter, 2 Low., 458.

487

117-1 83

SlTFBlBKB Ck>T7BT OF THB UHITBD StATBS.

Dbc. Terk,

A further statement of the case appears in
the opinion of the court.

Messrs. Spauldin^f Ss Parsons and E«
M. Stanton* for the appellants:

First. It is insisted, on the part of the appel-
lants, that so much of the inaenture made be-
tween the Akron branch of Uie Cleveland &
Pittsburgh Railroad Company and Gkorge S.
Coe, trustee, on the 1st day of April, 1852, as
purports to put in pledge or mortgage " future
acouisitions," is inoperative and void.

Telverion v. Telverton, Cro. Eliz., 401; 4
Com. Dig. , 810, Grant, D ; Mbgg t. Baker, 8
Mees. & W., 196; Jones y. RUhardson, 10 Met,
481 ; Moody v. Wright, 18 Met., 17; OUs v. QOl,
8 Barb., 102; Bose v, Sevan, 10 Md., 466.

Second. The indenture of April 1, 1852, is
void for uncertainty as to the nature and ex-
tent of the grant.

It purports to convey "all the foregoing,
present, and future to-be-acquired property of
the said parties of the first part." '* Doltts ver-
satur in general ibus, **

Ihddington's case, 2 Co., 82.

" A grant shall be void if it be totally un-
certain; as, if a man grant as many trees as can
be spared in his manor."

4 Com. Dig., 817; Grant, E. 14.

In the case at bar it will appear that the

grantors reserve to themselves the right to ' * sell,
y pothecate or otherwise dispose of any bonds
or other property of the Company not neces-
sary to be retained for their railroad, nor re-
quired for the construction or convenient use of
their road.

U, 8. V. King, 8 How., 778; Doe, ex dem,
HoUey, v. Curtis, 8 How. Miss., 280; Proctor y.
Pool, 4 Dev., 870; WortMnqion v. Bylyer, 4
Mass., 196; BuUoekv, WUUams, 16 Pick., 88;
WinsiowY. Merchant Ins, Co.; 4 Met.. 806.

Third. The indenture of April 1. 1852, so far
as the same purports to be a mortgage of the
personal property, is fraudulent and void as
against judgment creditors, for the reason that
it provides for a continuing possession in the
hands of the mortgagors, with power to sell and
dispose of the property at their own discretion.

XHiwr V. McLaughlin, 2 Wend., 696; Paget
V. Perchard, 1 Esp., 205.

Fourth. The Railroad Company had no au-
thority as a corporate body to make a railway
from "Hudson to Millersburg," and as a neces-
sary consequence, had no power to borrow
money for that purpose. The charter only au-
thorized the construction of a railroad from
Hudson in Summit County, to Wooster, in
Wayne County, or some other point in the Ohio
and Pennsylvania Railroad between Massillon
and W^ooster

See Ohio Local Laws.Vol. XLIX., p. 468.

" Corporate powers are never to be created
by implication, nor extended by construction."

Penn. R, B. Co, v. The Canal Commissioners,
21 Pa., 9; StonjtfeUe v. The Manor Turn-
pike Co., 18 Penn., 565; Bast Anglian B. Co,^
V. Eastern Counties B. Co., TEng. L. and Ecj.,
505; Act regulating railroad mortgages in Ohio,
Swan's Rev. Stat., 241; Colman v. 7^ Eastern
Counties B. B. Co., 4 Eng. R. Cas.. 882; Per-
rine v. Ches. A Del. Can. Co., 9 Row., 172; J»-
hcU). of SpringfiM v. Conn. Biv. B. B. Co., A
Cush., 63; Logan v. Earl of Courtoum, 18
Beav., 22: Greeny. Seymour, 8Sandf. Ch., 286;

48S

The Penn., dtc., Co. v. Dandridge, 8 Gill & J.,
248.

' ' Notes given by a corporation in violation of
law are void."

Mr. Justice McLean, in Boot v. Oodard, 8
McLean, 102; McOintry v. Beeves, 10 Ala.»
187; Commonwealth v. The Erie AN. B.B. Co.,
27 Penn., 889; Peavey v. The Calais B. B. Co.,
80 Me.. 498.

" A right cannot be claimed by a corporation
under ambiguous terms."

Justice McIiCan in Charles Biver Bridge case,
11 Pet., 569.

Fifth. The complainant does not show him-
self entitled to call upon a court of equity, '* to
stay the hand" of the judgment creditors of the
Railroad Company.

When complainant has full and adequate
remedy at law, equity will not interfere.

2 Mow., 388; 8 J. J. Marsh., 274; Water-
man's Eden, Inj.. 69.

Sixth. The appellants are judgment creditors
of the R. R. Co., and are seeking satisfaction of
their judgment by a proceeding at law. The
equitable relations between them and other
bondholders are not properly before the court
for adjudication. The great question to be met
and decided is this:

Can the rolling stock of a railroad company
be seized and sold on execution?

Seventh. The Railroad Company had the
possession and legal ownership of the chattels
levied on, and a legal title and interest in them
that might be sold on execution.

Watson, Sher.. 182; Todd's Pr..l008, 9th ed. ;
1 Archb. Pr., 584; Bac. Abr., Execution, ch.,
4; Srodes v. Caten, 8 Watts, 258; Story. Bail. ,
sec. 850.

Mr. W. S. C. Otis, for appellees:

1. The Act of February 19, 1851. conferred
upon such persons as may have subscribed to
the stock of the Akron branch, the franchise of
being and acting as a corporation, with power
to construct a railroad within the limits speci-
fied within the said Act, to borrow money for
such purpose, and to mortgage ** all or any
part of the said railroad, or of anj^ other real or
personal property belonging to said company .or
of any portion of the toils and revenue of said
company which may thereafter accrue, for the
purpose of raising money to construct said rail-
road, or to pay debts incurred in the construc-
tion thereof."

The counsel examined this Act at length, and
cited the following authorities:

Ang. & Ames. Corp., sees. 76, 77, 78; Queen
Y. lior Law Commissioner, 6 Adol. & E., 68;
QardonY. /Vwton, 1 Watts.885; Union Bank y.
Jacobs, 6 Humph., 515;/2ftr v. Loxdale, 1 Burr.,
447; Act regulating R R. Cos., Feb. 11, 1848;
Act to provide for the creation and regulation
of incorporated companies within the State of
Ohio. May 1, 1852.

2. The Act of February 19, 1851. conferred
upon the Companv power to construct their
road south of the Ohio and Pennsylvania R.R.
and to connect the same with any railroad run-
ning in the direction of Columbus.

See Bellville, Ac., B. R Co. v. Gregory, 15
III., 20.

8. Neither the right of way. road bed. sufier-
structure, nor the machinery and cars upon the
road for transportation, or the repair of the

IS.'^O.

pRNNocK V. Cob.

117-133

track, are subject to levy and sale upon judg-
ment and execution, irrespective of the lien
created by the mortgages to Coe.

This proposition, so far as it relates to the
right of way, road bed and superstructure,
will not be controverted. It rests upon too
solid a foundation of reason and authority to
admit it.

Tippets V. TFaZAw, 4 Mass., 595. 597; Win-
chester and Lex. Turnpike Co. v. Vimont, 5 B.
Mon., 1; Macon <St Western R. R. Vo. v. Par-
ker, 9 Ga,, 377; Ammant v. The Neio Alex,
and Pittsburgh Turnpike Co., 13 S. & R , 210;
Leedom v. The Plymouth R. R.Co.,5 Watts. &
8., 265; The Susquehanna Can. Co. y. B&nham,
9 Watts. & S., 27; Seymour v. MUford & ChiU.
Tump. Co., 10 O. li., 477.

An examination into the reasons of this ex-
emption of the right of way, road bed and
superstructure from levy an^ sale, will show
that they extend to and embrace the machinery
and cars upon the road, as well as the road
itself.

4. The Legislature intended that the cars and
machinery placed upon the road should become
a part of it, by accession, in the same manner
and to the same extent as buildings or other im-
provements annexed to land become a part of
It, by accession.

Farrarv. StackpoUj 6 Me., 154; Voorhis v.
Freeman, 2 Watte. & S., 116; Pyley. Pennoek,
2 Watts. «fe S., 390; Cray v. Holdship, 17 8. &
R., 413; Heaton v. FindUsy, 12 Va , 304; Wins-
low V. Merchants' Ins. Co., 4 Met.. 806, 814;
Bish^y. Builiop, 11 N. Y., 128; Snedeker y.
Warring, 12 N. Y.. 170; Morgan v. Mason, 20
O. R. , 401 ; Farmers* Loan and l¥tist Co. v.
Uendrickson, 25 Barb., 484.

Not only the public convenience but public
justice retiuircs, that the machinery and cars
upon the road should be exempt from levy and
sale upon execution.

If the machinery and cars placed upon the
road for the purpose of transportation and the
repair of the track, became annexed to the road
aa a part of it under the charter of the Company,
then, as accessions to tlie original subject of the
mortgage to Coe, they would be covered by it,
by the rule of the common law.

PeUingiUy. Evans, 5 N. H,. 54; Southworth
y. Isham, S Sandf.. 448; HoUy v. Brown, 14
Conn., 251, 265.

The power to mortgage the future to be ac-
quired tolls and revenues of the Company, car-
ries with it, by necessary implication, the power
to mortgage the future to-be-acquired equip
ment necessary to earn such tolls and revenues.

It is a fundamental principle, that when a
right is expressly given to an individual or a
corporation, all powers necessary to the enjoy-
ment of the right are also given.

Leavitt v. Blatehford, 5 Barb., 9; Morgan v.
Mason, 20 O. R.. 401.

5. The mortgage to Coe is a lien upon the
machinery and cars levied upon, though the
same were not in existence at the time said
mortgage was executed, and though the same
did not become a part of the road by accession
when placed upon it.

It is the general rule of the common law, that
nothing can be mortgaged which is not in ex-
istence and does not belong to the mortgagor
at the time the mortgage is executed.

See 28 How.

Window V. Merchants* Ins. Co., 4 Met.. 806;
Jones y. Richardson, 10 Met, 481; Luan v.
Th(ymUm, 1 Mon., Gr. & 8.. 379; Otis v. SiU,
8 Barb., 102.

But these very authorities also establish the
fact that this rule is founded solely upon a
technicality.

The rule of the civil law is the very reverse
of that of the common law in this particular.

1 Domat.. Cush. ed., 649, art. 5; 650, art. 7.

There is, therefore, no inherent difficulty in
making a mortgage which shall extend to after
acquired property, or property not in esse. And
" courts of equity which are not trammeled by the
technical rules of the common law in the ad-
ministration of justice, both in England and in
this country, uphold such mortgages in pursu-
ance of the rule of the civil law, when neces-
sary to carry into elfect the honest and just
contracte of parties, according to their real in-
tentions.

Fonb., B. I. ch. 4, sec. 2; ch. 5, sec. 8; 1
Pow. Mort., 190; Coote Mort. Law Lib.. Ed.,
185; Noel v. Bewley, 3 Sim., 103; Metcalfe v.
Archbisliap of York, 1 Mylne& C, 553; Langton
y. Horton, 1 Hare, 549; Matter of Howe. 1
Paige, 125, 1 29; White y. Carpenter, 2 Paitre,
217, 266; Af>bott v. QoodiHn, 20 Me., 408; For-
man v. Proctor, 9 B. Mon., 124; Jencke v.
Ooffe, 1 R. 1., 511 ; Fidd v. TIm Mayor of N.
r., 6 N. Y.. 179, 186; Mitchell y. Winslow, 2
Story, 630; Story, Eq. Jur., sees. 1040. 1040 b,
1055.

On page 644 of the case of MitcheU v. Wins-
low, above cited. Judge Story states the rule to
be, *' that wherever the parties by their contract
intended to create a positive lien or charge,
either upon real or upon personal property,
whether then owned by the assignor or con-
tractor or not, or if personal property, whether
it is then in being or not, it attaches in equity
as a lien or charge upon the particular prop-
erty, as soon as the assignor or contractor ac-
quires a title thereto against the latter, and all
persons asserting a claim thereto under him,
either voluntarily or with notice, or in bank-
ruptcy."

And the particular question raised in this
case has been determined in the following
cases !

Wiuink V. The Morris Can. Co. , 3 Green Ch. ,
377; Pierce v. Emery, 32 N. H., 484; Seymour
y. Canandaigun and Niagara Falls R. R. Co.,
26 Barb.. 286; Farmers' Loan and Trust Co.
y. Hendrickson, 25 Barb., 484; Phillips y. Wins-
hw, 2 Weekly Law Gazette, 4; S. C. reported
In full, 18 B. Mon., 431 ; Redf. Railw.. 590, and
note; Ludlow v. Burd, Superior Court of Cin-
cinnati, 6 Am. Law Reg. , 493.

I also refer to the opinion of Judge McLean
pronounced in the case at bar, in the circuit
court, reported in Coe v. Pennoek, 6 Am. Law
Reg.. 27.

5. There is no want of certainty in the nat-
ure and extent of the grant. The deeds from
the Company to Coe clearly define, not only
the nature and extent of the grant, but the ob-
jects upon which the grant operates.

It is sufficient in law, if the thing granted be

so described that it can be distinguished from

all other things of the same kind, even though

resort must be had to extrinsic circumstances

I or parol proof to identify it.

489

117-132

SCFREMR COUBT OF THE UNITED StATBS.

Dec. TtfRM,

Blake v. Doheriy, 5 Wheat., 359; Boardmnn
V. Lessees of Beed, 6 Pet., 828; McChesney*s
Lessee ▼. Wainwright, 5 Ohio, 452 ; EggUston v.
Bradford, 10 Ohio, 312; Tjiwrence v. Eoarts, 7
Ohio St., 194; Ha/rding v. Cotmrn, 12 Met.,
383; Morse v. /\A;e. 16 N. H,, 529; BurdUt v.
JBTttw/, 25 Me., 419; Wolfe v. D&rr, 24 Me.. 104;
Barry v. ^nn^ft, 7 Met., 354; Winslovo v. Jfer-
cAante' in«. Co. , 4 Met. , 306 ; Belk-nap ▼. Tr«9M2e2;,
1 Fost., 175; Dunning ▼. Stearns, 9 Barb., 680.

ifr. Justice Nelson delivered the opinion of
the court:

This is an appeal from a decree of the Cir-
cuit Court of the United States for the North-
ern District of Ohio:

The bill was filed in the court below, by Coe,
mortgagee of the road of the Railroad Com-
pany, in trust, for securing the payment of its
bonds, to enjoin the execution of a judgment
recovered at law against the Comoany, by Pen«
nock and Hart, two of the defenaants.

The facts of the case are these: the Cleve-
land, Zanesville and Cincinnati Railroad Co.,
created a body politic and corporate by the
laws of Ohio, to make a railroad between cer-
tain termini in that State, in pursuance of au-
thority conferred by law, issued bonds to the
amount of $500,000, pavable ten years from
date, with interest at the rate of seven per
cent., payable semi-annually, on the first day
of April and October in each year, and, to
secure the payment of the same, executed a
mortgage of the railroad and its equipments to
the complainant, in trust for the bondholders,
the description of which is in the words fol-
lowing: "All the present and future to be ac-
quired property of the parties of the first part;
that is to say, their road, made or to be made,
including the right of way, and the land occu-
pied therebv, together with the superstructure
and tracts thereon, and all rails and other mate-
rials used therein, or procured therefor, with
the above described bonds, or the money ob
tained therefor, bridges, viaducts, culverts,
fences, depots, grounds and buildings thereon,
engines, tenders, cars, tools, machinery, mate-
rials, contracts, and all other personal property,
right thereto, or interest therein, together with
the tolls, rents, or income, to be h£l or levied
therefrom, and all franchises, rights and privi-
leges, of the parties of the first part, in, to, or
concerning the same." At the time of the issu-
ing of these bonds, and the execution of the
mortgage, the railroad was in the course of con-
struction, but only a small portion of it fin-
ished. It was constructed and equipped almost
entirely bv means of the funas raised from
these bonds, together with a second issue to the
amount of $700,000. The road cost upwards
of $1,500,000. The stock subscribed and paid
in amounted only to some $369,000.

The mortgage securing the payment of the
second issue bears date the 1st of November,
1854, and was made to one George Mygatt, in
trust for the bondholders, and the property de-
scribed in and covered by it is the same as that
described in the first mortage. The road was
finished to Millersburg, its present terminus
south, in May, 1854, and the whole of the roll-
ing stock was placed on it previous to the date
of the second mortgage. This stock was pur-
chased and placed on the road from time to

440

time, as (he locomotives and cars were needed
in the progress of its construction.

The mortgage to the complainant contained
a covenant on the part of the Company, that
the money borrowed for the construction and
equipment of the road should be faithfully ap-
plied to that object, and that the work should
be carried on with due diligence until the 9ame
should be finished.

In case of default in the payment of the princi-
pal or interest of the bonds, the trustee was
empowered to enter upon and take possession
of the road, or, at the election of a moiety of
the bondholders, to sell the same at public
auction, and apply the proceeds to the payment
of the bonds.

The defendants. Pennock and Hart, being
the holders of sixteen of the bonds issued under
the second mortgage, recovered a judgment on
the same, May, 1856, against the Riailroad Com-
pany, issued execution, and levied on a portion
of the rolling stock of the road, and caused the
same to be ^vertised for sale.

This bill was filed to enjoin the sale, and a
decree was rendered perpetually enjoining it in
the court below, which is now before us on
appeal.

The first two grounds of objection taken to
this decree may be considered together. They
are : 1 , that the mortgage to the trustee of the
1st April, lfc52, is void or inoperative, as re-
spects the locomotives and cars which were
levied on under the execution of the defend-
ants, inasmuch as they were not in existence at
the date of it, but were constructed and placed
on the road afterwards, being subsequently ac-
quired property of the Company. And 2, that
the mortgage is void, on the ground of uncer-
tainty as to the property described or attempted
to be described therein and conveyed to the
roortga^ree. The description begins by convey-
ing "all the following present and future ac-
quired property of the said parties of the first
part;" and after specifying the road and the
several parts of it, together with the rolling
stock, there is added. *^and all other personal
property, right thereto, and interest therein."
This clause, probably, from the connection in
which it is found, was intended to refer to
property appurtenant to the road, and em-
ployed in its operation, and which had not
been enumeratea ; and if so. the better opinion,
perhaps, is, that it would be bound by the
mortgage even as against judgment creaitots.

But it is unimportant to express any opinion
upon the question, as the property in this case
(the locomotives and cars) levied on are articles
specifically enumerated; and the only uncer-
tainty existing in respect to them arises out of
their non-existence at the date of the mortgage.
An uncertainty of this chai:acter need not be
separately examined, as it will be resolved by
a consideration of the first question, which is.
whether or not the after acquired rolling stock
of the Company placed upon the road attaches,
in equity, to the mortgage, if within the de-
scription, from the time it is placed there, so as
to protect it against the judgment creditors of
the Railroad Company.

If we are at liberty to determine this ques-
tion by the terms and clear intent of the agree-
ment of the parties, it will be found a very
plain one. The Company have agreed with the

64 U.S.

1869.

Pjutnock v. Coe.

117-182

bondholders (for the mortgagee represents
them), that if they will advance their money
to build the road, and equip it, the road and
equipments thus constructed, and as fast as
constructed, shall be pledged as a security for
the loan. This is the simple contract, when
stripped of form and verbiage; and in order to
carry out this intent most effectually, and with
as little hazard as possible to the lender, the
Company specially stipulate that the money
thus borrowed shall be faithfully applied in the
construction and equipment of the road. And
in further fulfillment of the intent, the Com-
pany aeree, that in case of default in the pay-
ment of principal or interest, the bondholders
may enter upon and take possession of the
road, and run it themselves, by their agents,
applving the net proceeds to the payment of
the debt.

The bondholders have fulfilled their part of
the agreement — ^they have advanced the money
on the faith of the security; the Company have
also fulfilled theirs — they have made the road
and equipped it; it has been partially in opera-
tion since January, 1852, and in operation upon
the whole line since May, 1854. The road,
therefore, as described in the mortgage, from
Hudson to Millersburg, and which was in the
course of construction at the date of the instru-
ment, has been finished, and the rolling stock,
locomotives, tenders and cars also described
in it, and which were to be afterwards ac-
quired, have been brought into existence, and
placed upon it — all in conformity with the
agreement of the parties; and the question is,
whether there is any rule of law or principle of
equity that denies effect to such an agreement.

The main argument urged agamst it is
founded upon the maxim, that " a person can-
not grant a thing which he has not:" tile non
habet, non dat; and many authorities are re-
ferred to at law to prove the proposition, and
many more might have been added from cases
in equity, for ec^uity no more than law can
deny it. The thmg itself is an impossibility.
It may, at once, therefore, be admitted, when-
ever a party undertakes, by deed or mortgage,
to ^rant property, real or personal, in prMenti,
which does not Delong to him or has no exist-
ence, the deed or mortgage, as the case may
be, is inoperative and void, and this either in a
court of law or equity.

But the principle has no application to the
case before us. The mortga^ here does not
undertake to grant, in presentt, property of the
Company not belonging to them or not in exist-
ence at the date of it, but carefullv distin-
guishes between present property and that to
be afterwards acquired. Portions of the road
had been acquired and finished, and were in
operation, when the mortgage was given, upon
which it is conceded it toos effect; other por-
tions were acquired afterwards, and especially
the iron and other fixtures, besides the greater
part of the rolling stock.

The terms of the grant or conveyance are:
" all present and future to-be-acquired prop-
erty of the parties of the first part;" that is
to sav, "their road, made or to be made,
and all rails and other materials, &c., includ-
ing iron rails and equipments, procured or to
be procured," &c. We have no occasion,
therefore, of calling in question, much less

See 28 How.

denying, the soundness of the maxim, so
strongly urged against the effect of the mort-
gage upon Uie property in question, as its force
and operation depend upon a different state of
facts, and to which different principles are ap-
plicable. The inquiry here is, not whether a
person can grant in preaenti property not be-
longing to nim, and not in existence, but
whether the law will permit the grant or con-
veyance to take effect upon the property when
it IS brouj^ht into existence, and belongs to the
grantor, in fulfillment of an express a^^^ement,
founded on a good and valuable consideration;
and this, when no rule of law Is infringed or
rights of a third party prejudiced. The loco-
motives and cars were all placed upon the road
as early as February, 1854, when, at the fur-
thest, the mortgage attached to those in question,
according to its terms, if at all, and the Judg-
ment of the defendants was not recovered tul
May, 1856.

We think it very clear, if the Company, aft-
er having received the money upon the bonds
and given the mortgage security, had under-
taken to divert the fund from the purpose to
which it was devoted, namely: the construc-
tion of the road and its equipment, and upoii
which the security mainly depended, a court
of equity would have interposed, and enforced
a specific performance. One of the covenants
was, that the money should be faithfully ap-
plied to the building and equipment of the
road, or if, after the road was put in operation,
the Company had undertaken to divert the roll-
ing stock from the use of the road, a like in-
terposition might have been invoked, and this
in order to protect the security of the bondnold-
ers. And if a court of equity would thus have
compelled a specific performance of tne con-
tract, we mav certainly with confidence conclude
that it would sanction the voluntary perform-
ance of it by the parties themselves, and give
effect to the security as soon as the property is
brought into existence.

The case of Langton v. Horton, 1 Hare, Ch.,
549, supports this view. The mortgage secu-
rity in that case was the assignment of the ship
Foxhound, then on her voyage to the South
seas, together with all and singular her masts,
<S^., "and all oil and head matter, and other
careo, which might be caught or brought home
on tlie said ship, on and from her then present
voyage." The cargo was levied on by a judg-
ment creditor on the arrival of the ship at
home. A bill was filed to have the mortgage
declared a good and valid security for the
money advanced, an.l that the complainants be
entitled to the benefit of the security, in pref-
erence to the judgment creditor.

The Vice ChaTicellor, in giving his opinion,
observed: " Is it true that a subject to be ac-
quired after the date of a contract cannot, in
equity, be claimed bv a purchaser for value
under that contract?

And, in answer to the question, he said: "It
is impossible to doubt, for some purposes at least,
that by contract an interest in a thing not in
existence at the time of the contract may, in
equity, become the property of the purchaser
for value." And, after reviewing the cases in
the books, he concludes: " I cannot, without
going in opposition to many authorities which
have been cited, throw any doubt upon the

441

330-285

Sttprbme Coubt of thb Uhttbd States.

Dec. Tbum,

point that Bixuie, the contracting party, would
be bound by the assignment to the plaintiffs."

There are many cases in this country con-
firming this doctrine, and which have led to
the practice extensively of giving this sort of
security, especially in railroad and other sim
liar great and important enterprises of the day.

2 geld., 179; 3 Green, Ch., 377; 82 N. H..
484; 25 Barb.. 2S6: 25 Barb.. 284; 18 B. Mon..
431; RiMldeld on Railways, 590. and note; 2
fcstory, 680; Tapfield v. Hillman, 7 Jur., 771.

In the case of lapJUld v. HiUman, Tindall,
Gh. fA, se<ims inclined to the opinion that, even
at law. a mortgage security of future acquisi-
tions mi^ht have effect given to it. if the terms
indicated an intent to comprehend them.

The counsel for the appellee referred to the
case of Chapman v. Weimer, 4 Ohio St., 481,
as denying effect to a mortgage upon after
acquired property. But that was a case at law ;
and even there the court held that the mort

?:age attached after the property was acquired,
ro'm the time the right was asserted by the
mortgagee.

In conclusion upon this point, we are satis-
fied that the mortgage attached to the future
acquisitions, as described in it, from the time
they came into existence. As to the claim of
the judgment creditors, there are several an-
swers to it.

In the first place, the mortgage being a valid
and effective security for the bondholders of
prior date, they present the superior equity to
have the propertv in question applied to the
discharge of the bonds. It is true, if the prop-
erty covered by the mortgage constituted a
fund more than sufficient to pay their demands,
the court might compel the prior incumbrancer
to satisfy the execution, or. on a refusal, the
mortgage having become forfeited, compel a
foreclosure and satisfaction of the bond debt,
so as to enable the judgment creditor to reach
the surplus. Or the court mi^ht, upon any
unreasonable resistance of the claim of the ex-
ecution creditor, or inequitable interposition
for delay, and to hinder and defeat the execu-
tion, permit a sale of the rolling stock sufficient
to satisfy it. But no such ground has been

g resented, or could be sustained upon the facta
efore us. On the contrary, it cannot be de-
nied but that the whole of the property mort-
gaged is insufficient to satisfy the bondholders
under the first mortgage, much less when those
under the second are included. To permit
any interference, therefore, on the part of the
judgment creditors, with a view to the satis-
taction of their debt, consistent with the supe-
rior equity of the bondholders, would work
only inconvenience and harm to the latter,
without any benefit to the former. 8 Hare, Ch .
416; 9 Ga.* 377; Redfleld on Railw., 606; 5
Ohio St., 92.

In the second place, the judgment sought to
be enforced by the defendants was recovered
upon bonds of the second issue, and secured,
in common with all the bonds of that issue,
upon this property, bv virtue of the second
mortgage. These boncfhotders have a common
interest in this security, and are all equally en-
titled to the benefit of it; and in case of a de-
ficiency of the fund to satisfy the whole of the
debt, in equity, a distribution is made among
the holders pro rata. The payment of the

448

bonds of the second issue are also postpoqed
until satisfaction of the issue comprehended
within the first mortgage, as the second was
taken with a full knowledged of the first. To
permit, therefore, one of the bondholders un-
der the second mortage to proceed at law in
the collection of his debt upon execution, would
not only disturb the pro rata distribution in
case of a deficiency, and give him an inequita-
ble preference over his associates, but also have
the effect to prejudice the superior equity of
the bondholders under the first mortgage, which
possesses the prior lien.

As the judgment creditors can have no in-
terest in the management or disposition of the
propertv. except as bondholders, on account
of the aeficiency of the fund, it is unimportant
to inquire whether or not the court was right
in refusing a receiver, or to direct a sale of the
road, with a view to a distribution of the pro-
ceeds. For aught that appears, the road has
been managed, under its present directors,
with prudence and fidelity, and to the satisfac*
tion of the bondholders, the parties exclu-
sively interested.

Another objection taken to the validity of the
mortgage is, the want of power under the char-
ter to construct tbe road from Hudson to Mil-
lersburg, and consequently to borrow money
and pledge the road for this purpose. There
is certainly some obscurity in the statutes cre-
ating this corporation as to the extent of the
line of its road; but we agree with the court
below, that, upon a reasonable interpretation
of them, the power is to be found in their char-
ter. They were authorized to construct the
road from some convenient point on the Cleve-
land and Pittsburg road, in Hudson, Summit
County, through Cuyahoga Falls, and Akron,
to Woostcr, or some point on the Ohio and
Pennsylvania Railroad, between Massillon and
Wooster, and to connect with said Ohio and
Pennsylvania Road, and any other railroad
running in the direction of Columbus. It was
clearly not limited, in its southern terminus,
to its connection with the Ohio and Pennsyl-
vania road, for there is added. " and any other
railroad running in the direction of Columbus.*'
The extension of the road to the Ohio Central
road at Zanesville, or at some other point on
this road, comes fairly within the description.

We have not referred particularly to the au-
thority of the Company, under the statute laws
of Ohio, to borrow money and pledge the road
for the security of the payment, as no such
question is presented in the brief or was made
on the argument. Indeed, the authority seema
to be full and explicit.

Decree hdow^ affirmed,

Clted-24 How., 4flO; 1 Wall., 287.268 : 6 Wall.. TSS;
4 Otto. 887 ; 6 Otto, 16 ; 4 ClIIT.. 597 ; 1 Woods., 018 ; B
Blss., 848; 8 Blss., 3*27; 6 Bl68.,534: 8 Btes., 4€6: t
Saw, 463: 1 Holmes. 384; 2FlippfD. 447 ; 14 Bk. Ueir.,
805-469: 25 N. J. Eg., 21 : 26 N. J. £q., 403; 13 Am.
Rep., 600 (54 N. Y. 314) ; 22 Am., Rep., 654 (65 Inat.,
450) ; 24 Am. Rep., 41 (67 Me., 887) ; 88 Am. Rep.,
126 (61 Iowa, 184) ; 35 Am. Rep., 565 (83 N. C, 75).

ANN R. DERMOTT. Plff. in Er.,

ZEPHENIAH JONES.

(See S. C, 28 How., 220436.)

Oontraet, aUeraUons in — tme (tf performance^

64 U.S.

1889.

Dbbhott y. JONSB.

220-285

condition precedent — concurrent pronmes —
averment not proved — ctecepiance—ipeekU eon-
tract — recoupment ofdamoQes.

Where a special contract for erection of build-
ings had been departed from in the course of its
execution, by defendant insisting that alterations
and additions should be made In the bulidlnjrs after
they were begun, conti^ry to the speciflcatlons of
tho contract, although it may have delayed their
completion, vet It having been assented co by the
plaintiff, without anv stipulation that the time for
the performance of toe whole was to be delayed, It
must bo presumed to have been undertaken by the
plaintiff to be done, as to time, according to the
original contract.

A failure by the phUntlff to finish and deliver on
the day agrrced. Is fatal to a recovery upon the
special opntrAot. where It was the intenttOR oT tne
paKi^ That the performance of the work was to be
a condition precedent to payment.

Whether contracts are dependent or independent,
considered.

Where the agreements go to the whole of the con-
siderations on t)oth sides, the promises are depend-
ent, and one of them is a condition precedent to the
other.

Concurrent promisee are those where the acts to
be performed are simultaneous : and either party
may sue the other for the breach of the contract,
on showing, cither that he was able, ready and will-
ing to do nis act at a proper time and in a proper
way, or that he was prevented by the act or default
of the other contracting party.

Where an installment was to be paid on an ap-
pointed day, if the work should then be finished,
and the plaintiff avers that he bad complied with
the contract, and he gave no proof to sustain the
averment: held, that the evidence entitled the de-
fendant to a verdict on that count.

Tho acceptance of the buildings by the defendant
as they had been constructed by the plaintiff, was
not any relief of the plaintiff from his undertaking
to finish them In the time specified In the contract.

While a special contract remains unperformed,
the party whose part of it has not been done, oan«
not recover a compensation for what he had done,
until the whole shall be completed.

Where something has been done under a special
contracts but not In strict accordance with that con-
tract, the party cannot recover the remuneration
stipulated for in the contract.

Still, if the other partv has derived any benefit
from the labor dorie, the law implies a promise on
his part to pay such a remuneration as the benefit
conferred is really worth ; and to recover it, an ac-
tion of indcbUatim atmimpsU is maintainable.

In the trial of such an action, the defendant
may be allowed a recoupment from the damaves,
claimed by the plaintiff, for such lo98 as he snail
have sustained from the negligence of the plaintiff.

But such recoupment cannot be claimed unless
the defendant shall file a definite statement of his
claims, with notice of it to the plaintiff.

Argued Jan. 26, 1860. Decided Feb, tO, 1260.

IN ERROR to the Circuit Court of the United
States for the District of Columbia.

This was an action of debt, brought in the
court below by the defendant in error lo re-
cover the second installment of $5,000, and for
the value of certain extra work done and ma-
terials furnished under a certain contract.

The trial below resulted in a verdict and judg-
ment in favor of the plaintiff, whereupon the
defendant sued out this writ of error.

A very full statement of the case appears in
the opinion of the court.

Meetrn. Robert J. Brent and John
Prentiss Poe, for the plaintiff in error:

Ist. The plaintiff in error will contend that
the court below erred in receiving and filing the
amended narra^io, for the following reasons:

1. Because neither the said declaration nor

NoTB.— lYme, irAen of the essence of the contract.
Bee note to Emerson v. Slater, 00 U. 8.

See 88 How.

any of the counts therein contained come with-
in the terms and intent of the general leave and
allowance of amendment granted by the court
in this cause, under color of which they have
been filed by the plaintiff.

2. Because the 8d and 4th counts are quite
beyond the court's power, authority, and com-
petency.

8d. The court below also erred in sustaining
the demurrer of plaintiff to the defendant's 3(1
plea, and in overruling the demurrer filed by
the defendant to the 2d count of amended nar-
ratio, and in rejecting the defendant's 5th pray-
er. The question here is, whether by the true
construction of the contract declared upon, it
was agreed between the parties that the finish-
ing and completing the building on or before
October 1st, 1851, was a condition precedent
to the plaintiff's right of recovery for the in-
stallment sued for; the plaintiff in error main-
taining that the day named was of the essence
of the contract, and that a failure to complete
upon that day was a breach fatal to the recov-
ery upon the contract, and that there is nothing
in the record to show a valid excuse for such
failure, or waiver of her rights by plaintiff in
error, which will authorize a judgment in this
case against her. To decide this question, we
must look at the contract itself, and decide "on
the reason and sense of the thing, as it is to be
collected from the whole contract."

2 Pars. Cont., 89; Ritchie v. Atkinson, 10
East, 205.

The words of the contract for payment are,
"in consideration of the covenants." &c. These
have always been held apt words to create a
condition.

1 Tidd Pr., 442; Watchman v. Crook, 5 Gill
& J., 258; Thorpe v. Thorpe, 1 Ld. Raym., 665;
Acherley v. Vernon, Willes, 157.

Courts lean against construing covenants as
independent.

Dakin v. WiUiams, 11 Wend., 67.

There can be no doubt that before the de-
fendant in error cotild recover upon this con-
tract for the 2d installment, it was incumbent
upon him to aver and prove that he had fin-
ished and delivered over the buildings as re-
quired by the specifications This, it is l^Iieved,
is not denied.

Pordage v. 0&, 1 Saund., 820.

But it is said that though performance was
necessary before an action would lie. yet per-
formance on or before the Ist of October was
not necessary to authorize a recovery upon
the contract, inasmuch as the money was to be
paid in installments, the first installment being
due before the completion of the buildings.
This, however, we deny, and sound reason and
the weight of authority, it is submitted, fully
establish that this is a condition precedent.

2 Pars. Cont., 40, 41, 189, 88, note 9; Cun-
ningham, V. Morrell, 10 Johns., 203; 12 Pa.
St., 97; Grant v. Johnson, 5 N. Y., 247; Piatt,
Cov.. 88; Watehmanv, Crook, 5 Gill & J., 254;
Slater v. Emereon, 60 U. S. (19 How.), 224;
Johnson v. Heed, 9 Mass., 78; Lordy, Belknap,
1 Cush., 279; Bean v. Atwater, 4 Conn., 4;
Kettle Y. Harvey, 21 Vt., 801; McLure^, Rush,
9 Dana, 64; Ramsburg v. McOahan, 8 Gill. 841 ;
1 Chit. PL, 825-827.

The case of Terrg v. Duntee, 2. H. Bl., 889,
though it has been several times followed, has

448

220-285

SUFRBlCB COUBT 09 T&B VkITBD StATSA.

t>BC. Term,

been much oftener repudiated, and is not now
regirded aa an authority.

The next question is, whether the alleged de-
parture of the plalntifF in error from the terms
of the said agreement, and her reauiring of the
defendant in error to perform adaitional work
and furnish additional materials, and the sink-
ing in of the earth foundations under said
building, were a sufficient excuse for his not
completing the buildings by the time specified,
which , as we have seen, was of the essence of
the contract.

Now, if time is material, it can no more be
dispensed with by parol than any other portion
of the contract; and if, therefore, the defendant
in error completed the work, but not in strict
conformity to the requirements of the contract,
he must show some better reason for such fail-
ure than extra work required. The alterations
and suggestions made during the progress of
the work were assented to by him, and amounted ,
therefore, to a new contract, not a performance
of the old, or a sufficient obstacle to its per-
formance. If the defendant in error agreed
to do the extra work required without obtain-
ing, as he might have done, an extension of the
time for the stipulated original work, he under-
took to do the work, as modified, within the
stipulated time or to run the risk of so doing.
The original contract remains in force in every
point where not modified. The sinking of the
earth foundations clearly is not a valid excuse
for nonperformance, for ** the accident to ex-
cuse the not doing must not be only unavoida-
ble, but must render the act physically impos-
sible, and not merely unprofitable and inexpe-
dient by reason of an increase of labor or cost."

2 Pars. Cont.,184, 188.

Competent skill being implied, Jones was
obliged to construct a building which was fit
for use and occupation : and it is no defense that
it was made according to the plan of the speci-
fications.

Chit. Cont., 59, 784; 14 Mass., 282; 6 Littell,
198; 6 T. R, 750; 1 Pars. Cont., 78, noUz; 4
Barn. & C, 845, 1 H. Bl., 161; 2 Chit., 811; 1
Car. & P., 852: 8 Car. <& P., 479; 8 Camp., 451 ;
10 East, 580; 1 Pet. C. C. 86; 8 Stark, 6; 7
East, 481 ; 22 Pick, 881.

It may next be inquired whether the accept-
ance by plaintiff in error, of the buildings six
months after the time when they should have
been delivered, was a waiver of the condition
precedent as to performance within the time.
Under the circumstances, no stress can be laid
upon this acceptance. The plaintiff in error
was obliged to accept the buildings, for they
were upon her own land. The authorities are
uniform and clear, that if a party seeking has
not performed the work in exact accordaDce
with the stipulations of the contract, and the
failure has not been produced by the act of God
or the wrongful conduct of the other party,
and there has been no waiver, he is remitted to
indebitatus assumpsU, upon a quantum meruit
for his labor and a quantum valebaat for his
materials. Many of the cases do not even per-
mit a recovery at all.

Hayward v. Leonard, 7 Pick., 181 ; Taft v.
Montagus, 14 Mass., 282; Watchman v. Orook,
5 Gill <& J., 254; Bameburg v. MeCahan. 8 Gill
841 ; Slater v. Emmon, 60 U. S. (!9 How.), 224;
Ladus V. Seymour, 94 Wend., 61; 2 Greenl.

444

Ev., sec. 104; JeweU v. Sekroeppei, 4 Cow., 564;
Jennings v. Camp, 18 Johns., 94; Kettle y. Uar-
WW, 21 Vt.. 801 ; Bum v. MiOer, 4 Taunt., 745;
Chapel V. Hiekee, 2 Cr. & M., 214; Thornton v.
Place, 1 M. & Rob., 218; Smith v. Wilson, 8
East, 487; Littler v. Holland, 8 T. R., 592;
Britton v. Turner, 6 N. H., 481; Gregory v.
Mack, 8 Hill. 880; Phillips v. Bose, 8 Johns.,
898.

The demurrer of plaintiff in error to the 2d
count of the amended narraiio should also have
been sustained, because the installment sued
for is not recoverable in an action of debt, but
if recoverable in any form of action, it should
have been an action of covenant.

Debt will not lie on a sealed contract for any
installment but the last, unless ther« is a pen-
alty.

Piatt, Cov., 108; 2 Saund., 804, n. 6; 1 H.
Bl., 554; 8 Bneed. 470.

Nor docs debt lie on implied contract.

1 Chit. PI.. 103, 118; 1 Cranch. 844; 2 McL.,
127; Evans Pr., p. 58; 1 Pet. C. C, 147.

8d. The demurrer to the 8d and 4th counts
ought also to have been sustained.

They are defective for the reason in part
urged against the 2d count, and moreover, they
show neither promise nor agreement to pay the
debt.

1 Chit. PI., 114, 115; 2 Chit. PL, 886; 3
Bam. & Aid., 208-209.

4th. The court below erred in refusing to
allow the plaintiff in error to give evidence of
the failure of the defendant in error to put up
the granite front steps, with the view of recoup-
ing against his claim the damages occasioned
by such failure.

SiekUs V. Pattison, 14 Wend., 257.

Messrs. Bradley* Badgrer and Carlisle.

for defendant in error:

1. As to the form of action.

It was contended below, that the sum of $5,-
000 demanded in the 1st and 2d counts was a
mere installment of one entire debt, and that
in such case there can be but one action of
debt, and only after all the installments have
fallen due. But so long ago as March v. Free-
man, 8 Lev., 888, it was held, that where the
nature of the case imported that the parties
looked to distinct and several payments in view
of the character of the consideration for the
whole sum, there debt would lie for such several
payments as they fall due.

»ee, also, Fhw v. Marsteller, 2 Cranch, 10;
Bahorg v. Peyton, 2 Wheat., 885: Woods v. Bus-
sed 5 Bam. & Aid., 942; Laidler v. Burlinson,
2 Mees. & W., 614; Cunningham v. MorreU, 10
Johns., 205.

The question as to whether these covenants
are mutual and independent, or dependent, and
whether the completion of the stores and ware-
house by the 1st of October was a condition
precedent to the payment of the money, de-
pends upon the intention of the parties, to be
derived from the contract itself, the subject mat-
ter, and the surrounding circumstances under
which it was made. •

The case of Terry v. Duntze, 2 H. Bl., 889,
is in point, and if that case is law, there can be
no doubt that this action is properly brought It
is said to have been overruled in 10 Johns.. 208;
5 GUI & J., 254; 5 Wend., 496; 1 tteld., 257: 9
Mass., 78; 1 Cush., 279; 4 Conn., 4; 21 Vt.,

64 V.i.

1859.

DSBMOTT y. JONB8.

220-235

901 ; but the principle will be found fully sup-
ported in Heard v. WadJicm, 1 East. 625, 681;
8eer»yr, /l>wfer,2 Johns., 272,887; WUcoxy. Ten
Eyek, 5 Johns., 78; 0<mUner v. Corson, 15
Mass., 500; Beab v. Moor, 19 Johns., 841; Web-
ster V. Warren, 2 Wash. C. C, 456; see, also,
P. W. df B. R, R Go. V. Howard; 18 How., 888,
389.

The non-performanoe bj the day does not
go to the whole consideration of the contract,
and therefore they are not dependent.

Boone V. Eyre,'l H. Bl., 278, noU; 1 Wm.
8aund.,820.

If the time of completing the stores and ware-
house was material, and he was delayed by the
defendant beyond the Ist of October, she can-
not ayail herself of that delay.

Bank of Columbia v. Hagner, 1 Pet., 467;
FannenY. Beauford, 1 Bay, 287; Clendennen
y. Paulsel, 8 Mo., 230.

And in such case performance need not be
ayerred.

MaraiiaU v. Craig, 1 Bibb, 879; Gotteh v,
IngermU, 2 Pick., 292.

• And if ayerred, proof of such acts will sup-
port the averment.

Farnham y. Rom, 2 Hall, 167.

2. Under this point the counsel first examined
the exceptions to the eyidence, and then the
prayers of defendant for instructions.

The 2d prayer for instruction contains the
proposition that the plaintiff could not recover
upon the Ist count, unless the jury should find
that in point of fact the stores and warehouse
were delivered on the 1st of October.

The 5th prayer contains the proposition that
if the plaintiff, Jones, had constructed the stores
and warehouse *' in strict conformity to the
specifications made a part of said contract,"
yet, nevertheless, he was bound for the defects,
if any, which were occasioned by such " con-
formity," if in fact the stores and warehouse
were not delivered fit for occupation on the 1st
of October.

Both these propositions, it is submitted, are
untenable. The first goes to the root of the
Ist count.

It assumes that the time was of the essence
of the contract.

It will be observed that the time is laid in
this count under a aeiUcet. This would not
vary the case if the time were material, but if
the time had been stated without the videUeit, it
might have been held necessary to prove it as
laia, although otherwise immaterial. The
materiality cannot consist in the precise day in
this case, so that a delivery on the morning of
the next day would not support the action ; nor
if delivery on the stipulate day and a single
brick and unlaid, or a single nail undriven,
would the action be defeated. The language
** the said stores and warehouse being then
finished, &c.," shows that the meaning was,
Uiat if they were not done on that day, the
money should not be due then; but if done
within a reasonable time thereafter, the mone^
phould then be due. But above all, the evi-
dence shows that a strict compliance was pre-
vented by the defendant. She was " the cause
wherefore the condition could not be performed,
and therefore shidl never take advantage for
non- performance thereof."

Co. Litt., 2<j6, B.

Bee 28 How.

8. We contend that even if there be error as
to the 1st count, the 2d count is good. It is in
accordance with the rules, tliat the execution
of the 'work being a condition precedent to
the right to demand the money, the plaintiff
must show either, first, a performance; or sec-
ond, an offer to perform rejected b^ the de-
fendant; or third, his readiness, until the de-
fendant discharged him or prevented the exe-
cution of tiie matter to be performed.

Chit. Cont., 787, 7th Am. ed; 1 Chit. PL,
826. 867, ed. 1851.

The secound count avers performance in rea-
sonable time and acceptance by the defendant.

This is admitted by the demurrer, and is also
proved.

See Van Buren v. Diggei, 11 How., 470.

The count was in debt for a sum certain. It
was confessed by the demurrer and left noth-
ing uncertain ; but the rijrht of the plaintiff be-
low appeaitid thereon with judicial certainty.

Taylor v. Capper, 14 East, 442; 2 Saund.,
107, note 2.

Judgment should be given here, according to
the right as it appears upon the whole record.

4 East. 502 ; 2 Str. , 1055 ; 5 East, 266 ; Plowd. ,
66.

This court has decided that on a writ of er-
ror the whole record is to be inspected.

Bank U, 8. v. Smith, 11 Wheat., 171; 8eoU
v. Santffbrd, 60 U. S. (19 How.), 408.

Mr. Justice Wayne delivered the opinion
of the court:

This record shows that the plaintiff and the
defendant entered into a buildmg contract, un-
der seal with specifications annexed, on the2ixl
April, 1851. It was agreed between them, that
Jones, the plaintiff, should do, in a good, sub-
stantial and workmanlike manner, the houses,
buildings, and work of every sort and kind de-
scribed in a schedule annexed to the contract,
of which it was a part; that he should procure
and supply all the materials, implements and
fixtures, requisite for executing the work in all
its parts and details; and that the stores front-
ing on Market Space, and the warehouse on
Seventh Street, should be finished and ready
for use and occupation, and be delivered over
to the defendant, on the first day of October
after the date of the contract, and all the rest
of the work on the first day of December after-
ward. The defendant agreed, upon her part,
to pay the plamtiff for the peforraance of the
work, and for the materials furnished, $24,000
by installments: $5,000 on the 1st day of July,
1851; $5,000 on the 1st day of October follow-
ing; it being expressed in their contract, that
the stores and warehouse were then to be de-
livered to the defendant ready for use and oc-
cupation; and that the residue of the $24,000
was to be paid to the plaintiff on the 1st day
of January, 1860. with interest upon $4,000
of it from the 1st day of May, 1851, and
with interest on $10,000 from the 1st day of
December, 1851. We do not deem it necessary
to notice the other covenants of the contract, as
they have no bearing upon the case as we shall
treat it.

The suit, as originally brought, is an action of
debt for the recovery from the defendant of the
second installment of $5,000, and for the value
of certain extra work dope and materials f ur-

4i6

220-235

BCFRSICS COUBT OV THB UhITBD BtATBA.

Dbc. Tujc,

nished by the plaintiff for the defeDdant's use.
The origiDal declaration contains four counts:
first, charges the defendant in the sum of $6,-
000 for work and labor done, and matei'ials
furnished and used by her in the erection and
finishing certain stores and buildings in the
City of Washington; second, for a like sum
paid by the plaintiff jfor the defendant ; third,
for a like sum had and received ; and fourth,
for a like sum sum paid, laid out, and ex-
pended by the plaintiff for defendant at her
request. The defendant pleaded to the declara-
tion four pleas: first, that she was not indebted
as alleged ; second, a special plea setting out in
detail a contract under seal, with the plaintiff,
for the erection of such buildings as are men-
tioned in it, and for the completion of them —
protesting that the plaintiff had not complied
with the terms of the same, and declaring that
the sum of $5,000 claimed by the plaintiff was
the second installment, which, bv the contract,
was to be due and payable to the plaintiff on
the 1st day of October, 1851, and denying that
the buildings were done by that day. or that
any claim for the $5,000 had accrued before
the bringing of the suit, by reason of any con-
tract or agreement different from the special
contract, or for any consideration other than
the $5,000 claimed in the declaration. In the
third plea, the identity of the sum sued for
with the second installment is reaffirmed, pay-
able on the 1st of October, 1851, upon condi
tion that the buildings and stores should be
completed and ready for use by that day — aver-
ring performance on her part of the conditions
and covenants of the contract, and non per-
formance on the part of the plaintiff, especial-
ly his failure to complete and have ready for
use the warehouse and stores by the time speci-
fied. The fourth plea refers to the special con-
tract, avers performance on her part, non-
performance on the part of the plaintiff, and
especially, that he had not finished and com-
pleted the buildings and stores by the day speci-
fied in the contract', or at any time, either before
or after that day. At this point of the pleading
the plaintiff applied to be permitted to amend his
declaration, and added to it four counts. The
first sets out in detail the special contract re-
ferred to in the defendant's second, third and
fourth pleas ; avers performance generally, on his
part, and non pef ormance on the part of the de-
fendant. The second count is the same as the
first, down to the averment of performance by
plaintiff inclusive, and then it avers that the de-
fendant departed from the stipulations of the
contract, and required the plaintiff to do addi-
tional work, and to furnish additional materi-
als, whereby the defendant delayed the plaintiff,
and prevented him from completing the build-
ings by the time agreed, which the plaintiff
would otherwise have done. It is then averred,
that notwithstanding the additional labor, the
plaintiff had completed the work in a reason-
able time after the 1st day of October, 1851, to
wit: on the 4th of December following, and
that the defendant then accepted the same,
whereby the second installment of $5,000 be-
came payable. The third count is substantial-
ly a repetition of the original declaration, and
tiie fourth claims $10,000 for work and labor
done, and for alike sum laid our by the plaint-
iff for the defendant, from all of which his

446

rieht of action had accrued before it was in-
stituted.

The defendant filed three pleas to the first
count of the amended declaration: 1st. that she
was not indebted as was alleged; 2d, that the
plaintiff had not performed the special agree-
ment; and 8d, that he had not performed the
condition precedent of the contract, to complete
the building, which he had agreed to do by
the Ist day of Ocober, 1851. To the rest of
the count the defendant demurred. As the
verdict of the jury and the judgment rendered
for the plaintiff are upon the first amended
count, contrary to instructions asked of <the
court by the defendant, we shall not notice
the subsequent pleadings and proceedings in the
case, and will confine ourselves to what we
consider to have been the legal rights of
the parties under the original declaration and
the first amended count. The evidence shows
that the three stores and the warehouse were
not finished by the Ist of October, 1851. It is
also proved that the special contract had been
departed from in the course of its execution;
that the defendant insisted that alterations and
additions should be made in the buildings after
they were begun, contrary to the specifications
of the special contract, and that the plaintiff
had yielded to her requirements, it may
have delayed the completion of the stores
and warehouse, as it increased the work to be
done; but it having been assented to by the
plaintiff without anv stipulation that the time
for performance of the whole was to be de-
laved, it must be presumed to have been under-
taken by the plaintiff to be done, as to time,
according to the original contract. The sink-
ing of the wall probably caused the delay, but
that cannot give to the plaintiff any exemption
from his obligation to finish the stores and
warehouse on the 1st of October, without fur-
ther proof as to the cause of it; nor could it, in
any event, entitle him to an instruction from
the court that he might recover under a count
or a special contract, in which he avers that
the work had been completed by him on the
1st of October in conformity with it. The de-
fendant in the court below, plaintiff in error
here, to maintain the issues on her part, and to
reduce the damages claimed by the plaintiff,
introduced witnesses to show that the work,
though it had been done, had not been so in a
skillful and workmanlike manner, and that the
materials used for it were of an inferior kind, es-
pecially in the construction of the store wall,and
that it was so deficient in other particulars, that
she had been put to a large expense to make the
buildings fit for use and occupation, which
amounted to $10,000. The plaintiff gave re-
butting testimony, and then the defendant
prayed the court to instruct the jury, ** that if
the three stores and warehouse were not fin-
ished fit for use and occupation, and delivered
to her on the 1st of October, 1851, but were at
the time when they were delivered wholly
unfit and unsafe for occupation, with the waifs
of some of them sunken out of plumb, and
cracked, and in danger of falling, so as to be
utterly untenantable, then the plaintiff was
not entitled to demand and recover in this
order the said sum of $5,000, as the stipulated
installments which the special contract purports
to make payable on the 1st October, IbOl, but

64 C.Si.

1859.

Dehhott y. Jon£8.

220-235

that the plaintiff was entitled to recover only
the value of his worlc, after deducting the cost
and expense incurred by the defendant in re-
pairing the stores and warehouse, to render
them St for occupation, but that the plaintiff,
as claimant, was entitled only to nominal dam-
ages.

Also, if the defendant did not, at any time
whatever, execute and finish, ready for use and
occupation, and deliver in that state and con-
dition to the defendant, the stores and ware-
house, but had delivered them over to the
defendant in a state wholly unsafe and unfit
for use, and untenantable, &c., &c., and that
the defendant had been obliged to reconstruct
the walls, and to refix the buildings, so as to fit
them for use and occupation, at her own ci>sts
and charges, then that the defendant may
recoup or deduct the same against the plaintiff's
claim for the said installment of |o,000 claimed
in the suit, or the value of the work done by
the plaintiff upon the stores and warehouse;
but that, in all events, the plaintiff could only
recover nominal damages.

These instructions the court refused to give,
without the following qualifications:

'If the jury shall find from the evidence
that the plaintiff, Jones, has executed the
work according to the specifications forming a
part of the contract, in a skillful, diligent, and
C}\refu1 and workmanlike manner, and that his
performance of it was with the knowledge and
approbation of the defendant, then they should
find for the plaintiff the said sum of $5,000,
with interest from the date of the delivery of
the stores and warehouse to the defendant."

The defendant excepted to the refusal of
the instructions as they had been prayed for,
and to the qualifications of them as they were
given to the jury

There is error in this instruction. The
count and the plea of the defendant, and the
instruction asked, raised the construction of
the special contract, whether or not the right
of the plaintiff to recover the second install-
ment did not depend upon the completion of
the stores and warehouse by the 1st of October,
1851 ; whether that was not a condition prec^-
ent, or a case in which the parties had agreed
— one to deliver the buildings finished, accord-
ing to the special contract, and the other to
pay the second installment concurrently, if
they were then so delivered. A failure by the
plaintiff to finish and deliver on that day is
fatal to a recovery upon the special contract.
The plaintiff in the first amended count de-
clares upon it as such, aver» his performance
accordingly, and the proof is that he had not
so performed. We infer, from the whole con-
tract, that it was the Intention of the parties
that the performance of the work was to be
a condition precedent to the payment of the
second installment. There is no word in the
contract to make that doubtful.

The plaintiff undertook to furnish the materi-
als and to construct the buildings, according to
specifications. Part of them were to be fin-
ished, and to be delivered to the defendant, on
the 1st of October, 1851, and the residue on the
1st December afterwards. For the whole, the
defendant was to pav $24,000— $5,000 on the
l8t of July, le»5l; lo^^OOO on the 1st of October.
1^31, if the btores and warehouse were then

See 26 Uow.

finished for use and occupation, and delivered
over on that day to the defendant; and if that
was done, then the balance of the $24,000 was
to be paid on the 1st of January, 1860, with
interest, as mentioned in the special contract.

The words of the contract for payment are,
**\n consideration of the covenants, and their
due performance." Such words import a con-
dition. It is difficult at all times to distinguish
whether contracts are dependent or independ-
ent; but there are rules collected from judicial
decisions, by which it maybe determined. We
have tested the correctness of them by an ex-
amination of several authorities.

•* When the agreements go to the whole of
the consideration on both sides, the promises
are dependent, and one of them is a condition
precedent to the other." Such is the case with
the special contract with which we are now
dealing. ' ' If the agreements go to a part only
of the consideration on both sides, the promises
are so far independent. If money is to he paid
on a day certain, in consideration of a thing to
be performed at an earlier day, the perform-
ance of that thing is a condition precedent to
the payment; and if money is to be paid by in-
stallments, some before a thing shall be done
and some when it is done, the doing of the
thing is not a condition precedent to the for-
mer payments, but is so to the latter. And if
there be a day for the payment of money, and
that comes before the day for the doing of the
thing, or before the time when the thing from
its nature can be performed, then the payment
is obligatory, and an action may be brought for
it, independently of the act to be done. Con-
current promises are those where the acts to be
performed are simultaneous; and either party
may sue the other for a breach of the contract, on
showing, either that he was able, ready and
willing to do his act at a proper time and in a
prooer way, or that he was prevented by the act
or aefault of the other contracting party." 2
Pars. Cont. ch. 3. 189.

The first installment was to be paid on an
appointed day, in confideration of the work to
be begun ; and the second installment was to be
paid on a subsequent day, if the work should
then be finished and delivered over to the de-
fendant, ready and fit for use and occupation.
Before that day it could not have been demand-
ed; on that day, the work having been per-
formed, it might have been. The evidence
shows that the work had not been done on the
Ist of October, 1851, and was not finished until
the Ist of December.

The plaintiff avers in his first amended count
that he had, on his part, complied with his un-
dertaking in the special contract. The issue
upon it is, that he had not doqe so, and he gave
no proof to sustain the averment.

The evidence entitled the defendant to a ver-
dict on that count; but the court, without re-
gard to the time fixed upon for the work to be
finished, instructed the jury, that if the work
had been done according to the specifications
forming a part of the contract, in a skillful and
workmanlike manner, or if his execution of it
was with the knowledge and approbation of
the defendant, then they were to find for the
plaintiff the sum of $5,000, with interest from
the date of the delivery of the stores and ware
house. It must be obvious that this instruction

447

26a-273

SUFBEXB COUBT OF THB UkITRD StATBS

D£C.T£B1I,

makes between the parties a diif erent contract
from that into which they had entered, and one
different from that the plaintiff had declared
upon.

The plaintiff gave no evidence to support the
count ; out there was evidence showins^ the re-
verse of performance on his part. For this
error in the court's instruction to the jury upon
the first amendment count, we shall remand the
case for another trial upon the plaintiff's orig-
inal declaration in debt with the common counts,
as in indebitatus asmimpsit.

We do not consider that the plaintiff's right
to recover upon that declaration was in any
way affected by the extra work which was done
upon the requisition of the defendant, or by the
increase of materials which he furnished for that
purpose; or thai the sinking of the foundation
of the buildings excused him from finishing
the work by the time specified; or that the
acceptance of the buildings by the defendant as
they had been constructed by the plaintiff was
any release of the plaintiff from his undertak-
ing to finish them in the time specified in the
contract. But after that time had passed, the
plaintiff continued, with the knowledge and
permission of the defendant, and also with the
knowledge of her superintending architect, to
do the work specified in the contract, and also
to do the extra work, and to furnish the materi-
als necessary for both. And when the work
was done by the plaintiff, however imperfectly
that may have been, the defendant accepted it.

The law in such a case implies, that the work
done and the materials furnished were to be
paid for. The general rule of law is, that while
a special contract remains open — that is, un-
performed— the party whose part of it has not
not been done cannot sue in indebitatus assump-
sit to recover a compensation for what he has
done, until the whole shall be completed. This
principle is aflilrmed and acted upon in Cutter v.
P^noeU, 6 T. R., 820; also in HuOe v. Height^
man, 2 East, 245, and in several other cases.

But the exceptions from that rule are in cases
in which something has been done under a
special contract, but not in strict accordance
with that contract. In such a case, the party
cannot recover the remuneration stipulated for
in the contract, because he has not done that
which was to be the consideration of it. Still,
if the other party has derived any benefit from
the labor done, it would be unjust to allow him
to retain that without paying anything. The
law, therefore, implies a promise on his part to
pay such a remuneration as the benefit con-
ferred is really worth ; and to recover it, an ac-
tion of indebitatus assumpsit is maintainable.

Such is the law now in England and in the
United States, notwithstanding; many cases are
to be found in the reports of both countries at
variance with it. It was recognized by this
court to be the existing rule in the case of
aiater v. Emerson, 19 How., 224, 289.

The difference between the rule now and in
earlier times, it is believed, has caused much of
the difficulty in the establishment of the pres-
ent rule. Formerly it was held, that whenever
anything was done under a special contract not
in conformity with it, the party for whom it
was done was obliged to pay the stipulated
price; but that he might resort to a cross action,
to indcnmify himself for the deficiency in the

448

consideration. BUwr v. DatiSt t794, cited in 7
East, 470. See Smith's L. cases, in the notes
following the case of Gutter v. PinceU, 2d. vol.,
for a full description, historical and chrono-
logical, of the rule as it now prevails and as it
formerly was.

The rule, as it now exists, has been recently
discussed and affirmed in the Queen's Bench,
in the case of Munro v. Phelpes, 8 El. & B.,
789;92Eng. C. L.

It has been the rule in the courts of New
York for more than thirty years. In the case of
Jeu>eU V. Schroeppel, 4 Cow., 564, it was decided,
that if there be a special contract under seal to
do work, and it be not done pursuant to the
agreement, whether in point of time or in other
respects, the party who did the work may re-
cover upon the common counts in assumpsit,
for work and labor done. If, when the time
arrives for performance, the party goes on to
complete the work, with the knowledge of his
employer, it was evidence of a promise to pay
for the work. So if the employer does not ob-
ject.

This rule prevails, also, in Massachusetts, in
Pennsylvania, and in several of the other States.
Also in Alabama, as may be seen in the case of
Me Vay v. Wheeler, 6 Port. ,201. It is discussed,
with a very accurate discrimination of its ap-
plication, in the 2d vol. of Professor Parsons
upon Contracts.

In the trial of such an action, where the de-
fense is not presented as a matter of set-off,
arising on an independent contract, but for the
purpose of reducing the plaintiff's damages,
because he had not complied with his cross
obligations arising on the same contract, the
defendant may be allowed a recoupment from
the damages claimed by the plaintiff for such
loss as she shall have sustained from the negli-
gence of the plaintiff. Such evidence is allowed
to prevent circuity of action, and to prevent
further litieation upon the same matter. It
may be welt to say, that the court allowed a
recoupment in Oreen v. Biddle, 8 Wheat, 1,
to a disseisor, who was a bona fide occupant of
land, for the improvemement made by him
upon it, against the plaintiff's damages. But
such recoupment cannot be claimed imless the
defendant shall file a definite statement of his
claims, with notice of it to the plaintiff, suf-
ficiently in time before the trial term of the case
to enable the latter to meet the matter with
proof on his side.

We have pursued the case in hand further
than mav have been necessarjr, but it was
thouffht best to do so, as the points now here
ruled have not before been expressly under the
consideration of this court.

T?ie judgment given in the court bdow is re-
versed; and we stiaU order that the ease shall be
remanded to it, with directions for its tr%al again,
pursuant to our rulings in this opinion.

S. C.-8 Wall., 1.

Cited-9 WaU., 406 ; 40 N. Y., 264.

THE UNITED STATES, Appt,

JOHN ROSE AND GEORGE KINLOCK

(See S. C, 83 How., 88S-273.)
Suiter* s genercU title — Colonization Ijatrs of

01 u. s.

laso.

United States v. Rose.

262-978

18H and 1828— tide, tehen protected by treaty
with U, 8.

The ** general title of Sutter" was considered by
the court at its last term, and its operation declared
in the cases of The U. S. v. N ve ana The U. 8. v. Bas-
setr, reported in 62 C7. ii). (21 How.), 406, 412.

The authority of Micheltorena to distribute the
lands of the Department is found in the Colonlza-
Uon Laws of 1824 and 1828.

The claims under **th» general title of Sutter'*
exhibit a wide divergence from the essential rules
prescribed in the Colonization Laws. They are not
valid claims under the Treaty of Guadaloupe Hi-
dalgo.

Every species of tlUe that originated in the right-
ful exercise of legitimate authority, and existed
under the safeguard of Mexican laws at the date of
the acquisition of California by theHnited States,
is protected by the Treaty of Cession.

But it is the duty of the court to distinsruish be-
tween rights acquired under the laws and usages
of Mexico, and claims depending upon the mere
pleasure of those who were in power.

Argued Feb. 7, 1860. Decided Feb. SO, 1860.

APPEAL from the District Court of the Unit-
ed States for the Northern District of Cali-
fornia.

This case arose on a petition filed before the
Board of Land Commissioners in California, by
the appellees, for the confirmation to them of
a claim to six square leagues of land.

The Board of Land Commissioners entered a
decree confirming the claim.

The district court, on appeal, having affirmed
this decree, the United States took an appeal
to this court.

A further statement of the case appears in
the opinion of the court.

Messrs. J. S. Black, Atty-Gen., E. M.
Stanton and H. S. I*oote, for appellants.

Messsrs. J. J. Crittenden, J. P. Benja-
min and R« Jolutson, for appellees:

The claim is founded on what is known in
California and to this court as the *' General
Title," granted by Governor Micheltorena

The reason for making this title general —
that is. to a described class instead of to indi-
viduals— is stated on the face of the grant,
namely: that because of other occupations the
government had not then time to make grants
severally and to each individual entitled there-
to.

John Smith was one of the class entitled un-
der the general grant of Dec. 22, 1844. It is
proved that before that date in the year 1844,
he had presented to the governor, Michelto-
rena, his petition with a map or diseno, for
the six leagues of land in question — called or
marked on the map, ** Rancho de Yuba."

Smith was put m possession by Sutter, and
within twelve months afterdate of the ''Gen-
eral Title," he was in the occupation of
the land, " made improvements and built an
adobe house, and had upon the said land about
four hundred head of cattle, with some horses."

Bid well's testimony is, that Smith settled on
the land in the fall of 1844, or early in 1845,
and continued to live on it until he sold, in
1848. He had previously lived on adjoining
land, which he had purchased of Sutter.
Smith's petition for the land in question, and
the favorable report thereon by Sutter, were
made to the governor in September, 1844, and
in that year, according to his own testimony,
he not only made improvements, but "had
about six hundred cattle and a few horses on

See 23 How.

U. S. Book 16.

this land." He was a Canadian bv birth, was
naturalized as a Mexican, and had been in Cal-
ifornia since 1885.

It does not appear that he was ever engaged
in the military service, or that the grant was
made to him otherwise than in the due admin-
istration of the Colonization Laws of Mexico.

It is contended, on the part of the appellees,
that these latter circumstances distinguish their
case from the cases of Nye and Bassett, decided
by this court at the last term, and reported in
62 U. S. (21 How.), 408, et sea; and further, it
is also most respectfully urged, that those cases
were erroneously decided and ought not to be
followed.

Mr. Justice Campbell delivered the opinion
of the court:

The appellees were confirmed in a tract of
land in Yuba County, California, containing
six square leagues, bounded north by the Yuba
River, west by the eastern line of Captain Sutter's
land, south of Johnson's rancho, and easterly
for quantity.

The original claimant is John Smith. He was
examined as a witness and testifies that he was
a naturalized citizen of Mexico. That in Sep-
tember, 1844, he'petitioned the Governor of Cal-
ifornia for the land and obtained a favorable
report from Captain Sutter, and in 1845 received
from the latter a copy of the "general title,"
which the governor had authorized him to
give. Then in 1844 he built a house upon the
land, planted an orchard of fruit trees, and in
that and the following year inclosed a field by
ditches, and cultivated it, and that he had there
a stock of cattle. He ^ays he resided on the
land until 1848, when he sold it to persons un-
der whom the claimants derive their claim.

To account for the non-production of an^
documentary evidence, he says that the peti-
tion and report, with a copy of the general
title, were lost in the Sacramento River in 1845;
that subsequently he obtained another copy,
and this, with his naturalization papers, was
sent to Monterey, to be laid before the Depart-
mental Assembly, but they were never returned
to him. Bid well testifies that he prepared
a petition for Smith to Sutter, representing the
loss of his papers, and asking for another copy
of the title, and that Sutter admitted the claim.
He testifies that Smith cultivated the land.

The two depositions of Sutter show that he
recognized the claim of Smith to have the bene-
fit of the general title, and that he gave him
copies as stated by other witnesses. Other tes-
timony in the record disproves the statements
of those witnesses in reference to the improve-
ment of the land, and shows satisfactorily that
they were made on a different tract of land,
and in no connection with this claim.

The " general title of Sutter" was considered
by the court at its last term, and its operation
declared in the cases of U. 8. v. Nye, 21 How.,
408, and U. 8. v. Bassett, 21 How., 412. The
opinion of the court in those cases has been
examined in the argument at the bar, and has
been re-examined by the court.

The testimony of Sutter in the case of Nye
was, that the general title was inclosed to him
in a letter bv Micheltorena, the governor, by
his request. That the governor was blockaded
at Monterey, and was m need of military aid,

29 440

262-273

SUFRBMB CotTBT OF THB UnITBO STATBS.

Dkc. Term

the general title was sent to him upon his ad-
vice. That he executed the trust conferred
upon him, by giving copies of the title to those
•• who had rendered meritorious service to the
country, and who applied to him." The cen-
eral title was issued before his men marcned
from New Helvetia to Join Micheltorena, and,
in some cases, copies were given before and
some after his return from the expedition,
*' but only to such as he thought deserved it."
Governor Micheltorena made a speech to the
soldiers, and promised to deliver grants to all
" whom he should recommend," ''referring
as well to those to whom copies had been de-
livered as to those to whom he should deliver
them."

In the cases of U. 8. v. iV^<5and U. 8. v. Bos-
sett, it was proved that the claimants were sol-
diers in the war of Micheltorena, and had taken
possession of the land within their claim under
a temporary license from the governor. There
is no evidence of the kind in this case. The
statement of facts in this testimony, and the in-
ferences drawn from it by the court, are cor
roborated by public documents existing in the
archives of California. These show, that in the
autumn of 1844 there was an insurrection
against the authority of Micheltorena, which
terminated in a compact signed at Santa Ter-
esa, the 1st December of that year, by the con-
tending chiefs. Micheltorena agreed to disband
and send away a battalion of infantry (prestd-
tarios)/*yf iih some vicious officers, "within three
months, and should himself retire to Monterey;
that the headquarters of the opposing forces
should be at San Jose, and that their expenses
should be charged to the department. In that
month, both parties recommenced prepara-
tions for renewing hostilities. On the 24th of
December, Alvarado asked Sutter for explana-
tions ** in relation to the assembling of men" at
his fori, and charged him with the design of
** invading the Californians."

He transmitted to Micheltorena a copy of
this letter, and arraigned Sutler ' ' for prepar-
ing to attack the forces of the north, under the
pretext of placing himself in the defense of
Micheltorena's government, claitiiing to have
relations with him for this purpose." He says:
•* Considering the movement of Sutter and his
conduct as an arbitrary act of his own, unau-
thorized by the government, and knowing pos
ilively that he is organizing a force, composed
of adventurers and Indians, to attack this gar-
rison I assure Your Excellency that I am m a
condition to make a defense, and to attack him
as soon as he marches against this place, to car-
ry out his dark designs."

On the 28th December. Micheltorena re-
plied to a letter from Sutter, in which he says :
•• I approve in its whole what you say to me
in your last. What you may do, I approve:
what you may promise I will fulfill; what you
may spend, I will pay. * * * The country
calls for our services; our personal security re-
quires it. and the government will know how
to recompense all. * * * If you have not left,
owing to some event, without the necessity of
a new order, when you learn that I am moving
from Monterey to San Juan, you will move at
once; for I will have well calculated the time
to act against them."

On the 12th January, 1845, he addressed

460

a letter to an officer, in which he says: *' All
which is said to you under this date by Senor
Don Sutter, who is now, with arms in hand,
defending the rights of the nation, and, sup-
porting the Departmental Government that I
exercise, will be duly obeyed by you."

Sutter, under these orders, reached Santa
Barbara in the early part of February, with two
companies, and placed them under the command
of Micheltorena.

On the other hand, Alvarado and Castro, in
January, 1845, denounced the governor to the
Departmental Assembly, '* that he appoint^
as commander of armed adventurers the same
Sutter, of whom there is sufficient evidence that
he seeks to possess himself of the department,
attacking the national integrity; a proof that
the country is in danger; and the presumption
is, that Governor Micheltorena does not deserve
the public confidence." They arraign him, be-
cause he had called '*to promote civil war in
the country the foreigner (Sutter), accused be-
fore the Supreme Government of the country
as a conspirator against the national integrity,
and because united to more than one hundred
adventurous hunters, proceeding from the
United States, without more fortune than the
muzzles of their rifles, he has increased his files,
and causing devastation," &c., &c. They as-
serted to the Departmental Assembly, as the
only legal authority which they and their party
recognized, *' that General Micheltorena is a
traitor to his country, and as such he ought to
be presented to the tribunals of the Republic.to
be judged in accordance with the laws. 2d.
That the Assembly should, in the interim,regu-
late all the branches of the administration. 8d.
That they should transmit the charges against
the Governor of Mexico, by a commission, and
ask that the government of the department may
be committed to its natives and residents, of
sufficient capacity and knowledge for its man-
agement.

This communication was referred to a com-
mittee of the Assembly, who reported that the
governor had repudiated the compact of Santa
Teresa, and prepared himself to chastise those
who had demanded its conditions; that his con-
nection with Sutter was dangerous to the safety
of the department, and had deprived him of the
support of the citizens, "for there is not a
sinj^le individual therein," they say, '* who, at
seeing Don John Auguste Sutter commence a
campaign in California, that does not remem-
ber that this gentleman has expressed his fatal
design of subduing the country."

On the 15th February, the Departmental
Assembly disavowed the authority of the gov-
ernor, pronounced his office vacant, and called
upon Pio Pico, the first member of the Assem-
bly, to take charge of the Departmental (Govern-
ment in the interim.

On the 22d February. 1845,a Treaty wap con-
cluded between the commissioners of the As-
sembly and of the governor, which was sanction-
ed by the respective chiefs, in which it was stipu-
lated " that, from this date, the political com-
mand of the department is delivered to the first
member of the most excellent Departmental
Assembly, because it was so disposed by said
body, agreeably to the laws ; for which purpose.
His Excellency, General Micheltnrcna, will de-
liver a circular order in the huuds of the chit* f

04 U. 8-

1860.

United Statbb y. Rosb.

26^-273

of the divifiion of the opponents, that the same
be published throughout the hmits of the de-
partment"

It is acknowledged that the governor " could
no longer contend, with his small forces and
scanty resources, against the general outbreak
of the country;" and therefore he obligates
himself to march to San Pedro, thence to be
conveyed to Monterey, and thence to some port
in the Republic of yCexico,

Sutter remained a prisioner in the hands of
his enemies. On the 26lh of the month (Feb-
ruary), he addressed a letter to Pio Pico, as
^▼emor, in which he speaks of his detention
in the city, and attributes it to his connections
with Micheltorena. He refers to his relations
and duties as an officer, protests that he was
ignorant, and deceived as to the cause of the
insurrection against Micheltorena, and that he
was then convinced of his delusion, and re-
pented of his credulity. He promises obedi-
ence to the authorities, offers to place his fort
at the disposal of the government, and prays
for his release. It does not appear that he was
able to return home uutil the 1st of April, about
which time Micheltorena sailed from Monterey.

Pio Pico remained in cJ^arge of the govern-
ment, as senior member of the Assembly, until
the 15th day of April, 1846, when he was in-
stalled as constitutional governor of the depart-
ment, pursuant to an appointment made in con-
sequence of the memorial of the Assembly on
the 27th of June of the previous year.

We have entered into this minute statement
ot the reyitions of Sutter to the authorities of
Mexico, and especially those in the Department
of California, in order to estimate with exact-
ness the import of his acts, under the power
conferred by Micheltorena, and how far they
imposed an obligation upon the public faith of
those ^vemments, and upon this government,
as their successor.

The authority of Micheltorena to distribute
the lands of the department arises in the Colo-
nization Laws of 1824 and 1828. The object of
those laws was to secure for the Republic a popu-
lation composed of industrious, obedient and
loyal citizens who might contribute to its
strength and prosperity.

In the distribution of the public domain for
this pur]X)6e, the political chief was directed to
inform himself particularly of the circumstances
and condition of every applicant for land;
and that his power of belection should not be
inconsiderately or corruptly used, he was re-
quired to preserve a recora of his acts of admin-
istration, and to submit reports to the Depart-
mental Assembly and the Supreme (Government
the approval of one or the other being necessary
for their definitive validity.

The claims presented to the Land Commission
of the United States in California, and to this
court on appeal by the claimants, under the
"general title of Sutter," exhibit a wide diverg
ence from the essential rules prescribed in the
Colonization Laws. The petition is not preserved
in the archives, but was retained by the appli-
cant. The governor declined to act, until he
could examine the country of which the coloni-
zation is proposed. In the absence of the pe-
tition, and without the desired information,
under a " supreme pressure of business,*' he de-
cides suddenly to send to a subordinate and

See 28 How.

suspected oi&cer the authority to determine the
most serious question of administration confided
to his care — that of selecting persons who should
own and occupy the soil of the department.
He does not preserve a record of this act, nor a
copy of the paper he issues, nor did he present
it to the Departmental Assembly for its ratifi-
cation.

We are compelled to seek an explanation of
this anomalous exercise of authority, and to
examine the conditions attached to this unusal
mode of administration; to inquire of the rela-
tion which the proposed objects of the favor
occupied and were to occupy to the department
and its authorities, and the consequences con<
templated by the governor and his agent to en-
sue from their use of this title, to ascertain its
signification. We have no doubt that the court
may employ this medium of proof for this pur-
pose.

We learn that the Treaty concluded at Santa
Teresa was an armistice merely, and that Mi-
cheltorena, immediately after, concluded to use
thcvagency and influence of Sutter to punish
his enemies and sustain his power; and, to in-
crease that influence, issued this " general title."
Their alliance was regarded by the Depart-
mental Assembly as treasonable, and Justifying
the deposition and expulsion of the governor
from the department. Sutter became their pris-
oner, and was compelled to renounce his connec-
tion with his chief to make his peace. His com-
panies were regarded as public enemies, and were
disbanded and dispersed. The Supreme Gov-
ernment acquiesced in the decisions of the As-
sembly, and recognized and commissioned the
governor of their appointment.

No indemnity was granted to the adherents of
Micheltorena, nor provision made for the ful-
flllment of his promises to them; nor have we
discovered an mstance in which their accom-
plishment was demanded of the succeeding
government. Our opinion, consequently, is,that
these acts and promises were not considered in
California or Mexico as valid obligations, bind-
ing the conscience of the Republic; and there-
fore they are not valid claims under the Treaty
of Quadaloupe Hidalgo.

In some of the instances, Micheltorena
granted a permission to the applicant to occupy
the land provisionally, until he could visit that
portion of the department to act upon their pe-
tition. It is contended that this license is so far
a recognition of the merit of the application, as
to impose upon the United States the obligation
to accede to it; that it confirmed an interest in
the land, that they should perpetuate by a
grant.

We a^ree that every species of title that orig-
inated m the rightful exercise of legitimate
authority, and existed under the safeguard of
Mexican laws at the date of the acquSition of
California by the United States, is protected by
the Treaty of Cession. The change of the gov-
ernment does not alter the relations of the in-
habitants in this particular. This court i^
charged with the duty, in the last resort, to
recognize the validity of all such claims. But
it is the duty of the court to distinguish be-
tween riffhts acquired under the laws and us-
ages of Mexico,and claims depending upon the
mere pleasure of those who were in power — be-
tween the vested estate and the hope or expec-

451

28l!^210

SXTFBBMB OOUBT OF THE UmITBD StATBS.

Dec. Tmbm,

tation of favor or bounty. The Hoense of the
governor to the applicant to make a temporary
occupation, until he could inform himself, so
as to act considerately or intelij^ntly, we think,
cannot be treated as confemng a property in
the land.

We have examined these cases with unusual
care, in consequence of the number of parties
m interest and the amount of property involved.
Upon the most liberal estimate of the powers
of the governor, and the most indulgent view
of the claims of the petitioners, we are unable
to determine that they are valid.

Jvdgmeni of the dmrict court revened, and
eaune remanded, wUh directions to diemiea the
petition.

Cited-24 HoWm ISlf 1 Black, 87.

NA.THA.N E. HOOPER. LOUISA J. HOOP-
ER AND AMANDA E. HOOPER, Minora,
by Absalom Fowleb, their next friend,
Plffs. inBr,,

JACOB SCHEIMER.
SAME

ELIA8 M. CONWAY.

(See 8. C, 28 How., 236-249.)

ESectment in Arkanem — when maintainable in

federal court.

By the Statute of Arkansas, an action of eject-
ment may be maintained where the plaintiff claims
poflseeslon by virtue of an entry made with the
register and receiver of the proper land office of
the United States.

This court held In the case of Batrnell v. Broder-
Ick, 13 Pet., 460, that a patent for land oarries the
fee, and Is the best title known to a court of law.
Such is the settled doctrine of thia court.

An action of ejectment cannot be maintained in
the federal courta a^lnat a defendant in posses-
sion, on an entry made with the register and re-
ceiver, notwithstanding' a State Lf^rislature may
have provided by statute that it can.

The law is only binding on the state courts, and
haa no force in the circuit courts of the Union.

Submitted Jan, £6, 1860. Decided Feb. iO, 1860.

ERRORS to the Circuit Court of the United
States for the Eastern District of Arkansas.
The history of the case and a statement of
the facts appear in the opinion of the court.

Mr. J. Stilwell, for plaintiffs in error:
Can the plaintiffs, claiming under a mnt of
preemption, recover against the defendant,
claiming under a patent issued subsequent to
the preemption? We respectfully submit that
by the Act of Congress of 20th May. 1880, the
^. W. fractional quarter, section 3, 1 N. 12
W. , was appropriated to the use of the occu-
pant, Nathan Cloyes, was not subject to be
granted to anv other person, by Congress or
an^ officer of the United States, until the expi-
ration of the time allowed him to make pay-
ment therefor by that Act and the Act of 15th
July, 1832; and it app^ring that payment was
made by his heirs within the time, the patent
was void.

Perry Y. O'Hdnlon, 11 Mo., 595; McMesy.
Keirn, 7 Smedes & M., 78»; Nieke v. BeeUn;

452

4 Ark., 288; 284; Borum v. Oarland, 16 Ark.,
454; 6 Pet., 788; 18 Pet.. 618: 5 Wheat., 808;
OrommeUn v. Minter. 9 Ala. N. S., 605; Stod-
dard v. Chambere, 2 How., 284; 10 Smedes &
M., Miss.. 461; 7 Smedes & M., Miss., 866.

A preemption is a leiral rested right.

9 How., U. S., 888; ''4 Ark., 288.

The patent issued to Gk)vemor Pope, being
void as issued without authority, may be im-
peached in a court of chancery.

10 Johns., 26; 11 Mo., 595; 16 Ohio, 66; 8
Mo., 94.

Under the Statute of Arkansas, the patent
certificate is of equal grade and dignity with
the patent itself.

Rev. 8tat. of Ark., p. 44; ch. 58. sees. 1 and
2; McClairen y. Wicker, 8 Ark., 195; Perrvv.
O'Hanlon. 11 Mo., 595; Marion ▼. Bankenship,

5 Mo., 856; Bruner ▼. MarUove, 1 Scam., HI.,
162; laaaesY. Steel, 8 Scam., HL, 99;

And it is a better title than a patent founded
on a subsequent entry within the meaning of
the statute;

PeUigrew v. Shirley, 9 Mo., 688; 5 Mo., 850;
11 Mo., 595;

The patent could not affect the pre existing
title of the ancestor of the plaintiffs;

N. 0. V. Armae, 9 Pet.. 286; U. S. v. Ar-
redondo, 6 Pet., 788; OaUin v. Jackson, 8
Johns., 555; Jameson v. Oory, 8 Johns., 988;
Nicks y. Sector, 4 Ark., 288;

And extraneous evidence was admissible, to
show that the patent was void for want of au-
thorit^ to issue it.

2 How., 817; Collins y. Brannin, IMo., 885,
540.

The title of the plaintiffs related to the date
of the Preemption Act (29th May, 1880). The
making of proof of occupation and cultivation,
the adjudication of the right by the land offi-
cers, and the payment of the purchase money,
were successive steps to perfect the right, and
are to be regarded as having been done on that
day;

PeUigrew v. Shirley, 9 Mo., 688; Borum v.
Garland, 16 Ark., 454;

And consequently, the intervening rights cut
out.

Landes v. Brant, 10 How., 872; Walk.
Miss.. 97; 12 Mo., 148; 8 Cow., 75; Vin. Abr..
Tit. Relation; 5Crouse Dij^., 510, et seq.

When the patent was issued, the land had
been appropriated and was not subject to grant,
and it ought to have been excluded by the cir-
cuit court, or the jury instructed to disregard
it as the plaintiffs asked. The act of issuing
it was a mere ministerial act, and as to the
rights of the plaintiffs* ancestors, was wholly
ineffectual to prejudice them.

Ware v. Bnish, 1 McLean, 585.

Mr. S. H. Hempstead* for defendant in
error:

1. The first and principal question is, whether
a patent issued by the United States can be
impeached, annulled and set aside in an action
of law.

In ejectment the rule is universal, that the
plaintiff must show the riffht to possession to
be in himself positively. A tenant is always
at liberty to prove the title out of the plaintiff,
although he does not prove it to exist in him-
self.

Love V. Simms, 9 Wheat., 534; GreenUafs

64 U. S.

1859.

HOOFSB y. BCHSIMKB. SaKB y. OONWAT.

289-340

Leme v. Birth, 6 Pet., 813; King v. SUt^u, 18
Ala.. 475; Bupert v. Ma/rk, 15 111., 540; 1
Blackf., 181; 8 Blackf., 820, 866.

In Eentuckj, it is a settled principle that
courts of law will not look beyond the patent,
and it is only in a court of equity that a prior
ritfht or equftv can be established. The courts
01 the United States have adopted the same
principle.

Finley v. WifUatM, 9 Cranch, 167; see, also,
BUdm)e v. WeUs, 4 Bibb, 829; Alexander y.
Greenup, 1 Munf,, 184; 5 Com. Dig., f. 1, f.
4, f. 6, f. 7. Utle Patent; 2 Bl. Com.. 846; 5
Com. Dig., Patent, f. 6, p. 857; 2 Com. Dig..
Chancery, ch. 1. p. 866; Tayhry. FUUher,
7 B. Mom, 81.

A patent, when attacked incidentally, can-
not be declared void, unless it be procured by
actual fraud, or is void on its face, or has been
declared void by law.

Underwood v. Crutcher, 7 J. J. Marsh.-, 582.

It is only where letters patent are void on
their face as being issued contrary to law, or
where the grant is of an estate contrary to law.
as a^inst the prohibition of a statute, that it
possibly may be held void in a collateral pro-
ceeding.

Jachion v. Marsh, 6 Cow., 282; Jackson v.
Lawion, 10 Johns., 28; Parmdee v. Omoego
Co., 7 Barb.. 622; 37*45 People v. Livingator^, 8
Barb.. 278. 284-287. 295; Jaekikm v. Hart,
12 Johns., 77; People v. Mauran, 5 Den., 889,
898. 400.

The principle indicating the introduction of
extrinsic evidence to impeach a patent free
from objection on its face, does not depend on
the grade or nature of the evidence.

JsorvellY, Cflfiifw, 6 Munf., 283, 238; With-
erinion v. McDonald, 1 Hen. & Mun., 808;
Alexander v. Greenup, 1 Munf., 140.

The same doctrine was laid down by Mar-
shall, Ch. J., in Stringer Y. Lessee of Young, 8
Pet., 840; he said no case had shown that a
patent may be impeached at law unless it be
for fraud ; not legal and technical, but actual
and positive fraud in fact, committed by the
person who obtained it; and even that, said he.
is questioned, citing the above case of Wither-
inton V. McDonald, 1 H. & M.. 806; also.
Hoofnagle v. Anderson, 7 Wheat., 212; Board-
man V. BMd, 6 Pet., 842; 6 Cranch, 181; 8
How., 238; Patterson v. Winn, 11 Wheat.,
880.

The opinion of the Chief Justice evidently
was, that a patent could not be impeached at
law even for fraud — actual positive fraud. It
has been said a patent is void and confers no
title, when it issues for land that has been pre-
viously patented to another individual, or
granted to him by Act of Congress, which is
equivalent to a patent.

Stoddard y. Chambers, 2 How., 818; Grig-
non V. Astor, 2 How.. 844.

Why is this so? Why. under such circum-
stances, may a patent be held inoperative at
law? Those cases themselves answer, because
the fee has passed out of the United States and
vested in the first patentee or grantee.

59 U. S. (18 How.). 88; 9 Cranch. 99.

Those cases do not warrant, nor are there
any cases to be found in the courts of the
United States which warrant the impeachment
of a patent at law, in a case where a preemp-

Bee 38 How.

tioner claims in opposition to that patent.
Resort must be had to a court of equity, and
to that alone.

A patent is a better legal title than an entry
with the register and receiver, and in an action
of ejectment taiust prevail over it.

Gaines v. Hale. 16 Ark.. 25; Griffith v. Deer-
felt, 17 Mo., 81 ; Dickinson v. Broim, 9 S. & M..
Id0\ Bruckner v. Lawrence, 1 Doug.. Mich., 37;
Bagnell v. Broderick, 13 Pet., 486; Wilcox v.
Jackson, 13 Pet., 516; Wiggins v. Lusk, 12 111.,
132.

A patent is evidence in a court of law of the
reguiarit;^ of all previous steps to it, and no
facts behind it can be investigated.

6 Pet., 724; 5 Wheat., 293; 7 Wheat., 151; 11
Wheat., 580; 4 Pet., 340.

No equitable title can be set up in eject-
ment, in opposition to the legal title.

JoiCksony, Chase, 2 Johns.. 84; Jouikson v.
Pierce, 2 Johns., 222; Phelps v. Kellogg, 15 111.,
136.

A patent is conclusive in a court of law.

West V. Cochran, 68 U. 8. (17 How.), 403; 15
How., 450; 14 How.. 882. The legal title must

Srevail at law. 13 How., 24; 11 How., 568; 9
[ow..l71;8 How., 865.

A plaintiff must recover upon the strength
of his title, and that must be a legal, as contra-
distinguished from an equitable title.

Livingston y. Story. 9 Pet., 632; U. S. v. King,
8 How., 846; Gilm&r v. Poindexter, 10 How.,
257.

A patent cannot be collaterally avoided at
law. even for fraud.

Field V. Seaimry, 6a U. S. (19 How.), 324,
882. This case is conclusive of the subject,
and it was said that the case in 2 How.,
318, did not authorize the impeachment of a
patent at law. Courts of justice have no au-
thority to disregard surveys and patents, when
dealing with them in actions of ejectment.

West V. Cochran, 58 U. S. (17 How.) 403;
WiUot V. Sandftrrd, 60 U. 8. (19 How.), 82.

The Legislature of Arkansas has provided
that an action of ejectment may be maintained
on an entry made with the register and receiver
of the proper Land Office of the United States,
or on a preemption right under the laws of the
United States.

Digest, 454.

But a patent being a superior legal title, must
of course prevail over them ; nor would it be
competent for any state legislation to give such
titles, which are only of an equitable nature,
precedence over the legal title.

Wilcox V. Jackson, 13 Pet., 516; Irvine v.
MarshaU, 61 U. 8. (20 How.), 566; BagneU v.
Broderick, 13 Pet., 450, 451.

And although actions of ejectment may be
maintained on an equitable title, or less than a
complete legal title in the state courts, by virtue
of positive legislation, yet it may admit of
great doubt whether, in the courts of the
United States, that action can be sustained on
anything but the paramount legal title. Such
I understand to have been decided.

Carson v. Boudinot, 2 Wash. C. C, ^SiSwayze
V. Burke, 12 Pet.. 2d.

2. The right forum to impeach the patent
was a court of chancery; and that had been
resorted to and the preemption claim of Cloyes
declared invalid, and to be in fact a base fraud.

458

820-82t ; 2(K$-262

SuFRBioi Ck>imT 09 THB Ukitbd Statbb.

Dbc. Tbbic,

as the proof in the chancery case conclusiyely
showed it was.

LyUe V. The State, 17 Ark., 008. It was
purely yexatious to bring this ejectment suit,
and the plaintiffs had no right to do it, as the
same matter was inyolyed in their chancery suit.

Mason y. Chambers, 4 J. J. Marsh., 401.

Mr, Justice CtLtron deliyered the opinion of
the court:

An action of ejectment was brought in the Cir-
cuit Court of the United States for the Eastern
District of Arkansas, founded on an entry
made in a United States Land Office. This was
the only title produced on the trial by the
plaintiffs. ,

The defendant held possession under a pat-
ent from the United States to John Pope (Gfoy-
ernor, &c.), with which the defendant con-
nected himself by a regular chain of conyey-
ances. The circuit court held the patent to be
the better legal title, and so instructed the
Jury, who found for the defendant; and the.
plamtiffs prosecute this writ of error to reverse
that Judgment.

By the Statute oi Arkansas, an action of
ejectment may he maintained where the plaint-
iff claims possesion by virtue of an entry made
with the register and receiver of the proper
Land Office of the United States. Ark. Dig. , 454.

This court held, in the case of Bagnell v.
Broderiek, 18 Pet., 450, " that Congress had the
sole power to declare the dignity and effect of
a patent issuing from the United States; that a
patent carries the fee. and Is the best title known
to a court of law." Suck is the settled doctrine
of this court.

But there is another question, standing in
advance of the foregoing, to wit: can an action
of ejectment be maintained in the federal courts
agamst a defendant in possession, on an entry
made with the register and receiver?

It is also the settled doctrine of this court,
that no action of ejectment will lie on such
equitable title, notwithstanding a state Legis-
lature may have provided otherwise by statute.
The law is only binding on the state courts,
and has no force in the circuit courts of the
Union.

Fenn v. HiAme, 31 How., 482.

It is ordered ih(U thejtidgment he affirmed.

The case of Hooper y. Conway, depends on
the same titles and facts and instructions to
the jury as are set forth in this case, and the
same verdict and Judgment were given in the
circuit court.

We order it to he affirmed likemse.

Oted-l Black, 850.

WILLIAM B. SUTTON, 8AMUEI. L.
GRIFFITH AND JAMES SUTTON, Co-
partners, under the Firm and Style of Sut-
ton, Griffith & Co., Plffs, in Br.,

STACY B. BANCROFT, THOMAS BE A-
VER bt al.. Copartners, under the Firm
and Style of Bancroft, Beavkr & Co.

454

(See 8. C, 28 How., 380, 8»1.)

Judgment, when affirmed with ten per cent,

damages.

Where, in a suit on a promissory note executed
by def endanta, they did not pretend to have any
defense, and entered a false plea, which was over-
ruled, and refused to plead in bar, and Judgment
was entered aflralnst them for want of a plea, and
they do not pretend to allege any error, the judg-
ment willbe afSrmed, with ten per cent, damages.

Argued Feb. U» I860. Decided Fd>. SO, 1860.

N ERROR to the District Court of the United
States for the Western District of Arkan-
sas.

This was an action of assumpsit brought in
the court below by the defendants in error, on
a certain promissory note. The court below
'having entered a judgment in favor of the
plaintifib, the defendants sued out this writ of
error.

A further statement of the case appears in the
opinion of the court.

No counsel appeared in this court for the
plaintiffs in error.

Mr. George C. W^tkbuit for defendants
in error:

The Judnnent was rendered on May 22, 1 856,
since which time the hands of the plaintiffs be-
low have been tied from having execution, and
the plaintiffs in error have never appeared in
this court, nor have they taken any steps to
prosecute their writ of error.

The defendants in error now ask for an af-
firmance of the judgment, with exemplary
damages for delay.

* Mr. Justice Grier delivered the opinion of
the court:

The plaintiffs in error were sued on a prom-
issory note executed by them. They did not
pretend to have any defense. They entered a
false plea, which was overruled on demurrer.
They refused to plead in bar. Judgment was
entered against them in due form, for want of
a plea.

They do not pretend to allege any error in
theproceedings.

Xhe judgment is, therefore, affirmed, with ten
per cent, damages.

Clted-2 Black, 370 ; 1 Wall., 423 ; 6 Wall., 680.

THE UNITED STATES, Appellant,

WILLIAM BENNITZ.

(See 8. C, 28 How., 2SS<982.)

Sutter's general title invalid.

The merits of the claims arising under the fren>
eral title of Sutter have been discussed in the cases
of Nye and Basset, reported In 62 U. 8. (21 How.),
408,412.

This claim Is In all respects similar; and for the
reasons assigned in those casc», is Invalid.

Argued Feb. 6, 1860. Decided Feb. 27, 1S60.

APPEAL from the District Court of the
United States for the Northern District of
Calfomia.

MU.S.

1850.

United Statks v. Beknitz.

255-263

Tlie history of the case and a statement of
the facts appear in the opinion of the court.
See, also, statements by counsel.

Mes9r». J. S. Black* Atty-Gen., andE. M.
Stanton, for appellants :

The claimant sets forth no title from the rec-
ord. He produces from his own private cus-
tody the following documents:

June 18, 1844. Petition of Bennitz for. a
tract of land called Breisgan, five leagues on
the Sacramento River.

Same day. Referred to Jimeno, and by him
to Sutter, for report.

July 16, 1844. Report by Sutter that the land
is unoccupied.

July 16, 1844. Jimeno's recommendation that
it should wait until the governor can visit the
Sacramento; to which the governor says, " Let
him occupy it, provisionally, until I go up to
conclude it."

These documents are not proved otherwise
than by the testimony of one witness (J. J.
Warner), who swears that he believes the sig-
natures of Micheltorena, Jimeno, and Sutter, to
be genuine.

December 22. 1844. Micheltorena's general
grant to J. A. Sutter.

John A. Sutter, being called as a witness,
says that Bennitz was one of the persons to
whom the general grant applies.

This claim rests on the general grant of
Micheltorena to Sutter, and on that alone. It
is void; the title is worse than worthless.

Messrs. R. H» Gillet, C. Benham and
A. Feleh, for appellee :

Bennitz acquired an interest in the land
claimed, by virtue of the license granted by
Micheltorena on the 26th of July. 1844.

Bennitz petitioned for the land in the ordi-
narv manner. It was referred to the secretary
ancl by. him sent to Sutter for report. The lat-
ter reported favorably. On returning the papers
to the governor, the secretary suggested that
the formal grant of the legal title should be de-
layed until the governor should visit that part
of the country and dispose of the previous ap-
plications. Thereupon the governor authorized
Bennitz to take possession, and hold it until he
should go up and conclude the matter o£ the
grants. He indorsed — *' Let him occupy it,
provisionally, until I go up and conclude the
matter.'' But he never went up.

This conferred a right of pos.session and oc-
cupancy that has never been revoked. The pe-
titioner took possession by his agent, and occu-
pied for fifteen or eighteen months, until the
agent was killed by the Indians, as in Head-
ing's case, and he continued to claim the land.

On the 22d of December, 1844, Michelterona
gave what is denominated the "general title,"
which was intended as a confirmatory grant of
this and other lands. This satisfied Bennitz
that he had acquired a legal title, and he con-
tinued to occupy down to 1846 (when his agent
was killed)) &ud he also continued to claim the
land.

This case is clearly distinguishable from those
of Sutter and Nye, decided at the last term.

62 U. S. (21 How.), 170-408.

In each of those cases there was a petition, a
reference, and a report by the local officer, but

See 28 How.

no further action by the governor in eithftr. All
rested upon the subsequent general title.

There was somethinir in this case which was
treated by Mexico and the claimant as an inter-
est. There was an application for a definite
spot which was not occupied, and it was so re-
ported, and permission given to occupy it until
further action by the governor, and then there
was possession and continued occupancy. Mex-
ico could not have recovered against him as a
trespasser, after the license and occupancy
under it, and no one denouncing the land, the
governor could not eject him. Here were tan-
gible facts. The claimant thought he had some
rights, and no one questioned them. He was
told his title was confirmed, and a formal docu-
ment followed. Here was something of sub-
stance. Not being a legal title, but still being
something which would affect the conscience of
Mexico, it was clearly an equity. If it was an
equity, this court is bound to recognize and
confirm it.

Mr. Justice Campbell delivered the opin-
ion of the court :

The claimant applied to Micheltorena, in 1844,
for a concession of five square leagues of land,
lying in the valley of the Sacramento River,
and bounded on tne west by that stream. The
petition was referred to Captain Sutter, who
reported that the land was vacant.

The secretarv reported, that the governor
having deferred any action upon petitions like
the present, until he could make a visit to the
region of the Sacramento and San Joaquin, it
would be proper to dispose of this in the same
manner.

The governor so ordered, authorizing the ap-
plicant to take provisional possession, until he
could make his visit. The suit of the claimant
was submitted to the board of commissioners
on this testimony, and it was rejected as in-
valid.

Upon appeal to the district court, the claim-
ant proved that he was a soldier in the war of
Micheltorena, and an officer in one of the com-
panies of Sutter. That the governor acknowl-
edged his services in that war, and verbally
recognized the validity of his claim for the land
specified, and that it will be perfected by means
of the "general title" of Sutter. The claim-
ant also proved, that in March, 1845, twopc,
sons went upon the land, to make improve-
ments under his claim. That one of them
shortly after retreated from fear of the Indians;
and the other (Julien) made some improvement
and cultivation, and occupied the land twelve
or fifteen months, when he was killed by them.
In the case of U. S. v. Reading, 18 How. , 1, it
was proved that Julien occupied the land of
that claimant.

The merits of the claims arising under the
general title of Sutter have been di8cus.sed in
the cases of U. 8. v. Nj/e, 21 How ., 408, and
U. S. V. Bassett, 21 How., 412. This claim is
in all respects similar; and for the reasons as-
signed in those cases, is invalid.

Decree reversed. Cause remanded, with di-
rections to dismiss the petition.

Oited-l Black, 87.

^bh

fil8-3!30

BUPBBMS CotJBT OF THB UnITBD BtATBS.

Dbc. Tkbx,

THE UNITED STATES, Appt,

JOSE ANTONIO ALVI80.
(See 8. C, 28 How., 8l»-8»).)
Mexican elaim, vaUdity of.

Wtaerevin a Mexican olalm, no Imputation is made
afirainst the integrity of claimant's documentary
evidence, and no suspicion exists unfavorable to
the bona fidat of his petitioni or the continuity of
his pa^session and claim, and he has been recog-
nized as the proprietor of the land since 1840, the
court will not willingly disturb the decree in his
favor.

Argued Feb, U, 1860. Decided Feb. S7, 1860.

APPEAL from the District Court of the United
Slates for the Northern District of Cali-
fornia.

The history of the case and the facts involyed
sufficiently appear in the opinion of the court,

Messri: J. S. Bliusk* Atty-Gten., and E«
M. StaiAtoii, for appellants:

This title is utterly incapable of being sus-
tained, because —

1. There is no espediente for it to be found
among the archives, nor note of it in any Tama
De Eazon, nor in the index which is extant and
contains all the grants that were made for that
year.

2. Even if the eepediente had been found, and
it had been noted upon the proper book, the
whole transaction betw^n Alviso and the gov-
ernment would not have amounted to a grant
of land.

It is a mere marginal order upon a petition,
not an order of concession, such as the govern-
ors usually made after they received the reports
that were sent in to them from the local magis-
trates. This was only an order of reference,
calling upon the administrator of the ex-mis-
sion of San Francisco to report, and authorizing
the petitioner in the mean time to occupy the
land provisional 1 jr. Everything was to wait
until the information required by the governor
should be sent in to him. The governor also
ordered that a map should be produced. It ap-
pears from the evidence that no report was ever
made by the governor, no map ever produced
before him, and that he was never asked to make
the grant or concede the title.

2. The papers in this case, like all those
whose genuineness is not proved by some cor-
responding entry upon the record, are probably
mere fabrications. The b^t that can be said
of them is, that the claimant had some old
papers which showed that an application had
once been made for the land, but afterwards
abandoned ; that he did not think the land worth
getting a title for, until after the conquest of the
country by the Americans, and that he gathered
up his shapeless documents and produced them.
If this be the worst of it, it is to all intents and
purposes a false and fraudulent claim. But
besides this, the evidence that even such papers
as these were ever really made, is exc^ingly
slender and unreliable.

Messrs. C. Robinson and B. W. Lei^^h*

for appellees:

In the discussion of the present question, we
are to be ^ided, not by anv decisions of this
court precisely in point, but by the laws, usages
and customs of the Mexican Government, the

456

principles of equity and the decisions of this
court in analogous cases.

See the Act of Congress of March 8, 1851,
sec. 11. 9 Stat, at L.. 681; Fremont y. Ths U.
8., 68 U. a (17 How.), 542, 648.

A statement of the effect of the decisions of
this court to which the Act refers, will be found
in the opinion of the court in the case of FSrS-
numt V. The U. 8.

It connot be maintained that the €k)vemor of
California did not have power to authorize a
provisional occupation of vacant land, to await
the report and formal grant. In the language
of this court in the case of The U. 8. x. Sutter,
62 U. 8. (21 How.), 170. "The decisions of
the court show that they have been disposed to
interpret liberally the measures of the Mexican
authorities in California, and to view with in-
dulgence the acts and modes of dealing with the
inhabitants having reference to the laws of dis-
tribution and settlement of the public domain.
The circumstances in which the governor waa
placed, required that his power and discretion
should not be confined within narrow limits,"

The claim is valid upon the general princi-
ples of equity, for there is no defect of con-
sideration. The consideration here is as good
and as sufficient as it was in Scatfs Exr. v.
Osborne's Exr., 2 Munf., 418.

It is the case of an offer — ^an agreement — ^by
one party, accepted and acted on by the other.

Lowell y. Deuf, 1 You. & Coll., 356.

The complainant acted under it in taking
possession of the property, and expended money
in its improvement;

King's Heirs v. Thompson, 0 Pet., 219,

And upon making out, against an individual^
such a case as he has here made out against the
government, a court of equity would decree
specific execution of the contract;

1 Spence, Eq., 645; Ad. Eq., pp. 79, 80 of
Enff., pp. 247, 248 of Am. ed. ;

For, as Bir William Grant observes, " sup-
posing the contract to have been entered into by
a competent party, and to be in the nature and
circumstances of it unobjectionable, it is as
much of course in this court to decree a specific
performance as it is to give damages at law."

ffaU V. Warren, 9 Ves., 608.

The contract was by a competent {Mirty, and
in its nature and circumstances unobjection-
able. Here, as in Fou>eU v. Th^^mas, 6 Hare.,
806, there was never any dispute between
the parties with respect to the occupation of
of the land for the purpose for which it was
taken, and there was no question between them
as to any other matter — no such question to
prove as there was there.

The occupation here was as plainly under the
agreement as it was in Gregory v. MigheU, 18
Ves., 888, and upon the doctrine of these and
other cases, relief should be given by quietine
the complainant in his possession of the lano.
Sir William Grant, in effect, said: *' I wll not
listen to anything so monstrous as to say he u
not to have it. You have let him have the land ;
he has been u|>on it for a great number of veara.
He shall have it for the rest of the term.

Mr. Justice Campbell delivered the opinion
of the court:

The appellee was confirmed in his claim to
two square leagues of land in th^ County of

64 U.S.

1850.

Unitbd 8tatB8 y. Ono.

278-287

Santa Cruz, and known as La Canada de Verde
y Arroyo de la Purissima, by the Board of Com-
missioners and the District Coart of California.

His teptimony consists of a petition by his
brother (Jose Maria Alvisb) to the €k)Temor of
California, in 1888, for a grant of the land, and
permission to occupy it, while the proceedings
for the perfection of his title were pending.
This petition was granted, and the adminfi-
trator of the ex-mission of San Francisco, de
Assis, was directed to make a report upon the
subject.

In 1889 this order was exhibited to the pre-
fect of that district, who agreed to reserve the
land for the claimant, and that the claimant
might occupy it, referring him to the governor
for a complete title. In 1840 the administrator
reported that the land was unoccupied, and was
not recognized as the property of the mission or
of any private person. The claimant has a con-
veyance from his brother, the petitioner, dated
in 1840.

The testimony shows that his occupation
commenced in 1840, and has continued for
fourteen years; that he has improved and culti-
vated the land, and that his family have resided
on it.

The claimant appears to have been a citizen
of the department, and no objection was made
or is suggested why he shoulcf not have been a
colonist of that portion of the public domain he
has solicited. No imputation has been made
against the integrity of his documentary evi-
dence, and no suspicion exists unfavorable to
the bona fdeg of his petition, or the continuity
of his possession and claim. He has been recog-
nized as the proprietor of this land since 1840.

Under all the circumstances of the case, the
court is not willing to disturb the decrees in his
favor.

Decree of the district court, affirmed.

Cited— 8 Sawy., 78.

THE UNITED STATES, Appt,

ANTONIO MARIA OSIO.

(See S. C, 23 How., 273-287.)

Mexican land claim — license to occupy—power of

gooemor.

Where a decree of the Mexican Governor grranted
the right or license to occupy an island to raise stock,
subject to the rljrht of the ffovemraent to enter at
any time and appropriate the premises as a site for
a military fort; ana the petitioner never availed
himself of the license granti^, or made any im-
provements on the Island under the decree; held,
that he had acquired no interest in the land, by virt-
ue of that proceeding, at the date of the cession to
the United States.

Colonization arrants were usually made, subject
to the approval of the Departmental Assembly.
No such approval was ever obtained in this case.

The power conferred was to be exercised by the
g^overnor, in concurrence with the Departmental
Assembly ; and a grant made by the governor with-
out such concurrence was simply void.

The governor, under the circumstances of this
case, had no authority, without the concurrence of
the Departmental Assembly, to make this grant,
and the grant is void.

Argued Feb. 16, I860. Decided Mar. IS, 1860,

APPEAL from the District Court of tlie Unit-
ed States for the Northern District of
Califomia.

See 28 How.

The history of the case and a statement of the
facts appear in the opinion of the court.

Meeers. J« S. Black* Atty-Gen., and E. M.
StaAtony for appellants:

It is not pretented by Alvarado, or anyone
else, that he had authority to grant away the
islands in the Bay of San Francisco for pur-
poses of colonization, previous to the order sent
down from the Supreme (Government, and dated
at Mexico. July 20, 1888. That order author-
izes the islands to be granted by the governor
of the department in concurrence with the De-
partmental Junta, who were to proceed with
activity and prudence. If this was a joint au-
thority, as by its terms it was unquestionably
intended to be, then the non- concurrence of the
Departmental Junta with the governor makes
the grant void and worthless. But even if this
view of the subject should not be taken by the
court, it will undoubtedly be regarded as a
very impressive fact against the genuineness of
this claim, that the concurrence of the Assem-
bly was never asked for, during the whole pe-
riod that intervened between 1889 and 1846.

Mr. R. H. Gillet* for appellee:

First. No form of grant is required by the
order of the Supreme Government, authorizing
the grant of the islands, nor required by the
colonization law or regulations.

Larkins' case, 59 U. S. (18 How.), 562.

Second. Meritorious, useful and patriotic
services were good considerations for a grant.

See U. 8. v. SutherlaM, 60 U. S. (19 How.),
368, 9M;U. 8. v. Peralta. 60 U. S. (19 How.),
848; Case of Arguello, 69 U. S. (18 How.), 540;
Larkins' case. 59 U. S. (18 How.), 562.

Third. Confirmation by the Departmental
Assembly is not necessary, in order to confirm
a Califomia grant made by a governor. It was
the duty of the government, and not of the
grantee, to present it for confirmation.

Fremont v. The U. 8., 58 U. S. (17 How.),
568; Cruz Cervantes' case. 59 U. S. (18 How.),
558; Larkins* case, 59 U. S. (18 Bow.), 562.

Fourth. When an equitable right has once
vested under a Califomia grant by the governor,
it cannot be devested except by the denounce-
ment of a third person legally made.

Fifth. The question of the bona fides of this
ffrant cannot now be raised, as it was not raised
below.

Sixth. Conditions subsequent, if not com-
plied with, do not render the grant void, nor
authorize the government to forfeit the grant-
ee's rights to its own use.

FremonVs <jase. 58 U. S. (17 How.), 560;
Larkin*s case, 59 U. S. (18 How.), 563.

Seventh. When an oflBcer of the Mexican
Government who had the legal power to make
grants of land, exercises that power in a man-
ner to create a reasonable belief in the mind of
an applicant for a grant that the instmment
given is a grant, and he takes possession, occu-
pies the same, and makes improvements there-
on in good faith, such grant, if not in strict
legal form, creates an equitable right which en-
titles the grantee to a confirmation thereof.

Eighth. By the laws, usages, and customs
of Mexico, this claim would have been con-
firmed, and therefore this court must confirm it.

The Act under which these cases came be-
fore the board required that body, the district
court, and this court, to be "governed by (1.)

467

27a-2S7

BuPBBMB Court OF thb Unitsd States.

Dec. Tbbm,

the Treaty of Guadaloupe Hidalgo; (2.) the law
of nations; (3.) the laws, usages and customs of
the government from which the claim is de-
rived; (4.) the principles of equity; (5.) the de-
cisions of the Supreme Court, so far as the same
are applicable.

9 U. S. L., 638, sec. 11.

Ninth. It is a well-settled rule, that equity
cannot be resorted to for the purpose of enforc-
ing forfeitures, but only to avoid them.

Mr. Justice Clifford delivered the opinion of
the court:

This is an appeal from a decree of the District
Court of the United States for the Northern Dis-
trict of California, affirming a decree of the com-
missioners appointed under the Act of the 8d
of March, 1851 (9 Stat, at L., 681). to adjudicate
private land claims. Every person claiming land
m California, by virtue of any right or title de-.
rived from the Spanish or Mexican Government,
is required by the 8th section of that Act to pre-
sent his claim, together with the evidence in
support of the same, to the commissioners in
the first instance, for their adjudication.

Pursuant to that requirement, the appellee in
this case presented his petition to that tribunal,
claiming title to the island of Los Angeles, situ-
ated near the entrance of the Bay of San Fran-
cisco, and prying that his claim to the same
might be confirmed. As the foundation of his
title, he set up a certain instrument or docu-
ment, purporting to b« a grant of the island to
him by Governor Alvarado. It bears date at
Monterey, on the 11th day of June, 1839; and
the claimant alleged in his petition to the com-
missioners that the grant was made under cer-
tain special orders issued to the governor by the
Mexican Government. He obtained a decree
in his favor before the commissioners, and the
district court, on appeal, afiirmed that decree;
whereupon an appeal was taken, in behalf of
the United States, to this court; and the ques-
tion now is, whether the claim, upon the evi-
dence exhibited, is valid, within the principles
prescribed as the rule of decision in the 11th
section of the Act requiring the adjudication to
be made.

Unlike what is usual in cases of this descrip-
tion, it will be noticed that none of the docu-
mentary evidences of title, introduced in sup-
port of the claim, purport to be founded upon the
Colonization Law of 1824, or the Regulations
of 1828; and for that reason we shall refer to
these documents with some degree of particu-
larity, in order that their precise import and ef-
fect may be clearly understood.

On the 7th day of October, 1887, the present
claimant presented a petition to Governer Al-
varado, praying for a grant of the island in
question, ** to build a house thereon, and breed
horses and mules;" representing, in his peti-
tion,* that as early as 1830 he had made a similar
request, and expressing the hope that the grant
might be made.

Home further delay occurred in the contem-
plated enterprise of the petitioner, as appears
from the fact that no action was taken oo his
second petition until the 1st day of February,
1838, when the governor, by an order appear-
ing in the margin of the petition, referred it.
not to the alcalde of the district, but to the
military commandancy north of San Francisco,

for a report. That ofifice was filled at the time
by Mariano G. Vallejo, who accordingly re-
ported, on the 7th day of the same month, that
the island might be granted to the petitioner;
but suggested that it would be well to make an
exception in the grant, to the effect that, when-
ever the government might desire or find it con-
venient to build a fort on the principal height
thereof, it should not be hindered from so do-
ing. With that report before him, the gover-
nor, on the 19th day of February, 1838. made
a decree, wherein he states that he haid con-
cluded to grant to the petitioner the occupation
of the island in question, " to the end that he
may make such use of it as he may deem most
suitable, to build a house, raise stock, and do
everything that may concern the advancement
of the mercantile and agricultural branches —
upon the condition that, whenever it may be
convenient, the government may establish a fort
thereon."

Direction was given to the petitioner, by the
terms of the instrument, to present himself,
with the decree, not to the ofllce where land ad-
judications under the Colonization Laws were
usually recorded, but to the military command-
ancy. that an entry thereof might be made, for
the due verification of the same.

No such note of the proceeding was ever
made in the office of the military eomtnan-
dante, or in any book containing the adjudica-
tions of land titles. But the several documents
are duly certified copies of unrecorded originals
which were found in the Mexican archives.
Their genuineness is controverted by the coun-
sel for the appellants; but we do not think it
necessary to consider that question on this
branch of the case, for the reason that the
petitioner never took possession of the island
under that decree, and does not claim title un-
der it in the petition which he presented to the
land commissioners.

All that the decree purports to grant to the
petitioner, in any view which can be taken of
it, is the right or license to occupy the island
for the purposes therein described, subject to
the right of the government to enter at any
time and appropriate the premises as a site for
a military fort; and inasmuch as the petitioner
never availed himself of the license granted, or
made any improvements on the island under
the decree, it is quite clear that he had acquired
no interest in the land, by virtue of that pro-
ceeding, at the date of the cession to the United
States, which the Mexican Government wa»
bound to respect.

Four other documents were introduced by
the petitioner, before the commissioners, in sup-
port of his claim: 1. A dispatch from the Min-
ister of the Interior of the Republic of Mexico,
addressed to Governor Alvarado. 2. A peti-
tion from the appellee to the same. 3. A du-
plicate copy of the grant set up in his petition
to the commissioners, which is without any
signatures. 4. The original grant of the island
in question, which purports to be signed by
the governor, and to be countersigned by the
secretary. Of these, the first three are duly
certified copies of unrecorded originals which
were found in the Mexican archives.

As exhibited in the transcript, the dispatch
bears date at Mexico, on the 20th day of July,
1888. By that dispatch the goveraer was in-

e4 U.8.

1859.

Unitbd Statbs y. Obio.

273-'287

formed that ' ' the President, deairing on the
one part to protect the settlement of the desert
islands adjacent to that department, which are
a part of the national territory, and on the
other to check the many foreign adventur-
ers who may avail themselves of those con-
siderable portions, from which they may do
great damage to our fishery, commerce, and in-
terests, has been pleased to resolve that Your
Excellency, in concurrence with the Depart-
mental Junta, proceed, with, activity and pru-
dence, to grant and distribute the lands on
said island to the citizens of the nation who
may solicit the same/'

In addition to what is here stated, two per-
sons, Antonio and Carlos Carillo, are named
in the communication, to whom, on account of
their useful and patriotic services, preference
was to be given in making the grants, to the
extent of allowing them to select one exclusive-
ly for their benefit.

Such is the substance of the dispatch, so far as
it is material to consider it in this investigation.

On the 15th day of February 1839, the pres-
ent claimant presented to Gk)vernor Alvarado
another petition, wherein, after referring to
the fact that the island in question had been
granted to him during the preceding year, for
the breeding of horses, he prays that a new
title of possession may be given to him, in ac-
cordance with the superior deci-ee, whicli, as he
assumes, empowered the governor to grant,
for purposes of colonization, the islands near by,
on the coast.

Some idea of the situation of the island, and
of the importance which was attached to it in
a military point of view, may be gathered from
the exposition of the military eommaTidante,
made by the governor on the 17th day of Au-
gust. 1837. One of the purposes of that court
was to recommend that the custom-house es
tablished at Monterey should be transferred to
the port of San Francisco. Various reasons
were assigned for the change; and among
others, it was stated that thh latter port was im-
pregnable, by reason of its truly military posi-
tion.

After describing the port, and expatiating
upon the advantages which would fiow from the
transfer, the report goes on to state, that near
its entrance and within the gulf are several
small islands, where are found water and a
variety of timber most suitable for a fortifica-
tion; adding that it contains safe anchorages
and suitable coves for landing goods and lor
storehouses, particularly the island of Los An-
geles, which is one league in circumference,
lying at the entrance of the ^ulf , and forming
two straits with their pomts — ^giving their
names — so that it is the key of the whole of it,
inasmuch as from this very place the coming
in or going out of vessels can be prevented
with the utmost facility.

Sufiice it to say, without repeating any more
of its details, that the whole report is of a char-
acter to afford the most convincing proof that
the public authorities of the Territory, as early
as August, 1837, fully appreciated the impor-
tance of the island, as a necessary site to be re-
tained by the government for the purposes of
national defense. Arch. £xch., p. 5.

Grants under the (colonization Laws were usu-
ally issued in duplicates— one copy being de-
Bee 28 How.

signed for the party to whom it was made, and
the other to remain in the archives, to be trans-
mitted, with the espediente, to the Department-
al Assembly for its approval. They were in
all respects the same, except that the copy left
in the office, sometimes called the duplicate
copy, was not always signed bv the governor
and secretary, and did not usually contain the
order directing a note of the grant to be entered
in the office where the land f^ judications were
required to be recorded.

In this case there is no espediente, other than
the'one presented with the first-named petition,
which is not necessarily or even properly con-
nected with the grant set up by the claimant.
Two copies of this grant were produced by the
petitioner, both bearing date at Monterey, on
the llth day of June, 1889, nearly two years
after the governor received the before men-
tioned exposition of the military eammandanie,
showing tlie importance of the island to the
j^overnmcnt as a site for works of defense.
They are of the same tenor and effect, and both
purport to be absolute grants, without any of
the conditions usually to be found in the conces-
sions issued under the Colonization Laws. As
before remarked, the copy not signed; together
with the petition, were found in the Mexican
archives; but the original, properly so called,
was produced from the custody of the party.

Adjudications of land titles were required by
the Mexican law to be recorded. That require-
ment, however, was regarded as fulfilled, ac-
cording to the practice in the Department of
California, when a short entry was made in a
book kept for the purpose, specifying the
number of the egpediente, the date of the grant,
a brief description of the land granted, and the
name of the person to whom the grant was is-
sued. In this case there is a certificate appear-
ing at the bottom of the instrument, to the
effect that such an entry had been made, but it
is wholly unsupported by proof of the exist-
ence of any such record.

An attempt was made before the commis-
sioners, or in the district court, to account for
the absence of such record evidence, by show-
ing that a book of Spanish records, of the de-
scription mentioned, was consumed by fire, at
San Francisco, in 1851 ; but the recollections of
the witness called for the purpose are so in-
distinct, and his knowledge of the contents of
the book so slight, that the evidence is not en-
titled to much weight. Jimeno. who signed
the certificate, was not called, and, in view of
all the circumstances, there does not appear
to be any ground to conclude that any such
record was ever made.

Colonization grants were usually made, sub-
ject to the approval of the Departmental As-
sembly, and the Regulations of 1828 expressly
declare that grants to individuals and families
shall not be held to be definitively valid without
the previous consent of that deputation. No
such approval was ever obtained in this case ;
and it does not appear that the dispatch, or
order, as it is denominated by the governor,
was ever communicated by him to the De-
partmental Assembly, until the 27th day of
February, 1840. His message communicating
the dispatch, though brief, clearly indicates that
the members of the Assembly had no previous
knowledge upon the subject.

278-287

SUFBBMB GOTJBT OV THB UkITBD StATBB.

Dbo. Txbm,

A document, purporting to be an unsigned
copy of the grant, and the petition, are all the
papers that were found in the archives, except
those connected with the first proceeding under
which the license to occupy the island was grant-
ed. They were loose papers, not recorded, or
even numbered, and, in view of all the circum-
stances, add little or nothing to the probabilitv in
favor of the integrity of the transaction. Two
. witneses were examined by the claimant to prove
the authenticity of the grant. €k>vemor Alva-
rado testified that his signature to the grant
was genuine, and that he gave it at the time of
its date. In effect, the other witness testified
that he was acquainted with the handwriting
of the governor, and also with that of the sec-
retary, and that they were genuine. Where
no record evidence is exhibit^, the mere proof
of handwriting by third persons, who did not
subscribe the mstrument as witnesses, or see it
executed, is not suflScient in this class of cases
to establish the validity of the claim, without
some other confirmatory evidence. But the
testimonv of Oovemor Alvarado stands upon
a somewhat different footing. His statements
purport to be founded upon Knowledge of what
he afilrms, and if not true, they must be will-
fully false, or the result of an imperfect or
frreatly impaired and deceived recollection.
Resting, as this claim does, in a great measure,
so far as the genuineness of the grant is con-
cemedi upon the testimony of this witness, we
have examined hie deposition with care, and
think proper to remark that it discloses facts
and circumstances which, to some extent,affect
the credit of the witness. Bv his manner of
testifying, as there disclosed, he evinces a
strong bias in favor of the party calling him,
as is manifested throughout the deposition.
Some of his answers are evasive; others, when
compared with preceding statements in the
same deposition, are contradictory; and in
several instances he refused altogether to
answer the questions propounded on cross-ex-
amination. Sufilce it is to say, without enter-
ing more into detail, that we would not think
his testimony sufficient, without some corrobo-
ration, to entitle the petitioner to a confirmation
of his claim.

On the part of the United States the confirm-
ation of the claim is resisted chiefly upon two
grounds. It is insisted, in the first place, that
the evidence introduced by the claimant to
establish the authenticity of the grant is not
sufficient to entitle him to a confirmation, and
that in point of fact the grant was fabricated,
after our conquest of the territonr. Second,
it is contended that the grant, even if it be shown
that it is genuine, was issued by the governor
without authority of law.

In support of the first proposition, various
suggestions were made at the argument, in ad-
dition to those which have already been the
subject of remark. Most of them were based
upon the state and condition of the title papers,
tlie circumstances of the transaction, and the
conduct of the parties, as tending to show the
improbability that any such grant was ever
made. Much stress was laid upon the fact that
the grant was never approved by the Depart-
mental Assembly, or any note of it entered in
the office where the adjudications of land titles
were required to be recorded. Attention was

460

also drawn to the fact that the paper produced
as the etpMente is without anv number,
which circumstance, it was insisted, furnished
strong evidence that they were fabricated, or
at least that they had never been completed.
To support that theory, an index, prepaiied by
the secretary, and found in the Mexican ar-
chives, was exhibited, containing a schedule of
eipedientea numbered consecutively from one to
four hundred and forty-three, covering the
period from the 10th day of May, 1833.
to the 24th day of December, 1844, and in-
cluding in the list one in favor of this pe-
titioner for another parcel of land granted
on the 7th day of November, 1844. Reliance
was also placed upon the omission of the ap-
pellee to call and examine the secretary who
prepared that index, and whose name purports
to l^ signed to the grant set up in the petition.
Another suggestion was, that, from the nature
of the property, it was highly improbable that
any private person should desire such a grant
in a department where there were vast tracts of
fertile land to be obtained for the asking, and
that it was past belief that the governor would
have been induced to make the fnnt, espe-
cially after the receipt of the exposition of the
military e(Mnma7idarUe, except upon the same
conditions as those Inserted in the decree of the
preceding year. Every one of these sugges-
tions is entitled to weight, and when taken to-
gether and considered in connection with the
unsatisfactory character of the parol proof in-
troduced by the petitioner, they are sufficient
to create well-founded doubts as to the integ-
rity of the transaction. But it is unnecessary
to determine the point, as we are all of the opin-
ion that the second objection to theoonfirmatioa
is well taken, and must be sustained.

Nothing can be plainer than that the gov-
ernor, in making the grant in question, did not
assume to act under the Colonization Law of
1824, or the Regulations of 1828. Were any-
thing wanting beyond what appears in the terms
of the grant to establish that proposition, it
would l^ found in the deposition of the gov-
ernor himself, in his answer to the fourth
interrogatory propounded by the claimant. His
answer was, that he made the grant by an ex-
press order in writing from the General Govern-
ment. He further states, that his predecessors
had applied to the General €k>vernment for
such authority, but without success. On com-
ing into office, he renewed the application, and,
after considerable dela^, he says he received
the before mentioned dispatch by the hands of
a courier.

Neither side, in this controversy, disputes the
authority of the Mexican President to issue the
order contained in the dispatch. From its
date, it appears to have been issued during the
administration of General Anastasio Bustar
mente. He succeeded to the Presidency, for
the second time, on the 19th day of April,
1887, after the capture of Santa Anna in Texas,
and remained in office until the 6th day of Oc-
tober. 1841, when he was driven from the cap-
ital by the partisans of his predecessor.

At the bednning of his administraticn, he
professed to be guided by the principles of the
Constitution; and from the well known ante-
cedents of his cabinet, he could hardly have
expected to adopt any different policy. His

MU.8.

1859.

United Statbh v. Otuo.

278-387

cabinet, however, shortly resigned, and a new
one was formed, believed to have had much less
respect for the fundamental law. On the 9th
day of March, 1888. the Minister of the In-
terior of the new cabinet resigned, when Joa-
quin Pesado, whose name is affixed to this
dispatch, was appointed in his place.

After the new cabinet was organized, the
policy of the administration was changed; and
it cannot be doubted but that, at the date of
this dispatch, the President had assumed ex-
traordinary powers, and was, in point of fact,
to a considerable extent, in the exercise of the
legislative as well as the executive powers of
the government.

Assuming that the dispatch was issued in
pursuance of competent authority, it must be
considered as conferring a special power, to
be exercised only in the manner therein pre-
scribed. In this view of the subject, it is im-
material whether the power to grant the islands
on the coast was vested in the governor before
or not, or in what manner, if the power did ex-
ist, it was required to be exercised, as the effect
of this order, emanating from the supreme
power of the nation, was to repeal the previous
regulations upon the subject, and to substitute
a new one in their place.

Strong doubts are entertained whether the
islands situated immediately in the Bay of San
Francisco are either within the words of the
dispatch or the declared purpose for which the
power was conferred , but it w unnecessary to
determine that point in this investigation.

Waiving that point at the present time, we
come to consider the question whether, upon
the proofs exhibited, the power was exercised
in this case in a manner to give validity to the
grant; and that inquiry necessarily mvolves
the construction of the dispatch.

Omitting the formal parts, its effect was to
authorize the governor, in concurrence with
the Departmental Assembly, to grant and dis-
tribute the lands on the desert islands adjacent
to the department to the citizens of the nation
who might solicit the same. By the terms of
the dispatch, the power to grant and distribute
such lands was to be exercised by the governor,
in concurrence with the Departmental Assem-
bly; by which we understand, that the Assem-
bly was to participate in the adjudication of
^e grant, whenever a petition was presented,
the first question to be determined was, whether
the grant should be made and the title papers
issued; and. by the plain terms of the dispatch,
an affirmative adjudication could not be legally
made, without the consent of the Departmental
Assembly. Whether a subsequent ratification
of the Act by the Assembly might not be equiva-
lent to a previous consent, is not a question
that arises in this case, for the reason that no
such ratification ever took place.

All we mean to decide, in this connection, is,
that by the true construction of the dispatch,
the act of adjudication cannot be held to be
valid without the concurrence of the Depart-
mental Assembly, as well as that of the gov-
ernor.

In this respect, the provision differs essen-
tially from that contained in the Regulations
of 1828, under which the approval of the As-
sembly was an act to be performed after the
espedienie had been perfected, and after the

See 28 How.

incipient title papers had been issued by the
governor. His action preceded that of the As-
sembly, and in contemplation of law was sepa-
rata and independent. After the grant was
made and executed by the ^vernor, and coun-
tersigned by the secretarjr, it was the duty of
the governor to transmit it to the Departmental
Assembly, for its approval: and if it was not so
transmitted, it was the fault of the officer, and
not of the party.

Other differences between the Regulations of
1828 and the provisions of that dispatch might
be pointed out; but we think it unnecessary,
as those already mentioned are deemed to oe
sufficient to show that the decisions of this
court, made in cases arising under those regu-
lations, have no proper application to the ques-
tion under consideration.

From the words of the dispatch, we think it
is clear that the power conferred was to be ex-
ercised by the governor in concurrence with
the Departmental Assembly; and consequent-
ly, that a grant made by the governor without
such concurrence was simply void. This view
of the question finds support in the Mexican
law defining the functions and prescribing the
duties of the governor, and those of the De-
partmental Assembly. That law was enacted
on the 20th day of March, 1887, and continued
in force during the administration under which
this dispatch was issued. 1 Arrillago, Recop.,
Vol. I., pp. 202 and 210. Many duties were
devolved, oy thai law, upon the governor, and
also upon the Departmental Assembly, where
each was required to act independently of the
other. But other duties were prescribed, in the
performance of which the governor and the As-
sembly were required to act in concurrence. In
the latter class, the governor could not act sepa-
rately, though in some instances it was compe-
tent for the Assembly to act in his absence.

Concurrent duties, it seems, were usually per-
formed in open session, in which the governor,
when present, presided; but he had no vote,
except when, from absence or otherwise, the
members present were equally divided. The
Assembly consisted of seven members, chosen
by the electors qualified to vote for deputies to
the General Congress.

Those in charge of the Supreme Govern-
ment, or some of them, had been much in pub-
lic life, and it must be presumed that the dis-
patch under consideration was not framed
without some reference to that law. On exam-
ining the words employed in the law, to express
and define concurrent action, and comparing
them with the words of the dispatch translated
" as in concurrence with," we find they are the
same in the original language. Further support
to the construction here adopted is derived
from the declared purpose of the dispatch, as
appears in its recitals. Mexican authorities had
long dreaded the approach of foreigners to her
western coast, and the language of the dispatch
shows that its great and controlling purpose
was to promote the settlement of the unoccu-
pied islands by trustworthy citizens of the na-
tion, with a view to ward off that apprehended
danger. They fear^ that those islands, espe-
cially those further south and nearer to the
track of commerce into the Pacific Ocean,
might become the resort of military adventur-
ers, and be selected by those desirious of in-

461

813-318

SlTPBBlCB COUBT OF THB UkITBD StATBS.

Dec. Term,

vading that remote department as places of
rendezvous or shelter; and in the hope of avert-
ing that danger, or, in case of its approach, of
supplying the means of timely information,
they desired that their own citizens might pre-
occupy those exposed positions. In this view
of the subject, the President, no doubt, re-

farded the power to be exercised under the
ispatch. as one of importance and delicacy,
and might well have desired to prescribe some
check upon the action of the governor; and if
so, it would have been ditflcult to have devised
one more consonant with the then existing laws
upon the general subject, or better suited to
the attainment of the object in view, than the
one chosen in this dispatch.

For these reasons, we are of the opinion that
the governor, under the circumstances of this
case, had no authority, without the concurrence
of the Departmental As8embl3r, to make this
grant. Whether the person specially designated
m the dispatch as the fit subjects for the bounty
of the government stand in any better situation
or not, is not a question in this case. Having
come to the conclusion that the grant is void,
it does not become necessary to consider the
evidence offered to prove possession. On that
point, it will be sumcient to say, it is conflict-
mg and unsatisfactory; and if true, is not of a
character to show any right or title in the land
under the Mexican Government, or any equity
in the claimant, under the Act of Congress re-
quiring the adjudications to be made.

The decree of the district court is, therefore, re-
wrsed, and the cause remanded, with dtreeOons
to dismiss the petition,

Rev'gr— Hoff. L. C, 100.

Glted-1 Black. 252 ; 2 Black, 202; 1 Wall., 7i6>782 ;
6 Wall., 438.

THE UNITED STATES,

JAMES NOE.
(See S. C, 23 How., 312-818.)

THE UNITED STATES, Appt.,

ANTONIO MARIA OSIO.
Argued Feb. 13, 1860, Decided Mar. 12, I860,

APPEAL from the District Court of the Unit-
ed States for the Northern District of Cali-
fornia.

This is the same as the preceding case, and
the same counsel appeared.

Mr. Justice Clifford delivered the following
order:

This is an appeal from a decree of the Dis-
trict Court for the Northern District of Cali-
fornia, affirming a decree of the Land Commis-
sioners.

On examination of the transcript we find it
is the same case as the pre9eding, in which the
opinion has been delivered reversing the decree
of the district court — by some mistake two
transcripts of the record were taken out in the
court below, and each has been docketed in
this court.

Accordingly, the case is dismissed, but no
procedendo will issue to the district court.

Specific performance — stale demand — laches —
abandoned land claim.

It Is a sreneral principle of equity, to grant a de-
cree of specific performance only in^cases where
there is a mutuality of obligation, and when the
remedy is mutual.

It wiU not be rendered in favor of one who has
been guilty of an unreasonable delay in fulfilling
his part of the engragement or who has slept for a
long period on his rights, and comes forward at
lasttwnen circumstances have changed in his favor,
to enforce a stale demand.

It would be unjust to revive long antecedent
covenants and dormant engagements in Califor-
nia, since the change in the condition of that
country, where they were treated as abandoned.

Where, in a claim of a Mexican grant, nothing was
done to place the claim of the applicants upon the
records of the department, and the duty of a colo-
nist was wholly disregarded, the claim must be
treated as one abandoned prior to the date of the
Treaty of Quadaloupe Hidalgo, and not entitled
to confirmation.

Arffued Feb. 7, 1860. Decided Mar. IS, 1860.

CROHS appeals from the District Court of the
United States for the Northern District of
California.

The history of the case and a statement of
the facts appear in the opinion of the court.

Messrs. J. S. Blabok, Atty-Oen., and E. M«
Stantoiif for U. S. :

There is but one point in this case, and that
is too simple to admit of any elaboration.

There was no grant. There was a petition
with a marginal order, but that marginal order
was not a grant, although Alvarado swears
that it was. The court is bound to give it this
proper legal construction, independent of all
oral evidence. Alvarado did not swear to the
truth when he said that he considered and re-
gu^od it as a definitive grant, passing the title
out of the nation and vesting itinElwell. If
he had so regarded it, why md he not make it
in the proper form, and according to the laws
and customs of the government under which
he was acting? Why was it that he caused no
record of it to be made on book, nor the espe-
diente to be filed among the archives, as the law
upon the subject expressly and positively com-
manded him to do? If the papers produced
from the private custody of the claimant could
for a moment be deemed regular, in other re-
spects, the objection that they are not on record
and that there is no record at all of the grant,
would be fatal to the validity of the claim.

Messrs. Calhoun Benbam and F. Mar-
bury, for Noe.

The title is valid. The petition and conces-
sion, taken together, disclose proper parties, a
definite object, a good and valuable considera-
tion, and apt and competent words of grant
operative in prasenti. These elements con-
stitute a good grant. It is true there are two
conditions expressed on the face of the grant to
which it is subject. The grant is eood under
the Colonization Law of 1824 and the Regula-
tions of 1828.

The informs was not necessary in fact or law.

Keg. 1828, art. 8.

Objection has been taken to the grant that it

M U. 8.

1859.

United States v. Noe.

812-818

lacks foimality; that it is not couched in the
words usually employed b^ the Mexican au-
thorities. This is immatenal. If the instru-
ment contains words which express, or from
which we can even collect, an inlention or a
promise to grant, it is good.

lAi>rkin'8 case, 59 U. 8. (18 How.), 668.

The land was not occupied, but it was situ-
ated in a very remote quarter of the country,
in the midst of hostile Indians. This rendered
settlement impossible, for several years after
the date of the grant, and until political dis-
turbances arose which preventea the grantee
from occupying it up to the change of flags.

In regard to this point, the case is stronger
than Fremonfn. Elwell's inability to make a
diseno at the time the petition was presented,
was stated as in that case, and as the evidence
discloses it, for the same reasons. Here its pre-
liminary production was dispensed with, as in
that case, and the conditions usuially imposed
were not inserted in the grants Yet, in the
Fremont case, where the conditions were im-
posed, the court expressed themselves as being
encouraged in homing him excused for his de-
fault, because the Mexican Qovernor had dis-
pensed with the tUseno for the reasons urged.

There could not, however, be default in this
case, for no time was fixed for performance.

Arredando^s case, 6 Pet., 745.
The presumption of abandonment cannot arise.
There was no denouncement, and the right was
unimpaired at the date of cession. Denounce-
ment was necessary to devest the grant.

Fremonfs ease, 58 U. 8. (17 How.), 568.

The grant passes the whole island. The pe-
titioner asks for the island, and the governor
grants what is asked for; it is already segre
gated. The question of quantity is adjudicated.
The court will not go behind the act of the
governor. The act does not, nor with pro-
priety can, show what the area is.

If the call for quantity is repugnant to metes
and bounds, it must give way, especially when
the call for metes and bouncfs is shown by the
evidence to have been the one chiefly relied
uprm at the time the description was made.

Lodge's Lessee v. Lee, 6 Cranch, 237 ; 2 Mass.,
880; 6 Mass., 131; 5 Pick.. 136; 6 Wheat., 8.
C. R., 5.->2; 8 Wend., 183; 6 W. 8. Dig.,
" Boundaries," 474, and cases cited; CleteUind
V. SmUh, 2 Story, 278; Nelson v. HaU, I Mc-
Lean, 518; Sturgeon v. Floyd, 8 Rich., 80;
Newsom v. Pryor*s Lessee, 7 Wheat., 7.

Mr. Justice Campbell delivered the opin-
ion of the court:

Robert Elwell, in a petition to Qovernor
Alvarado, that bears date in 1841, represents
that he bad resided in the country sixteen vears,
was married to one of the natives, and had a
numerous family, and had been employed in
commercial business; that his capital had been
impaired, and he had been reduced to enlist as
a private soldier in the militia, and had served in
the year 1838. under the command of the gov-
ernor, in the south, and had received no com-
pensation. He solicits of the governor, as a
generous recompense to his subordinate, and
also with a view to promote the progress of ag-
riculture, to confer upon him a concession of a
parcel of land situated in the northern fron-
tier, and forming an island in the Sacramento

Bee 23 How.

River, eighteen leagues from the establishment
of Don Aug. Sutter, containing five square
leagues.

The governor, in March, 1841, ''in consid-
eration of the services and merits specified,"
grants the land asked for, the claimant to
abide the reports, as to whether the land is
vacant, with whatever else that is proper, and
that he shall furnish the diseru> in order to
commence the espedierUe.

Two days before the claim was presented to
the Board of Commissioners in 1852, Elwell
conveyed his claim to the appellee. He (El-
well) was examined as a witness, and testifies
that he had presented a diseno some three
months after he had exhibited his petition ; that
there was no information or formal report made
to the governor, and that he had never occu-
pied the land or had judicial possession deliv-
ered to him ; that there was no ofllcer to perform
these duties.

There is some testimonv to show that Noe
had a tenant on the land in 18^1, who inhab-
ited a small house, and that the whole region
of the Sacramento above Sutter *s fort was not
in a situation to be occupied, owing to the dan-
gerous character of the Indians.

The Board of Commissioners rejected this
claim; but, on appeal, their sentence was re-
versed by the district court, and the claim con-
firmed to the entire island, provided it did not
contain more than eleven leagues. From this
decree cross appeals have been prosecuted to this
court.

As an inducement to the allowance of his
petition, the applicant refers to the services he
had rendered to the governor in a military
campaign ; but the consideration of the grant
iff the 'Proposed improvement of the depart-
ment, by the settlement and occupation of its
waste lands. The authority of the governor to
make the grant is derived from the laws that
provide for that object.

The decree of the governor indicates that
the title was to be perfected in the usual man-
ner; and consequently, that it was to be sub-
ject to the conditions of colonization. An inter-
val of eleven years elapsed from the date of
this decree till the presentation of the claim to
the Board or Commissioners in lb52. During
this time, the applicant took no step towards
the completion of his title, or the fulfillment of
the obligations it imposed. There is no es-
pedierUe in the archives to show the segrega-
tion of this island from the public domain, nor
report to the Departmental Assembly or the
Supreme (Government to testify that a citizen
had been enlisted, "to give impulse to the prog-
ress of agriculture in the country." There
was no delivery of judicial possession, nor any
other assertion of right, by which the inhabit-
ants could be charged with notice of this claim.
A great change has taken place in the condition
of the country, and other persons have as*
sumed to settle and improve the land, which
the applicant failed tg do.
* It is a general principle of equity, to grant a
decree of specific performance only iii cases
where there is a mutuality of obligation, and
when the remedy is mutual; and that it will
not be rendered m favor of one who has been
guilty of an unreasonable delay in fulfilling his
part of the engagement, or who has slept for a

468

83M26

BUFBBMB COUBT OF THB UHITBD STATia.

Dbc. Tbrv,

lengthened period on hiB rights and comes for-
ward at last, when circumstances have changed
in his favor, to enforce a stale demand. And
it would be manifestly unjust to revive long
antecedent covenants and dormant engagements
in Calif opiia, since the change in the condition
and circumstances of that country, where it is
evident that they were treated as abandoned,
and imposing no obligation previously to that
change.

The onlv explanation for the laches of the
applicant is found in the testimony of the wit-
nesses Castro and Combs, who sav: ''The
whole of the region of country of the Sacra-
mento above Sutter's fort, or New Helvetia,
was not in a situation to be settled upon by in-
dividual grantees, owing to the hostilities of the
Indians; ''that the Indians were numerous
and hostile."

But this fact existed at the date of the de-
cree in l«i41, and will account for the abandon-
ment of the purpose, that the applicant seems
to have entertained at one time, of making a
settlement. It is hardly probable that he could
have anticipated the revolution that took place
long afterwards in the condition of the coun-
try, and was then prepaHng to avail himself of
the advantas:e to be derived from it.

In The United 8tatee v. Kingdey, 12 Pet.,
476, the claimant souj^ht to excuse the non-per-
formance of the condition, because "the coun-
try was in a disturbed and dangerous state,
from the date of the grant, and for a lon^ time
previous, till the transfer of the provmce."
The court say: "All the witnesses concur in
stating there was no more danger after the ap-
pellee petitioned for the land than there had
been before and at the date of the application.
The appellee, then, cannot be permitted to urge
as an excuse, in fact or in law, for not comply-
ing with his undertaking, a danger which ap-
plies as forcibly to repudiate the sincerity of
his intention'' to improve the land when he
petitioned, as it does "his inability from such
danger to execute it afterwards."

The court say: that "concessions of land
upon condition have been repeatedly confirmed
by the court, and it will apply the principles of
its adjudications to all cases of a like kind. It
will, as it has done, liberally construe the per-
formance of conditions precedent or sub-
sequent in such grants. It has not nor will it
apply, in the construction of such conditions
in such cases, the rules of the common law.
But this court cannot say a condition wholly
unperformed, without strong proof of sufficient
cause to prevent it, does not defeat all right of
property in land, under such a decree as the
appellee in this case makes the foundation of
his claim."

In De ViUmont v. United Statee, 18 How.,
261, the court say: "The only consideration
on which such a title could be funded was in-
habitation and cultivation, either by De Vile-
mont himself or his tenants; and having done
nothing of the kind, he l\ad no right to a title;
nor can the excuse be heard, that he was yre^
vented from a compliance with the conditions
by the hostility of the Indians, as he took his
concession subject to that risk."

In the cases of TheU 8. v. ^em<wt,17How.,
660, and U 8. v. Beading, 18 How., 1, the
court have considered the effect of the con-

464

ditions usually accompanjing the grants to land
in Califomia,and how far their fulfillment is to
be exacted in determining the validity of thoee
claims. The court say, in the first case. " there
is nothing in the language of the conditions,
taking them altogether, nor in their evident
object and policy, which would justify the court
in declaring the lands forfeited to the govern-
ment, where no other person sought to appro-
priate them, and their performance had not
been unreasonably delayed."

In the latter case, it is shown that the grantee
displayed good faith and reasonable diligence
to perform the conditions annexed to his grant:
ana all presumptions of an abandonment of his
claim were repelled by affirmative and satisfac-
tory proof.

But, in the present instance, we find nothing
to have been done to place the claim of the ap-
plicant upon the records of the department:
and the duty of a colonist was wholly disre-
garded. Within the doctrine of the cases we
have cited, the claim must be treated as one
alMmdoned prior to the date of the Treaty of
Guadaloupe Hidalgo, and is not entitled to the
confirmation.

Decree of the district court reversed; eauee re-
manded ; petUum to be dismissed.

Cited— 1 Black, 668.

THE UNITED STATES, Appt.,

FRANCISCO PICO et al.

(See 8. C, 28 How., 821-8M.)

When Mexican avUicrity oter public lands termi-
nated— invalid claim.

In the Act of Congrera of 1851. and the decisions
of this court, the 7th July, 1846, is referred to as the
epoch at which the power of the Qovemor of Cali-
fornia, under the authority of Mexico, to alienate
thepublic domain, terminated.

where, previously to that date, the claimant did
not acquire a title to the land, nor hss he acquired
an equitable claim to it bv any act done upim the
land in the fulfillment of the colonization policy of
the State, the decree in bis favor must t)e reversed
and his petition dismissed.

Argued Feb. 16, 1860. Decided Mar. 12, 1860.

APPEAL from the District Court of the Unit-
ed States for the Northern District of Cali-
fornia.

This case arose upon a petition filed before
the Board of Land Commissioners in Califor-
nia, by the appellees, for the confirmation to
them of a claim to a certain tract of land.

The Board of Land Commissioners entered a
decree dismissing the petition. The district
court, on appeal, reversed this decree and en-
tered a decree confirming the claim; whereupon
the United States took an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Messrs. J. S. Black* Atty-Gten., and E«H.
Staiiitoiit for appellants:

This grant is not mentioned in any original
index. Nor does it appear that any trace of
the espediente or other paper pertaining to the
grant existed among the archives earlter than
1858. The allegation that such a grant was
made is, therefore, contradicted by the record.

04 U.S.

1859.

Unitbd States t. Pioo.

821^26

In addition to that, an examination of the orig-
inal papers will fumish occular demonstration
that all of them, from beginning to end, are fab-
ricated.

If we assume that the papers produced in this
-case are genuine and authentic, there is still n6
legal grant of the land, because —

1. There is no petition to the governor solic-
itinff the land agreeably to the Regulations of

2. The marginal decree made by Pico upon
the 11th of June, 1846, was not a grant, and
does not profess to be a grant.

8. The grant itself, which is dated July 20,
1846, was after the conquest of the country by
the American arms, and when the Mexican au-
thorities had been entirely displaced and ex-
pelled.

4. There beine no record evidence of the
grant, there could be no legal title in the grantee.

Me99T$. B. H. Gillet and StsAly Sb Kin^^ »

:f or appellees:

FaeUi Proved in the Beeord.

The signatures to the title papers are proved
to be genuine.

The grant and steps taken to procure it are
proved.

Possession was not taken immediately, be-
<»u8e of the hostility of the Indians and the
onsettied stale of the' country.

Arffument,

1. Mo evidence can be admitted in this court
in'cases on appeal, which was not offered and
admitted in the court below.

2. No Question can be raised or decided on
appeal, which was not raised below.

8. When an equitable title is once vested un-
der a grant by an officer having the power to
make grants, it cannot be devested by the gov-
-ernment except upon a legal denouncement by
a third person.

4. Conditions subsequent, if not performed,
do not render a grant void nor autnorize the
^vernment to forfeit the grantee's rights for
Its own use.

5. By the laws, usages and customs of Mex-
ico, a grant is valid when bv its terms it consti-
tutes a conveyance, whether it conforms to the
usual formalities or not.

6. It is to be presumed that in making the
grant the governor performed his duty, and
those who dispute that he did, must prove it.

7. The United States, as the subsequent
grantee of Mexico, cannot deny the former re-
citals of the latter in relation to those contained
in its previous grant of the same land to the
claimant.

8. The regulations relating to the formalities
in making the ^ants are directory and not
mandatory, and if not strictly conformed to, do
not destroy the validity of the grant.

9. The grant having been made, in fact, June
11. 1846, and the final title papers ordered, an
equitable right vested in the grantee which has
not been devested; on the 11th of June the last
act had been performed by the claimant which
he could perform to per^t his title, and the
governor had made his decree and conceded
what had been asked. Everything had been
-done but a final act which the government was
bound to perform, and this duty devolved upon

See 28 How. U. S.. Book 16.

the^ United States under the Treaty. The claim-
ant's rights became vested, and no neglect of
officials after that, if there had been any, could
deprive him of his right.

10. If the paper dated July 20, 1846, at Los
Angeles, is held to be the origin of the title,
such title is valid, and in no way affected by
the American forces taking possession of Mon-
terev only thirteen days previous thereto.

Monterey is on the Pacific coast, from one
hundred to two hundred miles southerly of
San Francisco, and near that distance south-
west of the grant in question, and about four
hundred miles northerly of Los Angeles.

Under such circumstances, the acts of the
Mexican authorities at a distance from the
places occupied by the American forces, and
at points where thevdid not attempt to control,
must be as valid and effectual as at any anterior
period. The former laws remained in force,
and these authorized the governor to make
grants. These laws were not annulled and
others made in their place; the former officials
were not removed, nor others substituted.

The political branch of the government hav-
ing fixed the date of the acquisition of Califor-
nia, this court cannot alter it or fix one for it-
self. That branch fixed the date of the Amer-
ican acquisition on the 2d of February, 1848.
and agreed to protect tho^ who had previously
who had previously acquired rights under Mex-
ico, not excepting those dated after Feb. 7,
lo46.

11. The title of the United States to lands in
California, dates, not from the commencement
of ho6tilities,but from the date of the Treaty by
which we acquired them.

Before the war with Mexico, we had no claim
upon the lands in California or elsewhere.
When the American flag was raised at Mon-
terey, July 7, 1846, it was not done by order of
our government, nor did those who took pos-
session know the existence of the war for more
than a month afterwards.

This court, in Fleming y. Page, 9 How., 614,
expressly declared that the war was not one of
conquest.

This decision shows that our rights in Cali-
fornia were those of military power, and that
the country still belonged to Mexico as a part of
her dominions. The United States have never
claimed it as a conquest, but simply as a pur-
chase. They bought and paid for it, and their
title dates with the agreement of purchase.
Prior to that, although they had taken posses-
sion, the title was in Mexico.

The Land Commission Act, section 11, makes
no exceptions of the grants made after July 7,
1846. but extends to all cases alike, except city
and village lots held by corporations. This ex-
ception (in section 14), proves that none was in-
tended in the general provisions of the Act. It
shows what was intended by Congress as well
as by the Treaty. The war not having been
prosecuted for conquest, the Treaty provided
the purchase, and Congress took measures for
confirming rights which had not passed to
our government, but remained with Mexican
grantees. Consequently the present grant must
be confirmed, because it was made and com-
pleted before the Treaty under which our gov-
ernment claims.

86S-880

BXTPBBMB COXTBT OV THE UhtTBD BtATBB.

Dsa Tkem^

i/r. JuiUee Caatpbell delivered the opinion
of the court:

The appellee, a Mexican by birth, obtained a
decree of confirmation in the district court for
a parcel of land, known as Las Calaveras, con-
taining eight square leagues, and situated in
Tuolumne Ck>unty, in California.

Hie testimony is an e^pedienie, existing in the
archives, in the custody of the surveyor-gener-
al, from which it appears that the claimant pre-
sented, to the jURtlce of the peace and military
commandant at New Helvetia, a petition, rep-
resenting that he desired to obtain a grant for
the land described in his duena; and, to expe-
dite his purpose, he requested a favorable re-
port. One was made, bearing date the 1st
of May, 1846. A similar representation was
made to the same officer in the district of Yer-
ba Buena, who declined to act, because the place
was not within his jurisdiction. The prefect
of that portion of the department- certifies,
on the 18th of May, 1846, to the capacity of the
claimant, and that the land was vacant. The
governor, on the 11th of June, 1846, made an
order for the issue of a tUtUo in form.

Here the et/pedUrUe terminates ; but the claim-
ant produces from his custody a tUulo, bearing
date at Los Angeles, the 20th July, 1846.

To strengthen his case, he adduces the testi-
mony of a witness, tq the effect that the witness
had built a house upon the land in 1847, and
had occupied it as tenant from that date; that
there were people who inhabited and cultivated
the land for the claimant, and that before 1847
the disturbances in the country hindered any
improvement or settlement.

This testimony is contradicted by a witness
produced on the part of the United States, who
testifies with precision, and seems to have had
every opportunity of acquiring exact informa-
tion. He says ttiat he came to reside in the
vicinity of the land in 1848, and that there had
been no improvement or occupation of it, and
that the cattle seen upon the land did not be^
long to the claimant; that he had never heard
of a claim by the petitioner until 1858.

There are'grave objections to the allowance
of this claim. There is a departure from the
regular and usual modes for securing lauds un-
der the Colonization Laws. There is some rea-
son to believe that the governor was not at Los
Angjeles at the date of the order; and there is
a failure to show, in any satisfactory manner,
any assertion of claim or title under it, until
the presentation of the claim, in 1858, to the
Board of Commissioners. The claimant is a
kinsman of the governor, and we should expect
to find on the part of the governor the most
exact attention to the laws prescribing rules for
his guidance under such circumstances. Be-
sides, the tituh bears date of a dav when the
conquest of Upper California haa been com-
pleted by the military occupation of Monterey,
Sonoma, Bodega, Yerba Buena, and the region
of the Sacremento and American Rivers, by the
forces of the United States.

The commandant in that portion of the de-
partment was making a rapid retreat to Lower
California, leaving ll^e country to the control of
the United States. From the capture of Mon-
terey, on the 7th July, 1846, till the surrender
of Los Angeles and the organization of a terri-
torial government by Commodore Stockton,

under the United States, there was scarcely six
weeks. The Califomian Goverament, for aU
practical purposes, was subverted by the capture
of Monterey and the country north of it.

In the Act of Congress of 1851 (9 Stat at L..
681), and the decisions of this court, that dav
is referred to as the epoch at which the power
of the (governor of California, under the author-
ity of Mexico, to alienate the public domain,
terminated. Previously to that date, the claim-
ant did not acquire a title to the land, nor has
he acquired an equitable claim to it by any act
done upon the land in the fulfillment of the col-
onization policy of the State.

Upon me whole cote, our opinion m, that the
appellee hoe not sustained the validily of hie
daim, and that the decree in hisfawr muet be re-
f)ereed, and hie petition diemieted.

Cited— 2 Blaok, 870 : 1 WalL, 428 : 0 WaU., 680.

WILLIAM WISEMAN, IHff, in Br.,

ACHILLE CHIAPPELLA.

(S. C, 82 How., 8i»-880.)

Wh€U sufficient demand of payment ofhQl, fcKen
the acceptors are ahtientr--demand rued not be
personal — demand at residence or office — when
made — prima facie evidence — when usage gos-
ems.

Ooinff several times to the oflloe of the aooeptois
of a bill in order to demand jMiyment for the same,
andflndlDff the/Ioors dosed, and no person tbere
to answer the demand, is a suffloient demand.

Further inquiry for them was not required by
the custom of merchants.

From such an artifice the law will presume that
they did not Intend to pay the bill on the day when
it has become due, and tliat further ioquiries need
not be made for them before a protest can be made
for non-payment.

A demand for payment need not be personal, and
it will be suffloient if It shall be made at acceptor's
house or place of business in business hours.

It is sullioient if the bill be talten to the residence
of the acceptor, as that may be stated in the bill,
for the purpose of demanding payment^ and to
show that the house was shut up, and that no one
was there.

Presentment for payment must be made on the
day the biU falls due ; and if there be no one rea.1y
at the place to pay the bill, it should be treatcMl as
dishonored, and protested.

In the presentment of a bill for payment, the de-
mand may be made of a merchant acceptor at his
counting room or place of business.

If that be closed, so in fact that a demand cannot
be made, or the acceptor is not to be found at his

{>lace of business ana has left no one there to pay
t, it will be considered as due dlligenoe, and fur-
ther inquiry for him is not necessary.

Presentlnir a bill under such circumstances at
the place of business of the acceptor will be pfi-
ma fw^ evidence that It has been done at a proper
time of the day.

The notary is protected where the protest was
made in conformity with the practice and law of
the place, where the bill was payable.

Argued Feb. S8, 1860, Bedded Mar. 12, 1S60.

N ERROR to the Circuit Court of the United
Slates for the Eastern District of Louisiana.

NoTB. —Orti/leote of notary, evidence of whatfaetn.
Demand, presentment, and notice. Whw drawer or
indorser not enUUed to notice. See note to Fenwick
V. Sears, 6 tJ. 8. (1 Cranch), 260.

Liability of notary in protest of paper, and of bank
empUtyitig him.

A notary, by accepting the office and enCeriDr
upon the dl8cnar8:e of its duties, contracts with

64 C. 8.

1859

WI6KMAN V. CbIAPPBLLA.

86tf-8b0

This case arose upon a petition filed in the
court below, by the plaintiff in error, to recover
the amount of a foreign bill of exchange from
the notary who had been employed to protest
it, and through whose negligence, it was al-
leg^, the drawers were discharged.

The case having been submitted to the court
by the parties, a Judgment was entered by the
court in favor of the defendant on two grounds :

First. That the protest was sufficient.

Second. That the action was prescribed;
whereupon the plaintiff sued out this writ of
error.

A further statement of the case appears in
the opinion of the court.

Mr, J. P. Benjamin* for plaintiff in error:

1. The protest was insufficient. Calline at
the office of the acceptors of the bill and find-
ing it closed, is not such due diligence as will
excuse the want of presentment and demand.

The necessity for due diligence is not ques-
tioned; but cases are'citied in the opinion of
the court, to show that the action of the notary
was sufficient to constitute due diligence. These
cases seem to us not to warrant ue inference
drawn by the court, but rather to establish the
reverse.

In the case of ThA Union Bank v. Fmolkes, 2
Sneed, 555, the court held that want of pre-
sentment and demand was excused because the
place of business was open, but no one had been
left there to answer; the court expressly stated
that if it liad been closed, further diligence
would have been necessary.

In the case of Shed v. Brett, 1 Pick., 418, the
court held that plaintiff must be nonsuited if
the demand at the place of business was not

?roven to have been made in business hours,
'he protest in the present case does not allege
anv visit in business hours.

In the case of The Branch Bank at Deeaiur v.
Hodges, 17 Ala., 42, there was actual present-
ment and demand of the book-keeper of the
acceptors at their counting room.

In the case of Brown v. Turner, 15 Ala., 832,
there was actual demand of the agent of one
partner, boUi partners being absent.

In Watson Y, Templeton, 11 La. Ann., 187,
the court held that as against a partnership, the
want of demand was excused wheie the bill
was presented at the commercial domicil with-

in the usual business hours, but reserved its
opinion as to cases where a person does business
alone, and has a dwelling as well as a place of
business, which is found closed. In support of
this distinction between bills accepted by a firm
and those accepted by individuals, the court
cites Story on Promissory Notes, sec. 285; but
we have sought in vain in the authority re-
ferred to and elsewhere, for anything to sus-
tain this distinction, which seems to be quite a
novel doctrine in the law of bills and notes.

In Wmams v. Bank of U, A. 2 Pet. 9«. and
the case of Goldsmith v. Bland, therein cited
and approved, there was, in the former case,
further inquiry and information received, that
the party and his family had left town on a
visit; and in the latter, there was no person in
the counting-house in the ordinary hours of
business; but the counting-room is not stated
to have been closed, the implication being, on
the contrary, that it was open.

The foregoing are all the authorities cited in
the opinion of the circuit court, no one of which
goes the length required to sustain the validity
of the protest now in dispute.

The authorities, to show its insufficiency, are
very numerous.

M' Grader v. Bank of Washington, 9 Wheat.,
601 ; OranUe Bank v. Ayres, 16 Pick., 392: EOU
V. Commercial Bank of Natehet, 7 Uow., Miss.,
294; FoUainv. Dujyre, 11 Rob., 470; CoUins v.
BuUer, 2 Str., 1087.

The rule as laid down by all text writers is,
that if the acceptors have absconded and can-
not be found, presentment and demand being
impossible, the want of them is excused; but
even where the acceptor has become bankrupt,
or has removed to another place within the
same State, or is absent on a Journey, yet, if he
has a dwelling, demand must be xnade there,
in order to hold the other party.

Story. Prom. N., sees. 237, 288; Story, BDls,
sees. 851. 852; Byles, BUls, pp. 141, 159; Chit.,
Bills, pp. 355, 888.

The only cases where want of Jurisdiction
and effort to find a party have been excused,
are those where a place of payment is desig-
nated in the bill or note.

Hine v. AUelv, 4 Bam. & Ad., 624; Buxton v.
Jones, 1 Man. & O.. 88.

Mr, Louis Janln, for defendant in error:

those who employ him that he will perform such
duty with iDtenrlty. dlligreDce and skill. Like other
ministerial officers, he Is liable In dama^res to any
person specially injured by his omission to per-
form or by hlB unsklllfuljperformance of a min-
isterial duty. Fo^arty v. Flnlay. 10 Cal., 238 ; Kln-
nard v. Wllimore, 2 Helsk., 619 ; Hover v. Ilarkhoff,
44 N. T., 113 ; Sawyer v. Corse, 17 Gratt.. 280.

The statute prssorlbln^ the powers and duties of
notaries ^nerally declares their liability to a pri-
vate action for damages resulting from negrllfrence.
Pogarty v. Flnlay, 10 Cal., 289; 2 N. Y. H. S., 284,
sec. 48.

Notaries are usually employed by l)ankers to pro-
test bills of exchaniret and It Is the well settled law
of many of the States that a banker who employs a
Gompetent notarv Is not Uable for the notary's neff-
leut to perform nls duty. Tiernan v. Ck)m. B*k of
Natchez. 7 How. (Miss.), 6i8 ; 7 M. & 8., 502 : Bowling
V. Arthur, 84 Miss., 41; Jackson v. Union B'k. 6
Harr. & J., 146 ; Bellemlre v. B'k of U. S., 4 Whart.,
1(KS : 4 Rawle. 884: East Haddam B'k v. ScovUl, li§
Conn., 808; Stacy v. Dane County B'k, 12 Wis.,
«»: Fabens v. Mercantile B'k, 28 Pick., 880;
Hyde v. Planters' B'k, 17 La., 666 : Frazler v. Gas
B'k, 2 Rob., 206; Baldwin v. B'k of La^ 1 La., Ann.,
18. But see, contra, Thompson v. B'k of South
Carolina, 8 Hill. (S. C.), 77 ; Allen v. Merchants' B'k,

8ee 28 How.

22 Wend.. 215; Ayrault v. Pacific B*k, 47 N. Y.,570 ;
8. C, 7 Am. Rep., 480.

Party cannot recover from a notary for havlnir
negrlected to protest a note levally, when, by his
own laches, he has put It out of his power to sub-
rogate the notary to his rights as tney existed at
the date of protest. Bmmerllng v. Graham, 14 La.
Ann., 880 ; Franklin v. Smith, 21 Wend., 624 ; Reed
f V. Darlington. 19 Iowa, 849.

A notary Is liable for loss occasioned by his neg-
ligence in failing to discharge his duty In proten^
Ing and delivering, or mailing notices of protest as
required by law. Want of diligence or skill on his
part must be shown. He Is not liable In a matter
in which Judicial construction was necessary to
enable him to know what his duty was. Neal v.
Taylor, 9 Bush., 880.

A notary Is not presumed to be a lawyer who Is
to revise or reverse the decision of his employer, as
to the character of a bill, and as to whether It is enti-
tled to days of grace or not. If, therefore, a bill Is de-
livered to him with directions to make demand, and
protest upon the wrong day, a right of action does
not arise against him on account of the error. He
Is not guilty of negligence in proceeding according
to the instructions of the bank giving him the
draft to protest. Commercial B'k of Ky. v. Var-
num, 40 N. Y., 280 ; S. C, 7 Hun, 286.

467

868-880

BUPBBMB COUBT OF THB UnITBD STATSe.

Dbc. Tbbk.

The circuit court held: flret, that the demand
was sufficient; seobnd, that if it was inauffl-
cient. this action was barred by the prescription
of one ^ear under article 8601 of the Civil Code
of Louisiana.

1. On the first point, the court cites Cttian
Bank v. Fkfu>lke$, 2 Sneed, 556; l^ed v. Brett,
1 Pick., 418; Branch Bank at Decatur v.
Hodges, 17 Ala.. 42; Brofcnv. Turner, 15 Ala.,
882: Burbank y. Beack, 15 Barb., 826.

The Louisiana case referred to by the circuit
court, but not quoted, is the case of Watson ▼.
Templeston, 11 La. Ann., 137.

Again in NoteB Exr, v. Bearrd, 16 La., 808.
the notary certified that '* at the request of the
holder of the original draft, whereof a true copy
is on the reverse hereof written, I demanded
payment of said draft at the counting-house.
Ac. *' The counsel for the defendant contended
that the protest should say that the bill was
presented and payment thereof demanded. The
court held that this was not necessary, and said :
* ' we are disposed to give such meaning to terms
U8cd by public ofilcers as will be understood by
the mass of mankind."

" The Act of the Legislature passed in 1827,
vests notaries with cerudn powers in relation to
these matters and gives more authenticity to
their acts than to private individuals. They
are public officers and the presumption of law
is that they do their duty."

The following English cases support the same
doctrine: Buxton v. Jone$, 1 Man. & 0., 89;
mne V. AUelv, 4 B. & Ad., 627, and 24 Eng.
C. L., 127. it was shown that on the day
V. hen the bill became due it was taken to the
]i]ace of payment, but the house was shut up
Hiid no further presentment could be made.
The court held that there was a presentment.
See, also, Burbridge v. Manners, 8 Campb.,
198.

The counsel for the plaintiff, indeed, endeav-
ors to distinguish these cases from the one be-
fore the court, because the number of the ac-
ceptor's residence was there stated in the face
of the bill. But while the courts evidently
speak of well known places where the present-
ment is to be made, they lay no stress upon the
manner in which they became known. The
proper place to present a bill to a firm is un-
doubtedly their counting-house; and whether
that be known to the notary by the number of
tlie house stated in the bill, or in any other
positive manner, the reason of the thing and
the conclusion of the thing must be the same.
Here the notary knew the counting-house so
well and so positively that he went to it several
times.

Mr, Justice Wayne delivered the opinion of
the court :

The plaintiff in this action alleges that he is
the holder and owner of a certain bill of ex-
change for $2,046.45, dated at Vicksburg, in
the State of Mississippi. May 18th, 1855, and
payable on the 28d Noveml)er, 1855, which had
been drawn by John A. Durden and A. Bur-
den on William Langton & Co. ,of New Orleans,
and accepted by them, payable to the order of
Langton, Sears & Co. ,aud bv that firm indorsed
in blank. He further declares that the bill,
when it became due, was intrusted to the de-
fendant, Achille Chiappella, a conunissioned

468

notary public for the City of New Orleans, to
demand payment of it from the acceptors, and
to protest the same for non-payment, should the
acceptors dishonor it; and that from his care-
lessness in not making a legal demand of the
acceptors, and from not having expressed it in
the protest, that the indorsers of uie bill had
been discharged from their obligation to pay it,
by a judgment of the Circuit Court of the
United States for the Southern District of Mis-
sissippi. He further alleges that the acceptors,
payees, and indorsers, were insolvent, and that,
from the insufficiency of the demand for pay-
ment to bind the drawers of the bill, the defend-
ant had become indebted to him for its amount,
with interest at the rate of five per cent, from
the day that it became due, the iSd November,
1855.

The defendant certifies in his notarial protest
that the bill had been handed to him on the day
it was due; that he went several times to the
office of the acceptors of it, in Gravier Street, in
order to demand payment for the same, and he
found the doors closed, and " no person there
to answer my demand." It also appeared that
one of the firm by which the bill had been ac-
cepted had a residence in New Orleans; that
no demand for payment had been made individ-
ually upon him ; and that no further inquiry
had been made for the acceptors than the re-
peated calls which the notary states he had made
at their office.

We think, under the circumstances, that such
repeated calls at the office of the acceptors was
a sufficient demand; that further inquiry for
them was not required by the custom of mer-
chants; and that the protest, extended as it had
been, is in conformity with what is now ^^er-
ally considered to be the established practice in
such matters in England and the United States.
We say, under the circumstances, for. as there
is no fixed mode for making such a demand in
all cases, each case as it occurs must be decided
on its own facts.

We have not been able to find a <^se, either
in our own or in the English reports, in which
it has been expressly rul^ that a merchant, ac-
ceptor of a foreign bill of exchange, havlhg a
notorious place of business, has been permitted
to close it up during the business hours of the
day, thus avoiding the obligation of his Accept-
ance on the day or its maturity, and then that
he was allowed to claim that the bill ought to
have been presented to him for payment else-
where than at his place of business. Though
such conduct is not absconding, in the legal
sense of that word, to avoid the payment of
creditors, It must appear, when unexplained. to
be an artifice inconsistent witli the obli|^tions
of an acceptor, from which the law will pre-
sume that he does not intend to pay the billon
the day when it has become due.

The plaintiff in this case does not deny that
the office of the acceptors was closed, as the
notary states it to have been. The only fact
upon which he relies to charge the defendant
with neglect is, that one of the firm of Langton,
Sears & Co. resided in New Orleans, and that
it was the duty of the notary to have made in-
quiry for him at his residence. No presump-
tion, under such circumstances, can oe made,
that the acceptors had removed to another place
of business, or that they were not intentionally

«4 U.8.

19!i».

WlBBMAK V. CbIAPPBLLA.

aes-daa

abHent from it on the day that they knew the
bill was payable. This case, then, must be de-
termined on the fact of the designed absence
of the acceptors on that day; and that inference
is strenghtened by no one havin/; been left there
to repfesent them.

All merchants register their acceptances in a
bill. book. It cannot be presumed that they
will be unmindful of the days . when they are
matured. Should their counting-rooms be closed
on such days, the law will presume that it has
been done mtentionally, to ayoid payment, and
on that account, that further inquiries need not
be made for them before a protest can be made
for non-payment.

Cases can be found, and many of them, in
which further inquiries than a call at a place of
of business of a merchant acceptor has been
deemed proper, and in which such inquiries not
haying been made, has been declared to be a
want of due diligence in making a demand for
payment; but the rulings in each cases will be
found to haye been made on account of some
peculiar facts in them which do not exist in this
case. And in the same class of cases it has
been ruled that the protest should contain a dec-
laration by the notary that his call to present
a hill for payment had been made in the busi-
ness hours of the day; but in no case has the
latter eyer been presumed in fayor of an accept-
or, whose place of business has been so closed
that a demand {or payment could not be made
there upon himself or upon some one left there
to attend to his business.

Lord EUenborough said, in the case of Orosse
y. Smith,l M. <& 8.. 545: " The counting house
is a place where all appointments respecting
business and all notices should be adoressed ;
and it is the duty of the merchant to take care
that proper persons shall be in attendance." It
was also ruled in that caee, that a ycrbal mes-
sage, imparting the dishonor of a bill, sent to
the counting-house of the drawer during the
hours of business, on two successiye days, the
messengqp knocking there, and making a noise
sufficient to be heard within, and no one coming,
was sufficient notice.

In this case the facts were, that Fea & Co.
had a counting-house at Hull, where the^ were
merchants, and one liyed within one mile and
the other within ten miles of Hull. The Mon-
day after Smith & Co. receiyed the bill, their
clerk went to giye notice, and called the count-
ing-house of Fea & Co. about half after ten
o'clock. He found the outer door open ; the
inner one locked. He knocked so that he must
haye been heard, had anyone been there, waited
two or three n^utes. and went away; and on
his return from the countine-room he saw Fea
& Co.'s attorney, and told him. The next Mon-
day he went again at the same hour, but with
no better success. No written notice was left,
nor was any notice sent to the residence of
either of the parties. The court took time to
consider, and then held, without any reference
to the clerk haying called at the counting-house
two success! ye days, that going to the couniiug-
house at a time it should haye been open was
sufficient, and that it was not necessary to leaye
a written notice, or to send to the residence of
either of the parties.

In Bancroft and HcUl Holt, N. P., 476. the
plaintiff receiyed notice of the bill's dishonor at

See 23 How.

Manchester, 24th May. The same day he sent
a letter by a priyate hand to his agent at Liyer-
pool, to ffiye defendant notice. The agent
called at the defendant's counting-house about
6 or 7 P. M. ; but the counting-house was shut
up, and the defendant did notreceiye notice of
the dishonor of the bill until the morning of
the 27th— Monday. Two ^points were jculed:
1st. That sending by a priyate- hand, to an
agent to giye notice was sufficient; 2d. That it
was sufficient for the agent to take the ordi-
nary mode to giye notice — the ordinary time
of shutting up was eight or nine. Where
the indorser of a note shut up his house in
town soon after the note was made, and before
it became due, and retired to his house in the
country, intending, howeyer; only a temporary
residence in the country, it was hela that a
notice left at his house, by haying been put into
the key hole, was sufficient to charge him.
Stewart v. Eden, 2 Caines, 121.

This court held, in WHUarM y. Bk, of U 8 ,
2 Pet., 96, that sufficient diligence liad been
shown on the part of the holder of the note to
charge the. indorser, under the following cir-
cumstances: a notary public employed for the
purpose called at the house of an indorser of
a note, to giye him notice of its dishonor; and
finding the house shut and locked, ascertained
from the nearest resident Ihat the indorser and
his family had left town on. a yisit. He made
no further inquiry where tneindorsar had gone,
or how long he was expected to be absent, and
made no attempt to ascertain whether he had
left any person in town to attend to his busi-
ness, but he left a notice of the dishonor of the
note at an adjoining house requesting the oc-
cupant to giye it to the indorser upon his re-
turn.

In making a demand for an acceptance, the
party ought, if possible, to see the drawee per-
sonally, or some agent appointed by him to ac-
cept; and diligent inquiry must be made for
him, if he shall not hie found at his house or
place of business, but a demand for payment
need not be personal, and it will be sufflcient if
it shall be made at one or the other place, in
business hours. Chitty, 274, 867.

It was formerly the practice, if the house of
the acceptor was shut up when the holder called
there ^to present the bill for payment, and
no person was there to represent him, an4 it
appeared that he had remoyed, that the holder
was bound to make efforts to find out to what
place he had remoyed, and Uiere make a pay-
ment. Such, howeyer, is no longer the prac-
tice either in England or the Imitcd States,
nor has it been in Uie United States for many
years. It is now sufflcient if the bill shall be
taken to the residence of the acceptors, as that
may be stated in the bill, for the purpose of de-
manding payment, and to show that the house
was shut up, and that no one was there. Hin$ y.
AUely, 4 B. & Ad., 624. It has been decided
by the Supreme Court in Tennessee, that the
protest of a foreign bill of exchange, drawn
upon a firm in New Orleans, with no place of
payment designated.where it appeared that the
deputy of a regularly commissioned notary had
called seyeral times at the office of the acceptors
to make demand of payment, but found no one
there of whom the demand could be made, was
sufficient to excuse a demand, and to fix the Ha*

469

47*-4rr

SuFRBMB Court of thb Unttsd Statbs.

Dbc. Tkbm.

bility of the indoraers to whom notice had been
given. Uruon Bank v.Fowlkes, 2 Sneed, 655. The
Supreme Court of Louisiana, in IFotem v. Tern-
pleUm, 11 La. Ann., 187, declares *' that a de-
mand made within the usual hours of business,
at the commercial domicil of a partnership, for
the payment of a note or bill due by the firm,
is a sufficient presentment; that it was not nec-
essary to make a further demand at the private
residences of individual persons. The place
of business is the domicil of the firm, and it is
their duty to have suitable persons there to re-
ceive and answer all demands of business made
at that place." Going with a promissory note,
to demand payment, to the place of business of
the notary, in business hours, and finding it
shut, is using due diligence. Shed v. Brett, 1
Pick., 418.

In the case of The Biranch Bk,, at Ikeatur v.
Hodgee, 17 Ala., 42, the Supreme Court of Ala-
bama say : '* Tlie court below excluded the pro-
test for non-payment,' because the presentment
is stated thereon to have been made of the book-
keeper of the drawees in their counting-room,
they being absent. This was erroneous. The
bill was presented at the place of business of
the firm, at their counting-room. If they had
intended to pay the bill. It was their duty to
have been t)re8ent on the day of payment, or
have left means for making such payment in
charge of some one authorii^d to make it. The
notary finding them absent from their place of
business, and their bookkeeper tiiere, might
well make protest of the dishonor of the bill
for non-payment upon presentment to and re-
fusal by him. ** When upon presentment for ac-
ceptance, the drawee does not happen to be found
at his house or counting-room, but is temporarily
absent,and no one is authorized to give an an-
swer whether the bill will be accepted or not, in
such case it would seem the holder is not bound
to consider it as a refusal to accept, but he
may wait a reasonable time for the return of the
drawee. He may present Uie bill on the next
day, but this delay is not allowable in a present-
ment for payment. This must be made on the
day thebill falls due ; and if there^be no one ready
ai the place to pay the bill, it should be treated
ab dishonored, and protested. Story on Bills,
sec. 250; Chit, on Bills, 9 ed., 400. The Supreme
Court of New York has ruled that where a no-
tary's entry case states that presentment and de-
mand were made at the maturity of a bill, at the
office of C. & S., the acceptors, this language
imports that the office was their place of busi-
ness, and it will be presumed in favor of the
notary, that the time in the day was proper.
Bu/rbank, PreMent of Eagle Bank of Rochester,
V. BnicA,15Barb., 826.

The preceding citation is in conformity with
wliat the Supreme Court of New York had
ruled thirteen years before, in the case of The
Cayuga Bank v. Hunt, 2 Hill, 086. Its lan-
guage is that where a notarial certificate of a
protest of a bill of exchange stated a present-
ment for payment at the office of an acceptor,
on the proper day, and that the office was
closed, but was silent as to the hour of the day
of doing the act, that it it was sufficient, and
ttitti regularity in that particular should be pre-
sumed.

We infer, from all the cases in our books,
notwithstanding many of them are contradic-

470

tory to subsequent decisions, that the practice
now, both in England and the United States,
does not require more to be done, in the pre-
sentment of a bill of exchange to an acceptor
for payment, than that the demand should be
made of a merchant acceptor at his counting
room or place of business; and if that be
closed, so in fact that a demand cannot be
made, or that the acceptor is not to be found at
his place of business, and has left no one there
to pay it, that further inquiry for him is not
necessary, and will be consid.ered as due dili-
gence; and that presentlnir a bill under such
circumstances at the place of business of the
acceptor will be, prima fa^Ae. evidence that it
had been done at a proper time of the day. If
that shall be denied, it must be sSown by evi-
dence.

But whatever may have been the differences
between cases upon this subject, both in En-
gland and the United States, there has always
been a requirement in both countries, and every-
where acknowledged in the United States, which
protects the defendant in this suit from any re-
sponsibility to the plaintiff. The requirement
is this: that the protest was made in this case
in conformity with the practice and law of
Louisiana, where the bill was payable. Bothe-
chOdy. Currie, 1 Ad. & El.. 48; 11 Sm. & M.,
182.

We are aware of the contrariety of opinion
which prevailed for many years in regard
to what should be considered due diligence in
making a presentment of a bill of exchange for
payment to an acceptor of it, under sudn cir-
cumstances as are certified to by the notary in
this case. We have carefully examined most
of them, from the case of Cotton v. BuUer, 2
Strange, 1086, to the year 1856, and we have
adopted those of later years as our best guide,
andas having a better foundation in reason for
the practice and the commercial law of the

{)resent day, and because we think it has most-
y prevailed in the United States for thirty
years. •

. As the view which we have taken of this case
disposes of it in favor of the defendant, we
shall not notice another point made in the ar-
gument in his behalf, which was that the
plaintiff's ri^ht of action, if he ever had one
against the defendant, was excluded by the
Louisiana law of prescription.

We direct the affirmance of the judgment of
the circuit court.

THE UNITED STATBS, Appt,,

©.
JAMES MURPHY;

AND

THE UNITED STATES, Appt.,

EMANUEL PRATT.

(See 8. C, 28 How., 478. 477.)

8uiter*» general tide.

This court has already expressed the opiolon
upon the merits of the general title of Sutter to
California lands in several oases, and this oase i«
decided in accordance therewith.

114 U. S.

1860.

GaBBN V. CCSTABD.

484-4^7

Submitted Ftb.BS, 1860. Beaded Mar, If, 1860.

APPEALS from the District Ck>urt of the
United SUtes for the Northern District of
California.

These cases arose upon petitions filed before
the Board of Land Commissioners in Califor-
nia, by the appellees, for the confirmation to
them of claims to certain tracts of land.

The Board of Land Commissioners entered
decrees confirming the claims in both cases.

The District Court of the United States hav-
ing afilrmed said decrees, on appeal, the United
States took appeals to this court. A further
statement appears in the opinion of the court.

Messrs. J. S. BUbok* Atty-Gen., and E* BL
BtAiitoii, for appellants.

Mr. A* Feleli* for Emanuel Pratt.
Both cases were submitted on the records
without argument in this court.

Mr. Justice Campbell delivered the opinion
of the court :

The appellees in these suits were respectively
confirmed in their claims to land in the valley
of the Sacramento River.

Their applications were made to Michel-
torena in 1844; and upon a reference. Cap-
tain Sutter reported that the land was vacant.
Upon the advice of the secretary, further ac-
tion was deferred until the governor could
visit that portion of the department, and leave
was given to the petitioner to occupy the land
until that time.

In December of that year, the " general
title " to Sutter was issued, and in 1845 or 1846.
■after the deposition of Micheltorena as gov-
ernor, Sutter gave copies of that title to the pe-
titioners. In the testimony of Sutter, in the
case of Pratt^ he says '* that he applied for the
paper a few weeks before the couriers arrived
with it; that duplicates were sent to him, and
that it was designed as a bounty to the soldiers
who had served under him, for their services
in the war."

We have already expressed our opinion upon
the merits of this title in several cases, during
this and the last term; and it remains only to
say that the decrees of the district court must be
reversed, and the causes remanded, unth direc-
tions to the distriet court to dismiss the petition
in each.

THOMAS J. GREEN, Plff. in Eh'.,

WILLLAH CUSTARD.

(See 8. C, 28 How., 484-iB7.)

.8ttiY, w?ten remowMefrom Texas court to (T. 8.

court.

By the 12th section of the Judiciary Act, a dtizen
of MaMSObusetts, when sued by a citizen of Texas,
in a state court of Texas, no matter what the cause
of action may be, provided it demand over ffiOO,
may remove the suit to the U*. 8. District Court.

The exception of the llth section could have no
possible application to the case.

JLrguedFBb. IBS, 1860. Bedded Mar. 12, 1860.

IN ERROR to the District Court of the United
States for the Western District of Texas.
The history of the case and the facts in-

fiee 88 How.

volved sufficiently appear in the opinion of the
court.

Mr. Tr^d. P. StaAton* for plaintiff in
error:

The court below properly acquired jurisdic-
tion of the case as made by the original peti-
tion, which alleged that Custard was a citizen
of Texas, and Oreen, a citizen of Massachusetts.

Act of 1789, ch. 20. sec. 12.

The assignee of a judgment does now stand
upon the same footing as the assignee of a note
or other " chose in action. ''

1 Bouv. L. Diet., 227; BobyshaU v. Oppen-
heimer, 4 Wash. C. C. 482; Bean v. Smith, 2
Mason, C. C.,268, 269.

When the note was set up in the amended
petition, neither Arthur nor Green being a cit-
izen of Texas, the case then became one over
which the United States court had no jurisdic-
tion.

Oibson V. Chew, 16 Pet., 815; Dromgoole v.
F. A M. Bank, 2 How., 241.

The court below was right in dismissing the
original petition and refusing to take jurisdic-
tion of the amendments; but it had no author-
ity to remand the case to the state court; the
onlv alternative was to dismiss it altogether.

The right to have his case tried in the fed-
eral court in a proper case for removal, is an
absolute legal right in the party so removing it.

Ward V. Arredondo, i Paine*s C. C, 410;
Beardsley v. Torres, 4 Wash.. 286; Oibson v.
Johnson, 1 Pet. C. C, 44; Gordon v. Longest,
16 Pet., 97.

It is only causes improperly removed which
will be remanded.

Laws U. S. Courts, 147, which quotes Pol-
lard V. Ihnght, 4 Cranch, 421.

A party, after the removal of the cause, can-
not amend so as to oust the Jurisdiction of the
federal court.

Wright V. Wells, 1 Pet. C. C, 220.

It may not be amiss to refer to the princi-
ples controlling the practice of the courts in
Texas, in cases Uke the present. While they
are very Ubecal in allowing new causes of ac-
tion to be introduced by way of amendment,
they except cases where, in the " mean time,"
between the filing of the orip;inal and amended
petition, the Statute of Limitations had run, or
some other defense valid in law *' had accrued
to the defendant, and which could have been
set up had the original action been discon-
tinued, or a new one commenced."

'* The matter brought into the bill by amend-
ment, will not have relation to the time of filing
the original bill, but the suit will so far be con-
sidered as pending from the time of the amend-
ment."

Henderson v. Kissam, 8 Tex., 68; Pridgin v.
8triekland,S Tex., 427; WUHams v. Bandon,
10 Tex., 74; Kinney v. Lee, 10 Tex., 168.

The subsequent promises alleged were a new
and distinct cause of action.

Coles V. Kelsey, 2 Tex. , 641 ; Grayson v. Tay-
lor, 14 Tex., 676; BeU v. Morris(m, 1 Pet., 860;
Van Keuren v. Parmelee, 2 N. Y., 426.

Mr. G. W. Paschal, for defendant in er-
ror, made no argument in this court.

Mr. JusUee Grier delivered the opinion of
the court:
This case originated in the District Court for

471

495-499

BXTFBRMK COUBT Or THB UHITBD BtATBB.

Dac. Tmttu^

the County of McLennan, in the State of
Texas, where Custard had instituted his suit
against Green by attachment, claiming to re-
cover from him the balance due on a Judgment
entered on a mortgitf e given by Green to one
Arthur, on lands m California. Green ap-
peared, and moved to have his cause removed
to the District Court of the United States, he
being^ a citizen of Massachusetts, and Custard,
a citizen of Texaa — the case coming clearly
within the provisions of the 12th section of the
Judiciary Act of 1789 (1 Stat, at L., 72).

It is probably because this case origin'vted in
a state court, that the court below permitted
the counsel to turn the case into a written
wrangle, instead of requiring them to plead as
lawyers, in a court of common law. We had
occasion already to notice the consequences re-
sulting from the introduction of this hybrid
system of pleading (so called) into the adminis-
tration of justice in Texas. See JRaruUm v.
Toby, 11 How., 617. and BenneU v. Butter-
toorth, 11 How.. 669, with remarks on the same
in MeFaul v. Barruey, 20 How., 625. This
case adds another to the examples of the utter
perplexity and confusion of mind introduced
into the administration of Justice, by practice
under such codes.

Without attempting to trace the devious
course of demurrers, replications, amendments,
&c., &c., which disfigure this record, it may
suffice to say that the j^aintiff, beginning, after
some time, to discover that he could not' re-
cover on his original cause of action, among
other amendments set forth an entirely new
cause of action, to wit: a note given by Green,
payable to *• Arthur or order," for $6,000.
without anv indorsement or assignment by
Arthur to plaintiff, but which Custard alleged
he had obtained " indue course of trade."

After further demurrers, exceptions, &c.,
&c.. and after taking testimony in California,
wholly irrelevant to anv possible issue in the
case, the record exhibits the following Judg-
ment:

'* And now on this day came the parties bv
their attorneys, and the court being now suffi-
ciently advised upon the questions submitted,
is of opinion that the Judgment, the original
c^use of action in this case, is not conclusive —
in fact, is a nullity; but because the parties
plaintiff have amended their petition herein,
setting forth the note the base of said judg-
ment, and as it has become a part of the plead-
ings in this case, and the court bemg of the
opinion that, upon the note, the court is de-
barred from entertaining the case further in
this court, for want of Jurisdiction, it is there-
fore considered bv the court that the cause
ought to be remanded. It is, therefore, ordered
and decreed that this case, with all the papers
belonging to the same, be, and is hereby re-
manded to the District Court of McLennan
Countv for further action."

So far as this Judgment treats the original
cause of action " as a nullity," it could not be
objected to; and perhaps the same remark
might have equally applied to the amended por-
tion. But the conclusion, that the court had
no Jurisdiction to proceed further, and the or-
der to remand the case to the state court to try
the other half of it, is a clear mistake, for
which the Judgment must be reversed.

47«

If Green had been a citizen of Texas* and
Custard had claimed a right, as indorsee of a
citizen of Texas, to bring his suit in the courts
of the United States, becisiuse he (Custard) was
a citizen of another state, the case would have
occurred which is in the proviso to the 1 1th
section of the Act which restrains the Jurisdic-
tion of the court. But the United States court
had Jurisdiction of this case, by virtue of the
12th seotion. It is a right mainly conferred
on Green, a citizen of Massachusetts, when sued
by a citizen of Texas, in a state court of Texas,
no matter what the cause of action may be,
provided it demand over $500. The exception
of the 11th section could have no possible ap-
plication to the case.

Let the judgment be reversed, and the eaee re-
manded far further proeeedinge.

Clted—l Blaok, 816 ; fiO Ind., 66; 80 Am. Bep^ 219^
(66N.H.,875).

JOHN TOKTZ, Administrator of Jobb Do>
LORES Pachsco, Deceased, Appt.,

«.

THE UNITED STATES.

(See 8. C, 28 How., 486-480.)

In SpanUh eiaime, the petition and eoncemian
must be construed together.

Id oases oomlng up by appeal from the District
Courts of Missouri and Florida, which adjudicated
Spanish claims under the Act of 18S4, the petlttoo
to the governor for land and his concession must
be taken as one act. The decree usually proceeded
on the petition, which described the land as re-
spected locality and quantity.

Where the grant refers to the previous steps
(including the petition, asking for only two
leagues), and carries them along with the grant,
the decree of the district court, restricting the
quantity to two square leagues, must be alBrmed.

Argued Mar, i, 1860, Decided Mar, if, ISSO,

APPEAL from the District Court of the Unit
ed States for the Northern District of Cali-
fornia.

This case arose upon a petition filed before
the Board of Lana Conunissioners in Cali-
fornia, by Joee Dolores Pacheoo, for the confir-
mation to him of a claim to a certain tract of
land. The Board of Land Commissioners en-
tered a decree against the validity of the claim.
The district court on appeal reversed this decree,
and entered a decree m favor of the claimant
to the extent of two square leagues, if such

Siantitv be contained within the boundaries
aimeci, or for so much thereof as shall be
therein contained ; whereupon the administrator
of the claimant took an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Mewre, V. E. Howajrd» William C.
Jones and E. L. Goold, for appellant:

In the construction of grants, well ascer-
tained natural or artificial boundaries are to pre
vail over course, distance and quantity.

Leesee of NeUon v. HaU, 1 McLean, 518;
Mayhew v. Norton, 17 Pick., 857; Frost v.
Spaulding, 19 Pick.. 445; MateengiU Y,,Boyle$,
4 Humph., 206; Newman v. Foster, 8 How.,
Miss., 888.

It is universally admitted, that of all the de-

«4 U. 8.

1W9.

YoNTz V. United States.

495-499

scripUons in a deed, quantity is the least re-
liable and the la6t to be resorted to.

LUOefiM V. UtOefiM, 28 Me., 180.

"In the construction of ffrants, it is a well
settled rule that course, and distance, and quan-
tity must yield to natural or artificial monu-
ments or objects; that where these monuments
or objects are known certain and unquestion-
able, and neither course, distance nor quantity
correspond with them,, the monuments, na^
ural or artificial. Shall prevail, and courses
must be varied and distance lengthened or
abridged, in order to harmonize them."

SuTffet V. lAttU, 6 Smedes & M., 882; Camp-
beU V. Clark, 8 Mo., 568; Hough v. Horn, 4
Dev. & B., 281 ; Hare v. Harris, 14 Ohio, 586;
I^mam v. Wead, 6 Mass., 192; Preston y. Bow-
tnar, 2 Bibb, 496; Fbloery. Mitchell, 8 Pick.,
401 ; Hotoe v. Bom, 2 Mass., 882.

It is, at least, but a mere question of inten-
tion. Certainly Pacheoo intended to get that
place, and the governor intended to bestow it
upon him; for the sovemor knew ^1 that it
was important for him to know touching the
quantity, viz.: that it was not over eleven
leagues, and he, therefore, said nothing as to
c^uantity when he made the grant. The inten-
tion of Pacheco is abundantly made manifest
hj the fact that for thirty years he has occu-
pied and cultivated the whole of it — acts of in
terpvetation both prior and subsequent to the
datey of the grant.

''Where the intention is doubtful, the man-
ner in which the contract has been executed by
both or one of the parties, furnishes a rule of
interpretation."

MiOikin v. Minnis, 12 La., 546; WelU v.
Oompton, 8 llob., 171; Farra/r v. BotUy, 2 La.
Ann., 475; UAquin v. Barbour, 4 La. Ann.,
441.

Messrs. J. 8. Black, Atty-Gen., and E.
M« Stenton, for appellees:

Mr. Justice Catron delivered the opinion of
the court:

Yontz prosecutes this appeal as administra-
tor of Jose Dolores Pacheco. who died pend-
ingthe suit below.

There is no controversy in relation to the va-
lidity of the grant, but only as respects the
quantity confirmed by the district court, being
two square leagues. The claimant insists that
he is entitled to a survey and patent from the
United States corresponding to the out-bound-
aries embraced in his diseno, and the descrip-
tion given of the rancho in the governor's
Sunt, which recites: "Whereas citizen Jose
olores Pacheco has sought to obtain for his
personal benefit and that of his family the place
lying between the * creek or ravine ' of La Tasa-
lera and the place of ' San Ramon ' bounded
by the house of the same place of San Ramon
down to the 'dead trees' (palos secos), and
from this point, taking by the ' Tular,' to the
*hi^h hiir (Loma Aita) along the creek or
ravine of said Tasajera, and alone the ranxe
of hills (siprra) and the land of citizen Bartolo
Pacheco." After which the conditional clause
follows, to wit: ''The tract of which grant
is made is of the extent mentioned in the plan,
which goes with the espediente, with its re-
spective boundaries. The officer giving the
possession shall cause it to be measured accord-
flee 28 How.

ing to the ordinance to mark boundaries; the
soTpltts to remain for the nation, for its uses. "

Pacheco petitioned Qovemor Figueroa for
two leagues of land, in June. 1884. lying within
the boundaries set forth in the foregoing de-
scription and plan. He then failed to have hU
petition favorably considered by the governor,
because opposition was made by the mission of
San Jose.

On the 80th of November, 1887, Pacheco
a^n petitioned (Governor Alvarado to grant
him the same land; he says: " At this time I
confine the application for two leagues, more
or less, according to the boundanes of said
mission of Ban Jose to the south: the plan of
which I inclose herein a^in." The governor
referred this second petition to the Council of
San Jose, and they reported the land to be va- *
cant, and that it coula be adjudicated for col-
onization. On this report the governor made
the grant. It was confirmed by the Depart-
mental Assembly, May 12th, 1840, with direc-
tions, ** that the espemente be returned to his
excellency the governor, for the proper ends.''
No final document in consummation of a per-
fect title issued to the grantee; nor was Judi-
cial possession ^ven of the land, and in this un-
surveyed condition the claim stood when the
United States acquired the country.

If we are bound to take the last paper issued
by the governor as concluding all reference to
preceding steps in the progress of obtaining a
complete title, then we find the grant inconsis-
tent on its face. The argument urged on our
consideration is, that there are specific bound-
aries given as to the extent of the land ^ranted,
so that it is clearly a grant of all tne land
within these prescribed limits. In contra-
vention of this assumption, the clause above
recited directs that the officer giving Judicial
possession shall cause the land to be measured,
according to the ordinance, and to mark bound-
aries; " the surplus to remain for the nation,
for its uses.." If it be true that the boundaries
are conclusively defined in the grant, then no
surplus could be thrown off by the survey.
But if two leagues are to be surveyed within
the larger limits, then the clause is consistent.

In the next place, it is insisted that the clause
is a condition, usual in all these grants, and
amounts to little more than a mere formality.
Ascribing to the clause usually declaring quan-
tity only this degree of credence, then we are
thrown on the recitals of the grant, and bound
to look behind it, to the incipient steps, and to
other title papers referred to, and from all
these to ascertain how much land was intended
to be conceded.

The claimants come before us, presenting an
equity; their title not being completed, because
the land has never been surveyed, and severed
from the public domain. U. S. v. Hanson, 16
Pet., 200; Bosa Paefieco*s case, now decided.

We are called on to adjudge what the equities
of claimants are; and to do this, it is proper
'* to look at all the several parts and ceremonies
necessary to complete the title, and to take
them together as one act." Landesy. Brant,
10 How., 872.

This court has uniformly held, in cases com-
ing up by appeal from the District Courts of
Missouri and Florida, which adjudicated Span-
ish claims under the Act of 1824, that the pe-

47S

409.000; 14-28

BUFBBMB COUItT OF THE UHITttD STATBS.

Dbc Tbhx,

tition to the governor for land and his conces-
sion must be taken as one act, and the decree
usually proceeded on the petition, which de*
scribea the land as respected locality and quan-
tity. This was necessarily so, as the concession
was often a mere grant of the request, without
other description than the petition contained.
And this is manifestly one of the rules of de-
cision governing the tribunals in California.
Srescribed by the 11th section of the Act of
[arch 8d, I85t (0 Stat, at L., 681). In this
case the grant refers to the previous steps (in-
cluding the petition, asking for only two
leagues), and carries them along with the grant.
From all the Acts, taken together, it is mani-
fest that the decree of the district court, re-
^ stricting the quantity to two square leagues,
must be affirmed, if so much land is found
within the out-boundaries of the tract of
country set forUi in the grant and diaeno; oth-
erwise, the less quantity.

CIted-l Wall., 816.

THE UNITED STATES, Appt,

«.

THE WIDOW AND HEIRS of JoeoE E. Bbr-
RBTBBA, Deceased.

(See 8. C, 23 How., 480-500.)

Thu cowrt mil not direct ob to location of grant
btfore the court below acts upon it.

Where the genulneDess of this Arrant and the ful-
fillment of the conditions are fully estabUsbed, and
the Tall<!Ut7 on the claim is unquestionable, and
where no question was decided In the court below
upon the location of the lines of the tract, it would
be irregular for this court to aivume that the action
of that court will not conform to the established
rules on the subject.

As the decree of the district court has not been
called In question by the appellees, should any dif-
ficulty arise in the location of the grant, it will be
competent for the appellees to Invoke the aid of
that court.

Argued Feb, 28, ISeO. Decided Mar. if, 1860.

APPEAL from the District Court of the Unit-
ed States for the Northern District of
California.

The history of the case and a statement of
the facts appear in the opinion of the court.

Meeare. J. 8. Blaek* Atty-CJen., and E. M.
Stanton* for appellants.

Mr. E. L* Ooold* for appellees.

Mr. Juetice Campbell delivered the opinion
of the court:

The appellees were confirmed in their claim
to a parcel of land in the County of Santa
Clara, known by the name of San Vicente, and
heing a part of the Cafiada de los CapitanciUos,
cont&ning one square league, and adjoining
the lands of Justo Larios.

They are the widow and heirs at law of Jose
E. Berrevesa, who became possessed of the
land in 1884, under the authority of the Gover-
nor, Figueroa, and occupied it, with his fami-
ly, until 1842. In that year he presented a pe-
tition to the governor, representing these facts,
and complained that his neighbor Larios had
disturbed his enjoyment and repose, and desired

474

that there might be granted to him two titioe.
from the house of Luioe to the Matadera. with
all the hills that belong to the Canada. Heaays
that he served the country in the army for twen-
ty-four years and upwards, without receiving
pay, and that he had with him eleven dilldren.

A reference was nmde of the petition to the
justice of the pueblo, who called Larioe before
him, and an agreement was then made between
the parties in reference to the division line.

This report was returned to the governor,
who directed that a title should issue to the ap-
plicant, and that the eapedlente be remitted to
the Departmental Junta, for its approval. The
decree and titulo describe a parcel of land in-
cluded within natural boundaries; but in the
conditions, it is confined to a single league in
quantity.

Subsequently to this, Berreyesa complained
to the ^vemor of the limitation, insisting that
his petition had been for two leagues, and that
he had returned the grant, to have it corrected.
The governor directed the proper inquiries, and
the result was to concede the prayer of the pe-
titioner; but for some reason Uie grant did not
issue.

The Board of Commissioners confirmed the
claim of the petitioners for one square league;
and this decree was confirmed by the district
court on appeal, and it ordered the land to be
located, according to the description and with-
in the boundaries set out in the original grant,
and delineated in the map contains in Uie m-
pediente, to both of which reference is made for
a more particular description. The genuineness
of this grant and the fulfillment of the condi-
tions are fully established, and the validity of
the claim is unquestionable.

The appellees have requested the court to
give instructions relative to the location and
survey of this grant,similar to those found in the
case of The United States v. Fbaaat,20 How., 418.
But no question was decided in the court below
upon the location of the lines of the tract, and it
would be irreffular for this court to assume that
the action of Uiat court will not conform to the
established rules on the subject. The decree
of the district court has not been called in ques-
tion by the appellees; and should any difficulty
arise in the location of the grant, it will be com-
petent for the appellees to invoke the aid of
that court.

Decree affirmed.

Cited— 8 Wall., 781.

ANDREW LAWRENCE, Appt.,

HIRAM A. TUCKER.

(See 8. C, 28 How., 14-88.)

Mortgage as security for future advances — new
partners — variance in stating indebtedness.

Mortgage to secure future advances by firm, can
stand 88 security for advances made after the ad-
mission of neir partners into tbe firm.

A mortgage bona Jide made, may be for future

NOTB.— lfort(jKS00ii fiyr future advances* 'their va^
UdUy and prUrrUy.

Mortgages may be given as well to secure future
advances or contingent debts as those wfalok al-

«4 V. S.

1850.

LA.WRBNCB V. TUCKSR.

14-28

advanoes by the mortflraflrce, as well as for present
-debts and liabilities.

If, upon Investliratlon, the real transaction shall
appear to be fair, the variance between the alleged
indebtedaess and the advances which were to be
made afterwards, craves no additional equity.

Arffued Feb, £9, 1860, Decided Mwr. 19, 1860,

APPEAL from the Circuit Court of the Unit-
ed States for the Northern District of
Illinois. 0

The bill in this rase was filed m the court
below, by the appellant, to redeem the furni-
ture of a hotel in the City of Chicago, upon
which the appellee had a mortgage.

The court entered a decree allowing redemp-
tion upon payment of $9,680.66.

The complainant, insisting that nothing was
due upon the mortgage, or, if anything, a much
less sum, took an appeal to this court.

A further statement of the case appears in the
opinion of the court.

Mr, B. R. Ciirii0» for appellant:

The question is, as against the complainant,
a bona fide purchaser for a valuable considera-
tion, with notice only of what appears of rec-
ord, for what amount does the recorded mort-
^^age to Tucker stand as security?

I. H. A. Tucker Individually cannot set up
this note against a subsequent incumbrance, as
intended to cover future advances.

It is true that a mortgage may be taken to
secure future advances; and perhaps, where no
fraud is intended, a note for a sum of money
may be given in consideration of such expected
advances. But this mortgage In effect asserts
that the note is not to stand for future advances.
For it makes a specific and distinct provision
for future advances, and expressly and clearlv
distinguishes between them and the note, whicn
is in so many words declared not to have been
given for future advances, but for that amount
of money already due.

If H. A. Tucker individually had actually
made advances subsequent to the mortgage, he
could not have a lien oy virtue of it, to secure
advances by himself and his firm beyond the

amount of $6,000, without being allowed to
contradict the express and clear terms of the
deed, which limits the future advances to that
sum.

But he has advanced nothing. And the ques-
tion is whether a mortgage to one partner, pur-
porting to secure a debt due to him individual-
ly, can, as against a bona fide purchaser, with-
out notice of any parol understanding between
mortgagor and mortgagee, be set up as a secu-
rity lor advances maae by the firm, of which he
is a member.

II. The mortgage expressly declaring that it
was to stand as security for future advances
only to the extent of $6,000, It cannot stand as
security for any greater amount of such ad-
vances as against a junior incumbrancer, who
has no notice of any parol agreement between
the mortgagor and mortgagee, that it shall stand
as security for a greater sum.

III. Upon the face of the mortgage and the
whole evidence, it Is not made out with the
requisite certainty, that there was an original
agreement between the mortgagors and mort-
gagees that the $5,5(i0 not« should stand as a
continuing security for all future advances; and
when advances to that amount had been made
and repaid, that part of the securitv, if ever
applicable to advances, was extinguisned.

TrueeoU v. &7ig, 6 N. Y., 147.

IV. This mortgage to H. A. Tucker, to secure
future advances by the firm of H. A. Tucker ft
Co., cannot stand as security for advances made
after the admission of new partners into the
fli m. A Junior incumbrancer is affected only
by the precise terms of the mortgage itself,
which provides only for advances to be made
by the then firm of H. A. Tucker & Co. Either
the admission or retirement of a partner puts an
end to the right to make further advances upon
the credit of the securitv as against the junior
incumbrancer, and if the amount due at the
time of such change of the firm is afterwards
balanced by payments on account, nothing re-
mains due on the mortgage.

ready exist and are certain and due. Conrad v.
Atlantic Ins. Co.. 28 U. S. a Pet.), 387, 447; Leeds v.
Cameron, 8 Sumn., 448 ; tJ. 8. v. Hooe, 7 IT. S. (8
Cranch), 78; Uubl>ard v. Savafire, 8 Conn., 815;
Walker v. Snediker, Hoff. Ch., 145 ; Com. B'k v.
Cunninirham, 24 Pick., 270; Lyle v. Duoomb, 5
Bino., 585 ; Monell v. Smith, 5 Coir., 441 ; Lanslnr v.
Woodwortb, 1 Sandf. Ch., 43: Barry v. March's Ex.
Co., 1 Sandf. Ch., 280, 814 ; BrlnckcrhotT v. Marvin,
6 Johns. Ch., 820; B'k of Utioa v. Finch. 8 Barb.
Ch., 287; Livingston v. Mclnlay. 16 Johns., 166;
Truscott V. King, 6 N. Y., 160; Robinson v. Williams,
SSB N. T., 888 ; Shirras v. Calg, 11 U. S. (7 Cranch) 84;
Oartwr v. Henry, 8 Watts, 57 ; Irwin v. Tabb, 17 8. &
B., 423 ; Gordon v. Preston, 1 Watts, 385 ; Ackerman
V. Hunsicker, 85 N. Y., 43.

If no sum is mentioned, hut the purpose of the
mortgage is stated to be to secure the payment of
all future advances, or of all liabilities of a certain
kind to be thereafter incurred, this will t>e suffi-
cient, and If the instrument Is sufficiently certain
to be valid against the mortgagor it will be equally
valid against all persons claiming under him.
Youngs V. Wilson, tl N. Y., 851 ; Robinson v. Will-
iams, 22 N. Y., 880: Miller v. Lockwood, 82 N. Y.,
290 ; Monell v. Smith, 5 Cow., 441 ; Kramer v. Trust-
ees of Farm. B'k. 16 Ohio. 253; MerHlls v. Swift.
18 Conn., 266; Loews v. DeForest, 20 Conn., 442:
Ketchum v. Jauncey, 28 Cenn., 127.

Where the mortgage is In form an absolute deed,
and the defeasanod is in parol, it is competent as'
between the parties that the transfer should be
allowed tostand as security for further advances,
even though the terms of redemption contem-
plated when conveyance was made did not provide
for them : but where the mortgage recites the debt

litoe 28 How.

which it is made to secure, there is no implication
of any intention to secure any further debt. Jar-
vis V. Rogers, 15 Mass., 880; James v. Johnson, 6
Johns. Ch., 429 ; Odell v. Montross, 6 Hun, 115 ;
Stoddard v. Hart, 28 N. Y., 566.

An equitable mortgage by deposit of deeds may
be extended beyond the original purpose by im-
plication or parol. Kensington, ex pa/rU, 2 Ves. k
B., 79; 2 Rose, 138.

A mortgage to secure future advances will not
operate as a securitv for costs subsequently in-
curred. Shaw V. Neale, 6 H. L. Cas.. 581 ; 4 Jur. N.
S.,656;27L.J. Ch.,444.

A further sum agreed to be secured by pledge
of property equitably mortgaged, is also tanta-
mount to a further equitable mortgage; and pos-
session of the deeds by the first mortgagee is a
possession by the second. Factor v. Phllpott, 12
Priw, 197.

Where there Is a mortgage for present and future
advances and a subsequent mortigage of the same
description, further advances made by the prior
mortgagee, with notice of the subsequent mort-
gage, have no priority over antecedent advances
made by the subsequent mortgagee. Rolt v. Hop-
kinson, 8 DeG. & J., 177 ; 4 Jur. N. S., 1119; 28 L. J.
Ch., 41.

Where it Is part of the contract under which the
mortgage is made, that the advances shall be made
at certain fixed periods, and that the mortgagor
Shan then accept them and pay interest upon
them, the rights of the parties become fixed
at the date of delivery ot the security, and the
mortgage will be a protection against sulwequent
encumbrancers whose rights are acquined before
the advances were actuafly made, except against

475

14-28

Stjfbemb Court of thb United Statbb.

DVC. TXRM,

Bank of Scotland v. ChruUe, 8 Clark & F.,
214; ^fwn y. HauaUm, 4 Bligh, 19. S., 515;
PemJbert&n, v. Oakea, 4 Russ., 154; Oremer v.
Higginson, 1 Mas., 328; Stmaon y. Cooke, 1
Bing., 441, 452.

Without an agreement by the mortgagors to
extend the operation of the security to the new
firm, which binds only the debtor and his
representatiyes, there is belieyed to be no case
which holds that the right to make adyancee
on the credit of the security continues after
a change in the members of the firm.

&ee Ex parte Oakes, 2 Mont., D. & D., 284;
Ex parte Marsh, 2 Rose. 289.

If there was such an agreement in this case,
the complainant had no notice of it and is not
bound by it.

The firm of H. A. Tucker & Co. was changed
by the admission of new partners, Jan. 1, 1857.
and all advances made preyious to that date
haye been repaid.

Messrs, S. F. Vinton and Thos. Hoyne*

for appellee:

1 . What was the mortgage to Tucker intended
to secure?

We claim that it was intended to secure any
indebtedness that might arise in the manner
specified therein, to an amount not exceeding
at any one time the sum of $1 1 ,500 ; and that the
actual knowledge of defendant's claim by the
subsequent incumbrancers, and by Lawrence,
the purchaser, made them chargeable with what
was in fact due on the mortgage not exceeding
that sum, as the only condition on which they
or any of them would be allowed to redeem the

Sroperty. In other words, they can only re-
ecm subject to the satisfaction of Tucker's
prior equity, whateyer that may be.

2. The cases which afQrm the doctrine that
a mortgage may be ffiyen to secure future
adyances or future liabilities, are yery numer-
ous.

Shirras y. Gaig, 7 Cranch, 84; Leeds y. Cam-
eron, 8 Sumn., 492; Lyle y. Dueomb, 5 Binn.,

590; GoUins y. CarlisU, 18 111., 256; and some
of the leading American cases on this head.

In Leeds y. Cameron, Judge Story asid:
" Nothing can be more clear, both upon prin-
ciple and authority, than that at the common
law a mortgage bona Ms made, may be for fut-
ure advances and liabilities for the mortga^r
by the mortgagee, as well as for present debts
and liabilitjes." He cites 8 Cranch. 73; 1 Pet..
448.

During the continuance of the dealing, the
mortgage and the note for $5,500 were treated
as, and understood by the parties to be, a con-
tinuing security for whateyer adyances might
be maae during the two years the contmct was
to last. And neither subsequent incumbrancere
nor purchasers could suffer any prejudice, if
due inquiry were made, from a mortgage the
record of which was notice to all persons of an
incumbrance to the extent of $11,500. *Phey
were interested in knowing what was in fact
due when the subsequent incumbrance was
taken and when the subsequent purchase was
made, and they were interested no further.

The note of $5,500 states on its face that it
was given for an actual loan of money, and
consequently the mortgage to the extent of tliat
note appears to haye been giyen to secure a debt
then due, and this presents the question.

As between the parties to the mort^page, there
can be no question but that parol eyideiuce can
be giyen to show that the note and mortgage
were taken as collateral security for adyanci'S
thereafter to be made, and that* in fact,8uch ad-
yances were subsequently made on the faith of
that security. It is one of the most ancient

grinciples of a court of equity, that if a deed
e absolute on its face, it may be proyed by
parol in a court of equity, that it was a condi-
tional conyeyance giyen to secure a loan of
money.

Whether such proof will be let in against
third persons, will depend upon the fact wheth-
er the misstatement or misrepresentation in the
deed was made for a dishonest purpose, or

Iyurohasers for value without notloe from the pub-
ic records or otherwise. In such a case, the debt
is praseat, and the security is as valid as If the ad-
vances were made at its date. Crane v. Deminflr^ 7
ConD.« 887: Boswell v. Goodwin, 31 Conn., 74;
Uowan V. Sharpe Rifle Mfir. Co., 28 Oonn., 82B ; Qrlf-
fln V. Burnett, 4 Bdw., 037.

Where the mortgairee is not oblisated to make
the advances, he holds a lien upon tne land, at any
ffi ven time, for the actual amount of his adyances at
that time,and if with knowledge of a subsequent lien
he makes further advances, his rights as to the new
advances would be inferior lo the subsequent Hen.
Robinson v. Williams, 22 N. Y., 380; Blaseli v. Kel-
logg, 00 Barb.. 617; Brinckerhoff v. Marvin, 6
Johns. Ch., 320; Craig v. Tappln, 2 Sand. Ch.,90;
Lansing v. Woodworth, 1 Sand. Ch., 46; Kramer v.
Trustees Farm. B'k, 15 Ohio, 263 ; Merrills v. Swift,
18 Conn., 266; Lewis v. De Forest, 20 Conn., 442;
Ketohum v. Jauncey, 23 Conn., 127 ; Carpenter v.
Blote, 1 B. D. Smith, 491 ; B*kof Montgomery Co.,
Appeal. 36 Penn. St., 172; Bell v. Flemin«r, 1 Beas-
ley (N. J.), 1 ; Frye v. B'k of III., 11 111., 367; Ketch-
am V. Wood, 22 Hun, 64. .

As to what is notice, the decisions vary. See Mc-
Danlels v. Colvln, 16 Vt., 800; Truscott v. King, 6
Barb., 346, rev'd,6N. Y., 147; Spader v. Lawler, 17
Ohio, 371 ; Ten Hoven v. Kerns, 2 Penn. St., 96 ;
Parmentier v. Gillespie, 9 Penn. St., 86; Boswell v.
Goodwin, 31 Conn., 74.

If the mortgage be nominally for a certain sum,
it cannot be shown to have been intended as a lien
for agreater sum, and moneys not mentioned in the
mortgage cannot be covered by it to the prejudioe
of subsequent liens. Truscott v. King,' 6 N. Y., 147;
St. Andrews* Ch., v. Tompkins. 7 Johns. Ch., 14 ;

47(t

B'k of Utlca V. Finch, 3 Barb. Ch., 2B8 ; Walker v.
Snedlker. Hoff. Ch., 146; Pettibone v. Griswold, 4
Conn., 158; Stoughton v. Pasco, 5 Conn., 442; Shep-
ard V. Shepard, 6 Conn., 87 : Hubbard v« Savage, 6
Conn., 215; Hart V. Cbalker, 14 Conn., 77 : Garber v.
Henry, 6 watts., 57 ; Townsend v. Empire Stone
Dressing Co., 6 Duer, 208.

A mortgage duly recorded, given to secure fut-
ure indorsements or advances, has a preference
over subsequent Judgments against the mortgagor,
as well as to advances or indorsements upon the
faith thereof subsequent to the rendition of Judg-
ment, without notice thereof, as to those previ-
ously made ; and this without regard to the ques-
tion whether the indorsements or advances were
optional or obligatory. The docketing of a Judg-
ment is not, under the registry laws of N. Y., con-
structive notice to the mortgagee of its existence.
Record of such a mortgage is notice to subsequent
Incumbrancers. Ackerman v. Hunsloker, 86 M. T.,
43; 8. C, 39 Am. Rep., 621 ; 8. C, 12 Week I>ig.,S86;
S. C, 21 Hun, 53, rev'd. A mortgage is only a prior
lien, as against an intervening Judgment, to the
extent of the advances at the time of entering the
Judgment. Wilder v. Butterfleld, 60 How. Pr., 386.

National bank has no power under the Act of
Congreas to take a mortgage to secure future in-
debtedness. Crocker v. Whitney, 71 N. Y., 161.

A mortgage intended as a security for a present
and continuing indebtedness is valid between the

Sirtles ; and if free from fraud, as to orediton also,
rown V. Keefer, 71 N. Y., 610.
A mortgage to secure payment for services to be
rendered in future by the mortgagee and a third

gerson, is valid as against intervening inoum-
ranees. Hall v. Crouse, 18 Hun, 567.

64 U.S.

1859.

L\WBEMCB y. TnCKEB.

14-28

whether such third person has been deceived
or injured by it.

Shtrviu V. Caig. 2 Pot. Oond.. 410.

The misrepresentation in Tucker^s mortgage,
if it may be called such, has neither injured nor
deceived Uie 8ul»equent incumbrancers nor the
purchasers under them, nor was it made for an
unfair or dishonest purpose. If the complain-
ant could prove any of these facts, he had the
right and an opportunity to do it. And thev
are not to be presumed in the absence of proof.

Jttdge Curtis in his brief has raised the ques-
tion, whether the mortgage can stand as a se-
curity for advances made by the firm of H. A.
Tucker & Go. , after the admission of new part-
ners into that concern.

The complainant'comes into court askina; for
equity, and praying that the defendant's legal
iitle to the property mortgaged may be taken
from him by a decree of the court. That being
his attitude, he will not be likely to meet with
much encouragement in setting up technicalities
to deprive the defendant of his honest rights.

Lyle V. Ducamb, 5 Binn. ,590, was a case where
defendant, Ducomb, gave a bond for $18,000
conditioned to pay $9,000, with a mortgage on
real estate. By an indorsement on the mort-
gage it was stated that it was made to secure
the plaintiff for notes drawn and .to be drawn
by him, and by Lyle and Newman, for Du-
comb'9 accommodation.

Objection was made that a mortgage intended
as an indemnity against acts to be performed
at a subsequent time, ought not to have any ef-
fect against third persons.

Tilghman, Jwttiee, said: "This point was
very properly abandoned. There cannot be a
more fair bona fide and valuable consideration
than the drawing and indorsing of notes at a
future period, for the benefit and at the request
of the mortgagor, and nothing is more reason-
able than the providing a sufficient indemnity
before hand."

In that case, six months after the making
of the mortgage, and after a builder's lien had
attached to the property, the mortgagor and
mort^a^ee entered into an agreement that a
description of notes not before embraced by the
mortgage, and made by a different drawer than
the drawers named in the mortgage, should be
embraced therein. Held, that the parties had
a right to make such agreement, as between
themselves, and that it was also good as to
third parties who were intervening incum-
brancers, if the amount of the mortgage incum-
brance were not thereby increased oeyond the
amount which the mortgage was intended to
secure.

5 Binn. , 589.

This doctrine would seem to dispose of the
objection we are now considering. In the case
of The Commercial Bardc v. Gunningham, 24
Pick., 270, the mortgagors, who were a firm
under the name of Edgarton, Whitcomb& Co.,
made a mortgage to secure their existing debt,
and also future debts they might owe mort-
gagees, and afterwards mortgagors admitted a
new partner into the firm, which assumed a
new name. Held, that notes given by the new
firm were covered and secured by the mortgage.

Upon no known principle of equity, can the
defendant be deprived of his legaf and equi-
table lien upon the property mortgaged to him.

See 23 How.

until he is paid the full amount equitably
covered by the morigage, and due to him and
to the other parties named In the deed.

Mr. Justice Wayne delivered the opinion
of the court:

We have been unable to find anything in this
record to authorize us to change or modify the
decree made by the circuit court in this case.

Andrew Lawrence filed his bill in that court,
for the northern district of Illinois, against Hi-
ram A. Tucker, to redeem jthe furniture of a
hotel in the City of Chicago, called the Briggs
House, upon which Tucker has a mortgage.

On the 1st of September, 1856, John jT Floyd
and George H. French, who then were the
keepers of that hotel, wishing to have a cur-
rent business credit with Tucker and the firm
of H. A. Tucker & Co., and the bank named
in the mortgage, executed, under the firm of
Floyd & French to Hiram A. Tucker, a mort-
gage of the furniture of the hotel, to secure a
note of Flovd & French, made to Tucker, for
$5,500, and such advances of money as there
had been or might be made within two yeai*s,
bv H. A. Tucker, H. A. Tucker & Co.. or the
Exchange Bank of H. A. Tucker & Co., not to
exceed in all an tndebtment of $6,000 in addi-
tion to the sum for which their note was given.
The note was dated on the 1st of September,
the day on which the mortga^ was made, pay-
able one day after date, wiUi interest at the rate
of ten per cent, per annum. The note was to
be held by Tucker, as a collaterial security for
such advances as have just been stated, and
the amount of the note .also. Under his ar-
rangement, successive advances were made to
Floyd & French, on their checks, or by discount
of their notes, until sometime in October, 1857.
when they ceased.

Tucker, during this time, continued to hold
the note for $5,500. He also held several other .
promissory notes of Floyd <& French, as ap-
pears by the exhibits, C, D, £, G, H, annexed
to TucKer's answer to the complainant's bill.
All of these notes, except that for $2,000, are
drawn payable to H. A. Tucker; all of them
are prior in dates to other mortgages upon the
same furniture, except the note just mentioned
for $2,000, and that was a renewal of a note
for a loan made on the 26th September, 1857,
prior to the date of the mortgages made to
Briggs & Atkyns. The mortgage to Briggs
was made on the 19th November, 1857, by
Floyd & French, and one Ames, who had been
taken into their firm. It was ^iven to secure
debts due to Briggs, and liabilities he had as-
sumed for them, and also for such advances of
money as Briggs might thereafter make to
them, with a power of sale on default. When
Briggs took this mortgage, he knew that Tuck-
er had a prior mortgage on the same furniture,
and he states in his evidence that he knew ad-
vances of money had been made upon it by
Tucker, for which he knew it stood as a secu-

ity.

On the 12th of January, 1858, Floyd &
French and Ames made a third mortgage of the
same property to Henrjt Atkyns, as trustee,
with a like power of sale, to secure debts men-
tioned in it. Both of these mortgages refer to
Tucker's mortgage as an existing incumbrance
upon the furniture, &c., &c. Briggs and

477

U-28

SUriiBMB trOUKT or TUK UKITJftD tiTTATKni,

Djbg. TmBM,

Atkyns had then, of course, nolice of Tucker's
mortgage.

Atkyns sold the farnitrue under his power
of sale on the 27th February, 1858; Briggs sold
under bis power of sale on the 12th March fol-
lowing. Lawrence became the purchaser at
both sales. Briggs sold to him expressly sub-
ject to the mortgage of French & Floyd to H.
A. Tucker; and Lawrence admits, by a stipula-
tion in the record, that when he purchased the
property under the mortgaj^es, he had notice
that either the def^dant Hiram A. Tucker or
H. A. Tucker 4fe'Ck>. held the notes i^ainst
Floyd <& French, as thev are set forth in the
defendant's answer, and that the amount was
claimed to be due upon them, as it is set out in
the answer.

Upon referring to that answer, and its ex-
hibits, C, D, £, G, H, we find that the only
securities now claimed to be due are, with one
exception, notes of hand given by Floyd &
French, payable to the order of H. A. Tucker
alone, precisely within the mortgage, and that
the note of December 18th, L857, payable to H.
A. Tucker & Ck>., for the sum of $2,000, pay-
able at the counting-house of H. A. Tucker &
Co., in Chicago, was for an actual loan of
money, and that it was the renewal of a former
note for the same sum, dated the 26th Septem-
ber, 1867.

We have, then, the admission of the com-
plainant, that when he purchased under the
mortgages of Briggs & Atykins, he knew the
particular items constituting the outstanding
unpaid debt of Floyd & French to Hiram A.
Tucker and H. A. Tucker & Co. for advances.
One of these notes, dated the 14th October,
18A7, was for $1,000, exhibit C; another, dateil
22d October, 1857, exhibit D, was for $8,000;
the third, exhibit E, dated July 11, was for
$450; exhibit Q, of the same date, was a note
for the sum of $5,000; and exhibit H. dated the
18th December, 1857, was for $2,000.

Floyd, who did the financial business of the
firm of Floyd & French, testifies that the notes

iust mentioned were given for advances: but
le claims a credit of $1,500 on the note, ex-
hibit D; and states that the note for $450, ex-
hibit S,had not been given for money advanced,
but that it and another note for the same amount
were given for the interest for one year on the
note for $5,500. Floyd also stat^ that the note
marked exhibit I, for $5,500, was signed by
himself when he signed the mortgage, and that
he personally made the negotiation with H. A.
Tucker <& Co.

It is further stated by him, that the aggregate
amount of all the advances which had been
made by the defendant to his firm upon the faith
of the note and the mortgage, since the first of
September. 1856, amounted to " from fifty to a
hundred thousand dollars," and thai the sum
now remaining due was "somewhere in the
vicinity of $10.000. " He verifies the notes named
in the exhibits, C, D. £. G, H. with the origi-
nals; confirms the statement in exhibit A of the
discounts which his firm had received under
the note and mortgage; and adds, that when
the note and mor^ge were given, his firm then
owed to H. A. Tucker & €k). $2,500, which
was paid on the 7th September, 1856; and re-
peats in his cross-examination what he had said
in his examination in chief, concerning the

478

amount of the discounts and cash received from
H. A. Tucker & Co. under the note and mort-
gage.

It must have been upon the testimony of this
witness that the court below gave its cfecree.

But we have not referred to it with the view
of testing the correctness of the sum allowed to
the defendant, as the condition upon which the
complainant might redeem the mortgage —
though, having made the computation, we find
it to be correct, with a small mistake. Ourob-
ject has been to show that the parties to the
original transaction understood it alike, and
acted up6n it accordingly; that there never was
a difference betw^n them, as to the characf«r
of the mortgage and its purpose; and that it was
intended to be a security for and a lien upon
the property mortgaged for future advances, to
the extent of the sum provided for in it. So,
also, Floyd & French represented it to be in
their transactions with others, when they found
it convenient to their business to give other
mortgages upon the same property for the se-
curity of other creditors. -

We consider it to be a mortgage for futi^re
advances, that the^r were subsequently made in
conformity with its provisions, and that the
proofs that they were so, were rightly received by
the court below to substantiate them. There is
neither indirectness nor uncertainty in the terms
used in the mortgage, to make it doubtful that it
was intended to cover the note for $5,500 and
for future advances. It is stated in terms that
it was intended for that purpose. The note,
though expressed to be an existing indebtedness
at the date of the mortgage, secured to be pai^
by a promissory note, payable one day after
date, 18 associated with line advances to be made
to Floyd & French to the amount of $6,000;
but it is proved that the note and mortgage were
in fact taken as a security for advances there-
after to be made, and that it was done without
any other purpose than to get a credit extended
to them of $11,500. injstead of advances only to
the amount of $6,000. It is objected that the
difference makes the transaction subsidiary.

An objection of this kind was made in the
case of wiirra» v. Caig, 7 Cranch, 84; but this
court then said, it is true the real transaction
does not appear on the face of the mortgage;
the deed purports to have been a debt of £80,-
000, due to all of the mortgagees. It was really
intended to have different sums due at the time
to particular mortgagees, advances afterwards
to be made, and liabilities to be encountered to
an uncertain amount. After remarking that
such misrepresentations of a transaction are lia-
ble to suspicion, Chirf Jtutitie Marshall adds:
** But if, upon investi^ition, the real transaction
shay appear to be fair, thoush somewhat vari-
ant from that which is described, it would seem
to be unjust and unprecedented to deprive the
person claiming under the deed real equitable
rights, unless it oe in favor of a person who has
been in fact injured and deceived by the mis-
representation." In this case, the complainant
has not been deceived, and the variance between
the alleged indebtedness and that advances were
to be made afterwards gives to his suit no ad
ditional force or equity.

Ko proof was given by the complainant that
he had been injured or deceived by it into mak-
ing his purchase under the mortgages of Briggs

64 0. S.

1859.

TjtBBB V. HuMTINeDON.

2-14

and Atkyns, and that cannot be progumed in
his behalf. In fact, there is not an avennent
in the complainant's bill in fayor of the equity
of his demand, which is not met and denied in
the defendant's answer, and which has not been
disproYed by competent testimony. We do not
think there is anv'thing in the objection that the
mortga«;e to H. A. Tucker to secure future ad-
vances bv the firm of H. A. Tucker & Co. can-
not stand as security for advances made after
the admission of new partners into that firm.
The cases cited in support of this oblection do
not sustain it, and we have not been able to find
any one that does. They relate exclusively to
stipulations for an advancement of money to a
copartnership after a new member has been
taken into the firm.

In respect to the validity of mortgages for
existing debts and future advances, there can be
no doubt, if any principle in the law can be
considered as settled by the decisions of courts.
This court has made three decisions directlyand
inferentially in support of them: U. 8. v. Mooe,
8 Cranch, 78; Qmard v. AUarUic Insuranee
Company, I Pet., 448; Shirras v. Ca^,7 Cranch,
84. Tilghman, Ch. J. , says, in Lyle v. Dueomb,
5 Binn., 590, '* there cannot be a more fair.
bona Jide, and valuable consideration than the
drawmg or indorsing of notes at a future pe-
riod, for the benefit and at the request of the
mortgagors; and nothing is more reasonable
than the providing a sufllcient indemnity before-
hand." Mr. JtutUoe Story declared, in Leeds v.
Ck^meran, 8 8umn., 492, that nothing can be
more clear, both upon principle and authority,
than that at the common law a mortgage, bona
Me made, may be for future advances by the
mortgagee as well as for present debts and lia-
bilities. I need not do more upon such a sub-
ject than to refer to the cases of The U. 8. v.
Booe, 8 Cranch,'78, and Qmard v. The AUarUie
Ineuranee Company^ 1 Pet., 448.

We affirm the decree of the eireuit court in this
eaee, and shall remand it there for execution.

Cited— 101 U. 8., e» ; Bank. Eleg., 164: 8 Biss., 201 ;
35 111., 905 ; 86 Am. Bep., 822,a» (85 N. Y., 47).

LEWIS TEE8E and LEWIS TEE8E, JR.,

Plffe. in Br„

C. P. HUNTINGDON and MARK HOP-
KINS.

(See 8. C.t 28 How.. Z-U.)

Conned fees, not damages — patent right — notice
of special dtfcnse — order not necessary — second
notice-^depositions — credit of witness, hoto im-
peached.

Counsel fees are not a proper element for the
consideration of the jury in the estimation of dam-
ages in actions for the infrinerement of a patent
r&ht.

In suoh action, the Act of Congress requires that
notice of special matter to be olicred in evidence
at the trial shall be In writing', and be given to the
plalntiir, or his attorney, more than thirty days be-
fore the trial.

This Is a right conferred upon the defendant;
and he may exercise It in the manner and upon the
conditions therein pointed out, without any leave
or order from the court.

When the notice Is drawn, served and filed In
court, nothing further Is required to give the de-
fendant the full and unreetrioted benefit of t^e
provision.

The defendant Is required to specify In such no-
tice the persons on wnose prior Knowledge of the
alleged Improvement be relies, to disprove the nov-
elty of the invention, and the place or places where
the same had been used.

Compliance with this provision, on the part of
the defendant, is a condition precedent to hts right
to introduce suoh special matter under the gen-
eral issue.

He may give the requisite notice without any
leave or order from the court.

If the first notice served is defective, or not suf-
ficiently comprehensive, he may give another, more
than thirtv days before the trial.

Depofiitlons taken before the notice was served,
as well as those taken afterwards, are admissible,
provided the statements of the deponents are ap-
plicable to the matters thus put in issue between
the parties.

A witness, to impeach the credit of another, must
know what is generally said of the witness whose
credit Is impeached by those among whom the last
named witness resides, to be able to answer the In-
quiry, either as to his general character, or as to
his general reputation for truth and veracitv.

He is not required to speak from his own knowl-
edge of the acts from which the reputation of the
witness has been derived, nor is be allowed to do so.

But he must speak from his own knowledge of
what Is generally said of him by those among whom
he resides, and with whom he Is chiefiy conversant.

Any question that does not call for such knowl-
edge Is an improper one, and ought to be rejected.

The question, "What is the reputation of the
witness for moral character,'* was properly ex-
cluded.

Such testimony may also be excluded by the court,
when it applies to a period of time so remote as to
become entirely unsatisfactory and ImmateriaL

As the law cannot fix that period of limitation. It
must necessarily be left to the discretion of the
court.

When the witness had already stated that he was
not able to answer the question, the discretion of
the court was not unreasonably exercised by ex-
cluding It.

^Argued Mar. 16, 1860. Decided Mar. f 5, 1860.

IN ERROR to the Circuit Court of the United
States for the District of California, in and
for the Northern District of California.

This was an action on the case brought in
the court below, by the plaintiffs in error, to
recover damages resulting from an alleged in-
fringement of certain letters patent.

The trial below having resulted in a verdict
and Judgment in favor of the defendants, Uie
plaintiffs sued out tliis writ of error:

fffynL—lmpeaehtng witness by proo/ of character .
Scope of the inqwtry m to eharacUr and time.

An impeachmg or sustaining witness Is not to
speak of the reputation unless he knows It, and
such knowledge must be founded upon an ac-
quaintance and intercourse with the neighbors and
acquaintances of the individual whose character
Is in question, and that intercourse must be of
soc^e length of tunc— sufficient at least to enable
him to gather the general estimation in which he Is
held in the community In which he resides. Curtis
V. Fay, 87 Barb., 64 ; State v. Boswell, 2 Dev., 209 ;
People V. Hector, 19 Wend.. 509.

Particular facts cannot be inquired into. A wit-
ness is never permitted to speak of his knowledge

See 28 How.

of partlcubir facts from which he draws an opinion
of the witness examined. Particular instances of
want of veracity or destitution of moral principle
or particular immoral conduct Is not admissible.
Anon., 1 Hill, 257 : Boyd v. Lewis, 13 Johns., 604 ;
Bvans v. Smith, 5 Mon.,263: State v. Collins, 8 t>ev.,
117; Kimmel V. Klmmel. 8aerg.& R.,d36; Wlkev.
Llghtner. 11 Serg. k R.. 196 ; Hex v. Hodgson, Russ.
k Uy., 209; Rex v. Clark, 2 Stark., 241 ; Grcaton v.
Smith. 1 Daly, 880 ; Patriotic B'k v. Coote, 8 Cranch,
C. C, 109; U. S. v.Millasters, 4 Cranch, C. C, 479: U.
S. V. White, 5 Craach, C. C, 38 ; Corning v. Coming,
2 Sold., 97 ; Varona v. Socarras, 8 Abb. Pr., 802.

General character for drunkenness is not admia-
sible (Brindle v. Mcllvalne, 10 Serg. & R., 282) ; nor

47i»

8-14

SUFRBMB Ck>nBT OF THB UNITBD StATBS.

Dbc. Term,

A further statement of the case appears in
the opinion of the court.

Mr, P. Phillipst for plaintiffs in error:

By the 15th section of the Act of July 4.
1880, it is provided that *' whenever the* de-
fendant relies, in his defense, on the fact of a pre-
vious invention, knowledge or use of the thing
patented, he should state in his notice of the
special matter, the names and places of the resi-
dence of those whom he intends to prove to
have possessed prior knowledge of the thing,
and where the same had been used.

The object of the notice is to prevent sur-

Erise, to enable the patentee fully to vindicate
is rights. The notice is, therefore, to be
strictly construed, and no evidence variant
from it is admissible.

PhU, d: T, B. R. Co. v. SHmpton, 14 Pet., 459;
SOsby V. Foote, 14 How.. 222; Seymour v. Me-
Cormiek, 60 U. 8. (19 How.), 107.

If the evidence was inadmissible under the
first notice, it could not be made good by a
notice subsequent to the filing of the deposi-
tion^.

Evidence was offered to impeach the charac-
ter of one of the defendants' witnesses, by
showing his "general reputation for moral
character." It was oblected that ** the inquiry
should be limited to his general reputation for
truth and veracity ;" and the objection was sus-
tained.

The authorities on this point are to be fo^und
carefully collated in 21 Amer. L. J., N. S.,
145, where it is said that so far as the decisions
in England are concerned, "thev are unani-
mous to the point that the true criterion of the
credit of a witness is his general character and
conduct, and not his general character for
truth and veracity. The English books will be
examined in vain for a single authoritative
case which, in any respect, limits the examina-
tion upon this point to the character for truth
and veracity."

Upon examination it will be found that this
rule obtains in most of our states.

Other evidence was then offered to prove the
reputation of the witness from 1860 to 1858, for
truth and veracity. To which it was objected
that "the dates named were too remote, and
that the reputation of the witness at a period
less remote from the time of trial, could be
alone put in issue." This objection, also, was
sustained.

Four jrears is certainly a short statute of lim-
itations m favor of reputation. Whatever influ-
ence the question of time was entitled to, was
for the Jury to consider. The Judge could not
exclude the evidence as incompetent, for there
is neither common law rule nor statute to jus-
tify it.

Mestrs. Charles O'Conor and Oeor(ge
Oifford, for defendants in error:

1. The objection to the introduction of evi-
dence of Haight to prove what would be a
reasonable counsel fee, was properly sustained.

No recovery can be had in an action for the
infringement of a patent, for counsel fees.

Stimpstmy. The BaUraada, 1 Wall., Jr., 164;
2 Robb., 595; Areambelr, Wu&man, 8 Dali.,
806; WMttemare v. Cutter, 1 Gall., 429; 1 Robb.,
29,36.

As to the meaning of actual damages, see
Seymour v. MeComdek, 16 How., 489, 490.

2. The objection to the inquiry as to Jesse
Morrill's reputation for " moral character," was
properly sustained.

It is not in any case proper to seek to im-
peach a witness by proving what was his repu-
tation for moral character. The inquiry should
be as to his reputation for truth and veracity.

U, 8. V. Van SiekU, 2 McLean, 219; Giue v.
SUnwm, 2 Sumn., 610; Gilbert y. ShMon, 18
Barb., 628; The People v. RecUyr, 19 Wend.,
569; Jackeon v. Lewie, 13 Johns., 504; The State
V. Bruce, 24 Me., 71. 72; PhilUpt v. Kin^iM,
19 Me., 875; CommonweaUh v. Moore, 8 Pick.,

that the witnefls has l>eea Indicted, no oonvlotlon
having followed (Oibbs v. Osborn, 2 Wend., 656) ;
nor that he has heard witness accufledj)f petit lar-
ceny. Barton v. Morphes, 2 Dev., 620.

Toe scope of the inquiry seems to be : 1. What is
the general character of the witness? 2. What is
bis general character for veracity? 8. Is he to be
believed under oath from his general character?
General character and common reputation must
never be departed from, though the question need
not be restricted to an inquiry as to truth and ver-
acity. Wilke V. Lightner, 11 Serg. & R., 199; Noel
v. Dickey, 8 Bibb, 268; Blue v. Kibby, 1 Mon., 196;
Hume V. Scott, 3 Marsh., 280; State v. Stallings, 2
Hay w., 800; State v. Boswell, 2 Dev., 209: Anon., 1
Hill, 251, 258, 259 ; People v. Mather, 4 Wend.. 257,
258: 1 Starkie, Bv., 146; 1 Phil. Bv., 212: Rex. v.
Bispham, 4 C. & P., 892; Fulton B'k v. Benedict, 1
Hiir(N.Y.),658,669.

The impeaching witness may be cross-examined
as to the grounds of his opinion, and how long the
unfavorable reports have prevailed, and from what
particular individuals he heard them, and as to his
opportunity of knowing the character of the im-
peached witness. State v. Boswell, 2 Dev., 212;
Fulton B'k V. Benedict, 1 Hall (N. Y.), 558 ; People
V. Mather, 4 Wend., 267. 258 ; Lower v. Winters, 7
Ck)w.. 265 ; Bakeman v. Rose, 18 Wend.. 146.

The general character of the impcnicning witnens
may be assailed in the same way as that or the first.
Noel V. Dickie, 3 Bibb, 288; Starks v. People, 5 De-
nio, 106.

The character of a witness may be impeached by
persons in whose neighborhood the attueked wit-
ness has resided until within four years of the trial,
though they know nothing of the character borne
by the witnetw at the place to which he had re-
moved. Sleeper v. Middle worth, 4 Denlo, 431.

480

The law does not presume that a person of ma-
ture age, whose general character has been notori-
ously bad up to within a period of five years, has so
reformed as to have acquired an unimpeachable
reputation since that time. Rathbun v. Ross, 46
Barb., 127.

The inquiry is not, in its nature, limited as to time.
People V. Abbot, 19 Wend., 192.

The law lays down no certain limit to inquiries as
to the general reputation of a witness. A limit»>
tion to a period of five years before trial, held to
be error. Stevens v. Rogers, 26 Hun, 54.

A person is not a competent witness to testify to
the general character or another witness unless he
knows it. It is not sufUclent, that he has heard a
number of people, on a single occasion, speak 111 of
such witness, without proof tliat they anew bis
character ; but the knowledge to make him com-
petent must be acquired by ume and by the gen-
eral speech of people who know or have had an
opportunity to know and form an opinion. Cberi-
tree v. Roggen, 67 Barb., 114.

To discredit a witness it is not competent to

f)rove general bad charater disconnected with the
nquiry concerning his veracity. (J. S. v. Van
Sickle, 2 McLean, 219 ; U. S. v. Dickinson, 2 McLean,
825; seeTeese V. Huntington, supra.

The usual questions asked in u . 8. courts to dis-
credit a witness are, what Is the witness* general
reputation for truth? Is it good or bad? uaos v.
Sttnson, 2 Sumn., 606.

It is not improper to ask the person on the stand.
What is the general ** reputation " for truth of the
witness sought to be impeached. It is even more
proper than to ask what is his general ** character "
for truth. Knode v. Williamson, 84 V, S. (17 WaU.),
586.

64 U.S.

1839.

Tbkse v. Uuntingdon.

3-14

IM. 196; Mortey, Pineo, 4 Yt., 281; Siatsr,
Smith, 4 Vt., 141; JSbears v. Forrest, 15 Vt.,
485; State ▼. BandotpK 24 Conn., 868; StaU v.
Howard. 9 K. H., 485: OUchriatv, McKee, 4
Watts, 380; Chess v. Chess, 1 Penn.. 33; Uhl
V. Commonwealth, 6 Grat., 706; Ward v. The
SttUe, 38 Ala., 68: Firrdy, Ford, 7 Humph.,
92; Jones V, The State, 13 Tex., 168; Perkins
v. ifo6{0y, 4 Ohio St., 668; Tayl. £▼., sec.
1083.

3. The testimony was properly excluded, as
to what was the reputation of Jesse Morrill in
1852 or 1853 — about five years before the trial.

It does not appear that said Morrill was a
witness called by the defendants. He is not
named in the notices of special matter of de-
fense as one of the defendants' witnesses, and
he is not named In the lists of witnesses exam-
ined by the defendants.

It must appear by the record that he was
called by the defendants, or this objection for
that reason must fall.

The mere assertion of facts in the assignment
of errors to show error, cannot be substituted
for the record.

Judiciary Act of 1789, sec. 22; Conkl. Tr.,
3d ed., 689; Stevens v. Cladding, 60 U. S. (19
How.), 64; Parsons v. Bedford, 8 Pet., 433,
445.

A party cannot impeach a witness called by
himself, by proving him unworthy of belief.

Grab. & Wat., N. T., 953.

The court below ruled out the evidence offered
to Impeach Morrill, and except so far as the rec-
ord shows, this court has no means of knowing
why. All presumptions are in favor of the cor-
rectness of the ruling.

2 Grab. & Wat., K. T.,596 to 599.and cases.

There must be a limit of time, back of which
a party cannot go to prove the reputation of a
witness to impeach him; else to impeach a man
on a trial to-day, it might be proved what his
reputation was, for truth and veracity, fifty
years ago.

There is no specific time fixed by law, and it
must be left to the discretion of the judge at the
trial.

y . The only object of granting a new trial in
any case is to prevent injustice, and where the
court sees that substantial justice has been done,
it will not order a new trial, although there has
been some irregularity or error at the trial.

See Horford v. WiUtm, 1 Taunt, 12; The v.
TyUrr, 6 Bing., 561 ; SiOes v. Tatiyrd, 10 Wend.,
Sfe; Smiih v. Ilarmanson, 1 Wash., Va.. 6.

The record in this case shows that, without
the evidence objected to, if there had been a
verdict for the plaintiff, the court would have
set it aside as being a^inst evidence.

Corbett V. Brown, 8 Bing., 83; Kohne v, Ins.
Co., 1 Wash. C. C, 128.

The court will not grant a new trial for the
plaintiff to try for a verdict which they would
set aside, if rendered.

Mr. Justice Clifford delivered the opinion of
the court:

This is a writ of error to the Circuit Court of
the United States for the Northern District of
California. According to the transcript, the
declaration in this case was filed on the 18lh
day of March, 1856. It was an action of tres-
pass on the case for an alleged infringement of

Bee 23 Uow. U. S., Book 16.

certain letters patent purporting to have been
duly issued to the plaintiffs for a new and use-
ful improvement in a certain machine or imple-
ment called a sluice fork, used for the purpose
of removing stones from sluices and sluice boxes
in washing ^old. As the foundation of the
suit, the plamtiffs in their declaration set up
the letters patent, alleging that they were the
original and first inventors of the improvement
therein described, and charged that the de-
fendants, on the 2d day of July, 1865, and on
divers other days and times between that day
and the day of the commencement of the suit,
unlawfully and without license vended and sold
a large number of the improved forks made in
imitation of their invention. To this charge
the defendants pleaded the general issue, and
in addition thereto, set up in their answer to the
declaration two other grounds of defense. In
the first place, they denied that the plaint-
iffs were the original and first inventors of
the improvement described in the letters pat-
ent, averring that the supposed improvement
was known and used by divers other persons
in the United States Ions: before the pretended
invention of the plaintiffs. They also Alleged
that the improvement claimed by the plaintiffs,
as their invention, was not the proper subject
of a patent within the true intent and meaning
of the patent law of the United States.

By the 15th section of the Patent Act of the
4th of July, 1886 (5 Stat, at L., 117), the de-
fendant, in actions claiming damages for mak-
ing, using, or selling, the thing patented, is per-
mitted to plead the general issue, and for cer-
tain defenses, therein specified, to give that Act
and any special matter in evidence which is
pertinent to the issue, and of which notice in
writing may have been given to the plaintiff or
his attorney thirty days oef ore the trial. With-
in that provision, and subject to that condition,
he may, under the general issue, give any spe-
cial matter in evidence tending to prove that
the patentee was not the original and first
inventor or discoverer of the thing patented, or
a substantial and material part thereof claimed
as new, or that it had been described in some
public work anterior to the supposed discov-
ery by the patentee, or had been in public
use, or on sale, with the consent and allowance
of the patentee, before his application for a pat-
ent. But whenever the defendant relies in his
defense on the fact of a previous invention or
knowledge or use of the thing patented, he is
required to *' state in his notice of special mat-
ter the names and places of residence of those
whom he intends to prove to have possessed a
prior knowlcKige of the thing, and where the
same had been used."

Two written notices were accordingly given
by the defendants of special matter to be offered
in evidence by them at the trial, in support of
the first ground of defense set up in the answer
to 'the declaration. One was dated on the 28th
day of August, 1856. and the other on the 19th
day of Septei;nber of the succeeding }rear, but
they were both duly served and filed in court
more than thirty days before the trial. Upon
this state of the pleadings the parties, on the
20th day of October, 1857, went to trial, and
the jury, under the rulings and instructions of
the presiding justice, returned their verdict for
the defendants. After the plaintiffs had intro-

31 481

2-U

BurAKMK Court of thk Ukitkd States.

Dkc. Tkioi,

duced evidence tending to prove the alleged
infringement of their patent, they claimed that
counsel fees were recoverable as damages in this
action, and offered proof accordingly, in order
io show what would be a reasonable charge in
that behalf.

That evidence was objected to by the defend-
ants, upon the ground that counsel fees were
not recx)verab]e as damages in actions of that
description, and the court Hustained the objec-
tion, and excludtd the evidence. To which
ruling the plaintiffs excepted. Little or no reli-
atice was placed upon this exception by the
counsel of the plaintiffs, and in view of the cir-
cunistunces, one or two remarks upon the sub-
ject will be sufficient. Suppose it could be
admitted that counsel fees constituted a proper
element for the consideralicm of the jury, in
the estimation of damages in cases of this de-
scription ; still the error of the court in exclud-
ing the evidence would furnish no ground to
reverse the judgment, for the reason that the
verdict was for the defendants. For all pur-
poses connected with this investigation, it must
be assumed, under the finding of the jury, that
the plaintiffs were not entilled to anv damages
whatever; and if not, theu the evidence ex-
cluded by the ruling of the court was entirely
immaterial. But the evidence was properly
rejected on the ground assumed by the presid-
ing justice.

Counsel fees are not a proper element for
the consideration of the jury in the estimation
of damages in actions for the infringement of a
patent right. The point has been directly ruled
by this court, and is no longer an open ques-
tion. Jurors are required to find the actual
damages incurred by the plaintiff at the time
his suit wa<) brought; and if, in the opinion of
the court, the defendant has not acted in good
faith, or has caused unnecessary expense and
injury to the plaintiff, the court may render
judgment for a larger sum, not exceeding three
times the amount of the verdict. 5 Stat, at L.,
p. 123; Dayy. Woodicorth, 13 How., 872. To
maintain the issue on their pan. the defendants
offered three depositions, each tending to prove
tliat the plaintiffs were not the original and
first inventors of the improvement described in
their letters patent.

Objection was seasonably made by the plaint-
iffs to the introduction of each of these deposi-
tions on two grounds: 1. Because the first
notice of special matter to be introduced at the
trial did not accord with the proof offered, as
contained in these depositions. 2. Because the
second notice of special matter to be thus intro-
duced was served and filed without any order
from the court and, therefore, should be disre-
garded.

Exceptions were duly taken to the respective
rulings of the court, in admitting each of these
depositions; but' as they all depend upon the
same considerations, they will be considered
together.

It is conceded by the defendants that the
first notice was, to some extent, insufficient.
On the other hand, it is admitted by the plaint-
iffs that the terms of the second notice were suf-
ficiently comprehensive and specific to justify
the rulings of the court, in allowing the deposi-
tions to be read to the jury. They, however,
iusicjt upon the objection, taken at tlie trial,

4H2

that it was served and filed without any order
of the court, and that it was insufficient, be-
cause it was served and fil^ subsequently to
the time when the depositions were taken and
filed in court.

But neither of these objections can be sus-
tained. All that the Act of Congress requires
is, that notice of the special matter to be offered
in evidence at the trial shall be in writing, and
be given to the plaintiff, or his attorney, more
than thirty days before the trial. By the plain
terms of the law, it is a right conferred upon
the defendant ; and of course he may exercise it
in the manner and upon the conditions therein
pointed out, without any leave or order from
the court. When the notice is properly drawn,
and duly and seasonably served and filed in
court as a part of the pleadings, nothing fur-
ther is required to give the defendant the fuU
and unrestricted benefit of the provision.

Such notice is required, in order to guard
patentees from being surprised at the trial by
evidence of a nature which they could not be
presumed to know or be prepared to meet, and
thereby subject them either to delay or a loss
of their cause. To prevent such consequences,
the defendant is required to specify the names
and places of residence of the persons on whose
prior knowledge of the alleged improvement he
jelies to disprove the novelty of the invention,
and the place or places where same had been
used. Wilton v. RaUroads, 1 Wall., Jr., 195.

Compliance with this provision, on the part
of the defendant, being a condition precedent
to his right to introduce such special matter
under the general issue, it necessarily follows
that he may give the requisite notice without
any leave or order from the court; and for the
same reason, if he afterwards discovers that
the first notice served is defective, or not suffi-
ciently comprehensive to admit his defense, he
may give another, to remedy the defect or sup-
ply the deficiency, subject to the same con-
dition that it must be in writing, and be served
more than thirty days before the trial.

Having given the notice as required by the
Act of Congress, the defendant at the trial may
proceed to prove the facts therein set forth by
any legal and competent testimony. For that
purpose, he may call and examine witnesses
upon the stand, or he may introduce any deposi-
tion which has been legally taken in the cause.
Under those circumstances, depositions taken
before the notice was served, as well as those
taken afterward, are equally admissible, pro-
vided the statements of the deponents are ap-
plicable to the matters thus put in issue between
the parties.

After the defense was closed, the plaintiffs
offered evidence to impeach one of the wit-
nesses, who had given material testimony for
the defendants, when called, the impeaching
witness stated that he knew the witness sought
to be impeached, and knew other persons who
were acquainted with the witness, and that
they both resided in the City of vSacramento;
whereupon, the counsel of the plaintiffs put
the question, '^Whatisthe reputation of the
witness for moral character?" To that ques-
tion, the counsel of the defendants oblected,
on the ground that the inquiry should be limited
to the general reputation of the witness for
truth and veracity, with the right to put the

64 U. 8.

1859.

TfififiS y. ntNTINGDON.

Z-H

further incjuiry whether the witness lestifving
would believe the other on his oath; and the
court sustained the objection, and rejected the
testimony.

No reasons were assigned by the court for
the ruling; and of course the only point pre-
sented is, whether the particular question pro-
pounded was properly excluded.

Courts of justice differ very widely, whether
the general reputation of the witness for truth
and veracity is the true and sole criterion of
his credit, or whether the inquiry may not
properly be extended to his entire moral char-
acter and estimation in society. They also
differ as to the right to inquire of the impeach-
ing witness whether he would believe the other
on his oath. All ajccree, however, that the first
inquiry must be restricted either to the general
reputation of the witness for truth and veraci-
ty, or to his general character; and that it can-
not be extended to particular facts or transac-
tions, for the reason that, while every man is
supposed to be fully prepared to meet those
general inquiries, it is not likely he would be
equally so without notice to answer as to par-
ticular acts.

Accordmg to the views of Mr. Qreenleaf , the
inquiry in all cases should be restricted to the
general reputation of the witness for truth and
veracity; and he also expresses the opinion that
the weight of authority in the American courts
is against allowing the question to be ptit to the
impeaching witness whether he would believe
the other on his oath. In the last edition of
his work on the law of evidence, he refers to
several decided cases, which appear to support
these positions; and it must be admitted that
some of these decisions, as well as others that
have since been made to the same effect, are
enforced by reasons drawn from the analogies
of the law, to which it would be difficult to
give any satisfactory answer.

1 Greenl. Ev., sec. 461; Phillips v. Kingfleld,
19 Me., 875, per Shepley, J. ; Goshy. Stimpnon,

2 Sumn., 610; Wood v. Mann, 2 Sumn.. 321;
Cra^ V. The Stats. 5 Ohio. N. 8., 605; Gilbert
v. Sheldon, 13 Barb., 623; Ja^kwn v. Lewis, 13
Johns., 504; U. S. v. Vaih SiekU, 2 McLean,
219: Slats v. Brnce. 24 Me., 72; Com. v. Moore,

3 Pick., 196; Gilchrut v. McKee, 4 Watts. 380;
State V. Smith, 7 Vt., 141; Frye v. Bank of
HUnoi», niW.. mi\Jone»v. TJie State. 13 Tex.,
168; StaU v. Jiandolph, 2i Conn., 363; Uhl v.
Com., 6 Gratt., 706; Wike v. LighUner, 11 8. &
U., 338: Eimmel v. Kimmel. 3 8. & R.. 838;
State V. Howard, 9. N. H., 485; Burklinv. T/ie
State. 20 Ohio, IS, Ford v. F\/rd, 7 Humph., 92;
Thunnan v. Virgin, 18 B. Mon., 792; Perkins
v. Mobley, 4 Ohio, N. 8., 668; Bates v. Barber,
4Cu8h., 107.

On the other hand, a recent English writer on
the law of evidence, of great repute, maintains
that the inquiry in such cases properly involves
the entire moral character of the witness whose
credit \» thus impeached, and his estimation in
society ; and that the opinion of the impeaching
witness, as to whether he is entitled to be be-
lieved on his oath, is also admissible to the
jury. 2 Taylor, Ev., sees. 1082, 1083.

That learned writer insists that the regular
mode of examining into the character oi the
witness sought to be impeached is to ask the
witness testifying whether he knows his gen-
See 23 How.

eral reputation; and if so, what that reputation
is, and whether, from such knowledge, he
would belive him upon his oath. In support
of this mode of conducting the examination,
he refers to several decided cases, both English
and American, which appear to sustain the
views of the writer.

BexY. Watson, 32 How. St. Tr., 496; Maw-
son V. Hartsink, 4 Esp., 104; Bex v. Bookwood.
13 How. St. Tr., 211; Carpenter v. WaU, 11
Ad. & El, 803; Anonymous. 1 Hill (8. C).
259: Hume v. SeoU, 8 A. K. Marsh.. 262; Day
V. The State, 13 Mo., 422; 3 Am. Law. Jour.,
N. 8., 145.

Both Mr. Qreenleaf and Mr. Taylor agree,
however, that the impeaching witness must be
able to state what is generally said of the other
witness by those among whom he resides, and
whom he is chiefly conversant, and in effect
admit, that unless he can so speak, he is not
qualified to testify upon the subject, for the
reason that it is only what is general I}[ said of
the witness by his neighbors that constitutes his
general reputation. To that extent they con-
cur, and so, as a general remark, do the author-
ities which on the one side and the other sup-
port these respective theories; but beyond that,
the views of these commentators, as well as the
authorities, appear to be irreconcilable.

In referring to this conflict of opinion among
text writers, and judicial decisions, we have not
done so because there is anything presented in
thisrecord that makes it necessary to choose be-
tween them, or even renders it proper that we
should attempt at the present time to lay down
any general rule upon the subject. On the con-
trary, our main purpose in doing so is to bring
the particular question exhibited in the bill of
exceptions to the test of t)oth theories, in order
to ascertain whether under either rule of prac-
tice it ought to have been allowed. Under the
first mode of conducting the examination, it is
admitted that it was properly rejected, and we
think it was equally improper, supposing the
other rule of practice to be correct. Whenever
a witness is called to impeach the credit of
another, he must know what is generally said
of the witness whose credit is impeached by those
among whom the last named witness resides, in
order that he may be able to answer the inquiry
either as to his general character in the broader
sense, or as to his general reputation for truth
and veracity. He is not required to speak from
his own knowledge of the acts and transactions
from which the character or reputation of the
witness had been derived, nor, indeed, is he al-
lowed to do so, but he must speak from his
own knowledge of what is generally said of
him by those among him he resides, and with
whom he is chiefly conversant; and any ques-
tion that does not call for such knowledge is
an improper one, and ought to be rejected. Xo
case has been cited authorizing such a question,
or even furnishing an example where it was
put, and our researches in that direction have
not been attended with any better success. For
these reasons, we think the question was prop-
erly excluded. Some further attempts were
made by the plaintiffs to impeach this witness,
and with that view they called another witness,
who testified that he knew the one sought to
be impeached, and had had business transac*
tions with him during the years 1852-'53 in

488

190-209

BUFBBMB COUBT OF THB UlOTSD StaTBB.

Dbc. Tebsc,

the city where they resided. On being asked
by the counsel of the plaintiffs what was the
reputation of the witness for truth and veracity,
he replied that he had no means of knowing
what it was, not havlnsr had any dealings with
him since those transactions; thereupon the
same counsel repeated the question, limiting it
to that period.

Objection was made to that question by the
counsel of the defendants on the ground that
the period named in the question was too re-
mote, and the court sustained the objection and
excluded the question. To this ruling the
plaintiffs excepted. Such testimony undfoubt-
edly may properly be excluded by the court
when it applies to a period of time so remote
from the transaction involved in the contro-
versy, as thereby to become entirely unsatis-
factory and immaterial; and as the law cannot
fix that period of limitation, it must necessarilv
be left to the discretion of the court. Consid-
ering that the witness had alreadjr stated that
he was not able to answer the question, we do
not think that the discretion of the court in this
case was unreasonably exercised.

NoThe of the exceptions can be sustained, and
the judgment of the circuit court is, therefore,
affirmed, with costs.

CIted-7 Wall., 593: 8 Wall., 427; 9 Wall., 789; 11
Wall.. 539; L5 Wall.. 2:», 453; 17 Wall, 543; 95 U. 8.,
219 ; 7 Blatchf ., 506 ; 2 McC, 476 ; 4 Cliff., 91 ; Pat. Off.
Gaz., 16.174; 49 Ind., 132: 18 Minn., 383; 19 Am.
Kcp., 676 (49 lad., 524).

JOHN BAPTI8TE BEAUQIEN et al.,

Appts.,
t,

ANTOINE BEAUBIEN BT AL.

(See S. C, 23 How., 190-209.)

Limitations in equity — same as at law — Mich-
igan law— fraud or concealment, to avoid stat-
ute, how set up—fifty years* exclusive posses-
sion.

Where the oommon ancestor, and defendants
clalmlQK under them, have been in the ezcludive
possession of the premisefl in question sixty-two
years before the commencement of this suit, and
no rivht has been set up by the plaintiffs, or by
those under whom they claim, to the title or the

Eossession of the premises, until the flllnfir of this
ill: held, that the case is one in which courts of
equity follow the courts of law, in applyingr the
Statute of Limitations.

There are two Acts of Limitation In the State of
Mlchisran, either of which bars the claim of the
plaintiffs. 1. The Act of May 15, 1830, which limits
the riff ht of action to twenty years after the same
has accrued ; and 2. The Act of Nov. 15, 1829,
which limits the rig-ht of entry to ten years, if the
cause of action has then accrued.

When the plaintiffs seek to avoid the operation of
the limitation, by an averment of concealment and
fraud on the part of the defendants and those
under whom they claim, the particular acts of
fraud or concealment should have been set forth
by distinct averments, as well as the time when dis-
covered, so that the court may see whether, by the
exercise of ordinary diligence, the discovery mi^ht
not have been before made.

When no acts of fraud or concealment are stated,
and the time when even an intention to defraud,
which is all that is averred, was discovered, was
some fifty years after the exclusive possession, of

NoTB.— Limitaliit'm in equity. Relief denied from
lapt^e of time. See note to Pratt v. Carroll, 12 V. B.
(H Cranch), 478, and note to Thomas v. Harvle's*
Heire, 23U.J3. (10 Wheat.), 147.

the defendants and those under whom tbey dalnu
had commenced ; and this, although the plaiotifrs
lived In the neighborhood of the premises ; held,
that the Statute of Limitations applies.

Submitted Fd>. 17 and Mar. 9, 1860. Decided

Mar. 26, 1860.

APPEAL from the Circuit Court of the Unit-
ed States for the District of Michigan.

The history of the case and a statement of
the facts appear in the opinion of the court.

Messrs. R. H. GUlet and Piatt Smitk.
for appellants:

The bill sets forth a complete title executed
in strict compliance with the previous edict of
the King.

See White's Land Laws, fol. 1, p. 668.

The title papers in this case are executed by
the proper officers, and in strict compliance
with the above law. By virtue of this grant
the lands in question became, and forever re-
mained, private property, and consequently
were never transferred by France to Great Brit-
ain, nor by Great Britain to the United States,
as government properly. The Treaty of 1794
between the Unitea States and Great Britain,
confirmed the rights of all parties, and their
legal representatives, in the titles which they
held at the time Great Britain ceded tiiat coun-
try to the United States.

See art. 9 of the Treaty, Shanks v. Dupont,
8 Pet., 262.

The facts charged in the bill are admitted by
the pleadings. Part of the defendants demur,
the others plead in confession and avoidance.
Thereby the authority of the officers making
the grant, the reasons for taking the case out
of the Statute of Limitations, the fraud and
dishonesty of the defendants, and those under
whom they hold — ^are all admitted.

Even if it were not admitted, the authority
of officers making the grant would be pre-
sumed.

See Strother v. Lucas, 12 Pet., 410, 411.

Lapse of time is not made a question by the
pleadings: the court will not presume for thede-
lendants what they do not claim for themselves.

In Weatherheais Lessees v. BaskertiUe, 11
How. , 829, the suit was brought 58 years after
the death of the ancestor; 5H years after the
partition among the girls; 45 years after that
among the boys. The suit was maintained. See
paees 8)9. 860.

In Stackpoole v. Davoren, an account of rents
and profits of an estate was decreed after an
adverse possession of 50 years.

1 Bro. P. C, 9, referred to in Hill on Trust-
ees, 265.

In a recent case, SirC. Pepys, the M. R., set
aside a purchase by a steward at an undervalue
after an interval of 47 years. 2d June, 1835:
affirmed 11 Clark & F., 714; Hill on Trustees,
265, where reference is given to many other
cases of like tendency.

A case is reported in 5 Sim. , 640. There the
defendants had been in possession 70 years;
and to a bill tiled by the remainder-man to re-
cover the estate, a plea was put in, stating that
adverse possession of the property had been
held during the whole time, and that the rents
and profits had been received. The ViceCfian'
cellor overruled the plea, and on an appeal
taken, his decision was affirmed by Chancellor
Brougham.

64 U.S.

1859.

Braubien v. Bbaubibk.

ldO-209

Mylne & K., 738; cited in 16 Pet., 468; see,
also, Doe, d, Fenwidc, v. Reed, 5 Barn. & Aid.,
2:^2; Swayze v. Burke, 12 Pet., 11; Brush v.
Ware, 15 Pet., 98.

The grant by the governor and intendant
severed the tract from the public domain, and
it could not be re-annexed without process by
or before them.

Declaration Du Roi, 1 White's Land Laws,
669.

Contrary to the Roman law, the French law
did not hold to a strict forfeiture when a con-
dition was not performed within a time limited.

Pothier on Obligation, sec. 349; Domat,yol.
L, sec. 222.

The King ia bound by the law equally with
the subject.

(Euvres Duplessis, Vol. I., p. 679 ; see 1
White Land L., 639.

By the English as well as the French law, an
action-or "office" was necessary to re-annex a
concession to the public domain.

Greenl. Cruise, Vol. II.. p. 32, sees. 39, 41.

It has been repeatedly held that a perfect
title needs no confirmation.

9 How, 445.

If the title had not been perfect, the confirma-
tion would merely have made good the old, and
would have made no new title.

See Act of Congress, March 3, 1807, sec. 2,
2 Stat. atL., 43:$.

This provides that the party in possession, in
his own right, under a claim filed under the
former Acts, shall be confirmed in the title
to the same, as in the state of inheritance. No
other title is intended to be granted bj the
Act. The confirmation is inoperative, except
in favor of those in whom the right of posses-
sion is.

Antoine Beaubien's possession was that of a
son and brother, not that of an adverse claim
ant; he was not in possession in his own right,
but only for himself and his brothers and sisters.

Ang. Lim., 408, noU.

There is equltv in the bill. The matters in
controversy could not be investigated at law
without a multiplicity of suits. A court of
equity will not hesitate to look behind a patent,
especially when it appears that fraud was used
in obtaining.

Boeder v. Barr, 4 Ohio, 446; Ware v. Brush,
1 McLean, 533.

The plea is no bar to the matters set up in
the bill. The plea of a purchaser for valuable
consideration without notice, should aver that
the person from whom he purchased had such
an interest in the property as entitled him to
convey it to the defenaant.

2 Dan. Ch. Pr. , 687 ; Head v. Bg&rton, 3 P.
Wms.. 281; Daniels y. Damson, 16 Ves., 252 ;
Craig v. Leiper, 2 Yerg. , 196.

The plea traces title from the United States.
But this is not enough, for a preexisting title
is distinctly averred and set forUi in the bill;
and it has been repeatedly held that a patent
from the United States does not affect a pre-
existing title in a third person.

New Orleans v. Armas, 9 Pet., 236; U. 8. v.
Arredondo, 6 Pet., 738.

The bill charges that this patent was obtained
by the fraud of Antoine Beaubien, the patentee ;
that the patent was based on the French titles
under which plaintiffs claim, which patent, so

See 28 How.

far as it purports to convey anything to said
Antoine, is fraudulent and void as against com-
plainants. The bill also charges that defend-
ants, or some of them, have possession of the
documents of the original title. The plea does
not undertake to deny the fraud, or that the
patent was obtained on the claim founded on
the original French titles, or that the defend-
ants have not the original title papers. All
these should be negatived by averment in the
plea.

2 Daniels* Ch. Pr., 691.

Possession, to be adverse, must be in good
faith, and not a precarious possession, such as
A possessio fratris or a fraudulent possession.

Domat.. Ang. on Lim., 402; Cook v. Nicholas,
2 Watts. & S., 27; DowdaU v. Byrne, Batty,
Irish, 378.

Messrs J. M. Carlisle, Geo. P. Russell
and H. H* EmmonSt for appellees:

1. Theclaim of the complainants is barred by
the Acts of Congress and the action under them,
by which Antonie Be^bien obtained a patent.

The following are the statutes under which
the proceedings were had :

2 Stat, at L., March 26th. 1804; Act of 1805,
March 3d. , Stat, at L. . 343. sec. 5 ; Act of March
3d, 1807, 2d Stat, at L., 437.

AmoYig all the statutes creatine boards, whose
decisions this court has declared to be judicial
and final, none are more comprehensive than
these.

We insist that the statute having in express
terms barred all rights not presented and proved
before the board, every right which is m hos-
tility to the decision of the board, is forever
cut off.

The following cases we submit in full to sus-
tain these views:

Bernard v. Bougard, 1 Harr., (Mich.), 130,
ffickey v. Stewart, 3 How., 750; Strother v.
Lucas, 12 Pet.. 454, 458; see 6 Pet., 770; BMn-
son V. Minor, 10 How., 627; Landes v. Brant,
10 How., 348; Laroche v. Jones, 9 How., 155;
West V. Cochran, 58 U. S. (17 How.), 414; U.
8. V. Arredtmdo, 6 Pet., 729, 730.

2. The claim in this case is barred by the
Statute of Limitations.

This defense, as well as lapse of time gener-
erally, may be taken by demurrer.

Rhode Island v. Massachusetts, 15 Pet., 233;
Story, Eq. PI., sees. 508, 508. 761; 4 Wash.,
631, 632; 2 Sch. & Lef., 637; 6 Sims, 51; 4
Johns. Ch., 299; 2 Ves., Jr., 294; 1 Johns.
Ch.. 46: 1 Bald. 418; 19 Vesey, 180; 7 Paige,
195: 11 En^. Ch.. 68.

The bill m this case contains no sufi[icient
averment to a^oid the application of the statute.

The two Acts, of May 15, 1820 (R. Laws of
Mich.. 1833, p. 570, sec, 6), and of Nov., 15,
1829 (R. Laws 1833. p. 408), and especially the
latter, bar all claim in this case.

For the application of the Act of 1829 to past
causes of action, see Laws of Michigan 1843. p.
43, declaring that all causes shall be determined
by the law applicable to them, when the Rev.
Stats, of 1838 were passed.

See, also, judiciallv so holding, Lastly v.
Cramer, 2 Doug. (Mich.). 307.

It is hardly necessary to cite the following
cases, to show that where the statute commences
to run. no subsequent disability will arrest it.

15 Johns., 169; Adams, Eq., 69 note 1; 1

485

190-209

BuPREiCB Court of the United States.

Dec. Term,

Sug. Vend.. 8898; Bix)d. &Bing., 217; 8 Johns.
Ch., 140, and cases cited ;Plowd., 353; 4 Mass..
282;C.& Hills Notes, 320.

And most particularly do we ask attention to
the decisive fact, that in this Statute of 1629
there is no saving clause. The bar is general
and universal. The non-resident is bound
equally with the resident, the infant with the
adult, and we therefore need not stop to discuss
the particular circumstances of each complaint.

That where the Legislature have made no ex-
ceptions, the courts can make none.

See 1 Sug. Vend., 889; 4 Tenn., 807, per
Shippen, arguendo, and many other easels cited
elsewhere in this argument.

This court has repeatedly recognized this
rule.

Bank of the State of Alabama v. Dalton, 9 How. ,
622; Melver v. JSagan, 2 Wheat., 25; Bacon v.
Howard, 61 U. S. (20 How.). 25.

If, then, this action may be said to have arisen
at any time before 1828, it was barred Nov.
10, 1889.

When, within the meaning of this rule, did it
arise ?

The bill says, that Antoine Beaubien was in
possession with his brother before 1800; that he
presented a sole claim before the board in 1804,
and did not succeed because he failed in his at-
tempt to prove a conveyance to himself under
the French title. He then, in 1804, claimed
sole ownership, attempted to prove it. This
was open and notorious. A public record is
made of it. All had notice of it. There is no
denial that all the co-heirs had such notice; and
there is no pretense that he agreed expressly to
take in trust for them. This, then, was a hos-
tile sole claim. But the bill further savs, that
again, in 1807, he presented another sole claim
as sole occupant and improver. He procured
witnesses to swear he was such. It was judi-
cially determined he was such in a proceeding
in rem, which impleaded all the world. Not
only is there no averment that he had agreed
to hold for the other heirs, but there is not one
fact or circumstance stated which could lead
them to believe so. He could not, without the
aid of perjury, have proved in his own name,
if he were not the sole occupant.

See Bernard v. Bougard, 1 Harr. (Mich.), 130.

We submit the Act of 1829 is a complete-
bar.

But the Act of May 15, 1820, is equally a
bar. In the circumstances of this case the dis-
abilities of non-residence, infancy and covert
ure are wholly immaterial. There can be no
successive disabilities, either in the same per-
son or set up in succeeding heirs: If the dis-
abilities of the first takers are removed, the
heirs must sue within 10 or 20 years (according
to the statute) thereafter. Thus, if A, an heir,
be a non-resident and dies, and his heir is also
a* non resident, the disability of the latter can-
not be added to that of his ancestor, but he
must sue within the time limited after the death
of the first taker; otherwise statutes of limita-
tion would be perpetual.

The Act of 1820 limits the right of action to
20 years, and the saving section is as follows:

''This Act shall not extend to bar any infant,
persons imprisoned, beyond seas, &c., &c.,
from bringing either of the actions before men-
tioned wimin the term before set and limited

486

for bringing such actions, calculating from the
time such impediment shall be removed."

WhUney v. WelA, 10 Ohio, 513.

Plaintiff resided out of, and had never been
within, the State of Ohio, and his ancestor and
those under whom the ancestor claimed, had in
their lifetime been in the same situation, and
the question was, whether the exception in the
law (which was like ours) saved the rights of
the plaintiff, who and whose ancestors had been
successixely and continually under the technic-
al disability of non-residence.

The court cites and analyzes Plowd., 358; 6
East. 80 ; 4 Miss. . 182 ; 2 Conn. . 27 ; and 3 Johns.
Ch., 129— which is an elaborate review of all
the old cases — and holds that the action was
barred immediately on the death of the ancestor
or first taker, provided twenty years had then
elapsed: that as the statute provided for no
period after that for the heir to sue, and saved
the rights only of the person to whom the right
accrued, there was no mode in which by mere
construction the heir could be allowed any time
after the lapse of twenty years : that the per-
son to whom the right accrued mi^ht have sued
within twenty years after his disability removed.
But this right did not accrue to the heir. On
page 517 it says, successive disabilities cannot be
set up where they exist in the same person, any
more than when one man attempts to protect
himself by one in himself, after the removal of
one in his ancestor.

The doctrine was strictly applied in a case in
equity in the same volume, Ridley v. HeUman,
10 Ohio, 524.

See, also. Thorp v. Raymond, 16 How., 247.

The court will not fall to perceive the vague-
ness with which the bill is drawn.

It makes no averment that these complain-
ants have been continuously out of the Terri-
tory and the State of Michigan. Such, it is
notorious, is not the fact. Thev all reside
within half a mile of Detroit, and though in
Canada, are and have for years, as have all
their ancestors, been weekly there. Hence the
statement that they have "resided" in Canada.

This may be true, and still if they have been
within the State, the running of the statutes
will be conceded. No authority need be cited
for this. The bill should have averred that
the complainants had not been within the State.
See the common precedents of pleadings, the
old exception of " beyond seas."

This answers the pretense that some of the
complainants are within the exceptions of the
Statute of 1820.

Still we repeat, that of 1829 has no excep-
tions.

That our holding is adverse, so as to start the
running of the statute, whether it be said there
is a trust or a tenancy in common, we cite a
few decisions. They show equally what we
cannot take time distinctly to argue, that this is
a case where the presumption of a grant is full
and clear.

Still, the main object is to show an adverse
holding within the Statute of Limitations.

Prescott Y.Nevers, 4 Ma8on,326 ; 2 Smith L. C. ,
450; Notes to Taylor v. Horde, 1 Burr, 60; JVV
pean v. Doe, 2 Mees. & W., 910.

If a party holds in a character incompatible
with the idea of a freehold in another, his hold-
ing is adverse. In order to ascertain the char-

1859.

Beaubien v. Beaubtrn.

199-209

acter of the holding, courts will look at the
party's conduct while in possession. The cases
are very fully cited in Davies v. Lowndes, 5
Bine.. N, C, 161; see, per Tindal, C/a. J,, p.
71 ; also, 72, 78, 74. For the evidence in the
case, see p. 60.

A patent from the •government invests the
patentee with seizure in law, so that he is con-
sidered in actual possession until an ouster by
a third person. 2 Smith, L. C, 469.

The patentee*s conveyance transfers a like
possession to his grantee.

See Barr v. OrcUz, 4 Wheat., 215; 2 Smith.
L. C. , 469.

PAge 472 cites the cases fully, to show that
one tenant in common, by claiming to hold as
owner of the whole, will constitute an ouster of
bis co-tenant.

See, also, Humbert v. Trinity Ch., 24 Wend.,
601, 602.

8. The Statute of Limitations of Michigan,
relied on in this case, is broader than the En-
glish Statute, and it is equally a bar in a court
of equity as at law; this court under this stat-
ute, can make no exception in cases of undis-
covered fraud.

Our Statute does apply equally to a court of
equity as to that of law. Its language is, "no
real or possessory action, of whatever name or
nature," shall be sustained after ten years from
1829. So is the Act. also, of 1820.

Farnam v. Brooks. 9 Pick., 242; Johnson v.
Ames, 11 Pick., 182, are directly in point, hold-
ing that a statute like this bound ex directu, both
courts of equity and law. alike.

Beckford v. Wade, 17 Ves., 87.

4. If it is held that this Act is to receive the
same construction as those which simply bar
specifically enumerated legal actions, and that
this court will, therefore,admit the same excep-
tions to its applications, such as trust and un-
discovered fraud, then we say the bill does not
set up facts to bring the case within these ex-
ceptions, and the remedy is barred by the stat-
ute under the general principle applicable to all
Statutes of Limitations.

Afoore v. Greene, 60 U. S. (19 How.), 69 Bu-
tane V. Vairian, I Eag. V. Ch.. Zid; Wagner v.
Baird, 7 How., 234; B^Mne v. GhUes, 10 Pet..
221; Chdmondeley v Glirtton, 1 Turn. &R., 107;
11 Eng. Ch., 68; Decouefie v. Savetier, 8 Johns.
Ch., 216; Beckford v. Wade, 17 Ves., 88.

Mr, Justice Nelson delivered the opinion of
the court:

This is an appeal from a decree of the Circuit
Court of the United States for the District of
the State of Michigan.

The bill was filed by the plaintiffs against the
defendants, claiming to be tenants in common
with them in a tract of land now lying in the
City of Detroit, each party deriving title from
a common ancestor, who made the settlement
as early as the year 1745, under a concession
from the French Government. The tract con-
tained five arpents in front on Lake Erie, and
eightv arpents back. The ancestor, John Bap-
tiste Beaubien, died in 1798, paving had the un-
interrupted possession of the property from the
time of the concession in l745, leaving a widow
and several children. Two of the sons. Antoine
and Lambert, resided with their father at the
time of his death, and continued in the posses-
See 28 How.

sion and occupation with their mother till her
death, in lt09.

In 1804, Antoine, one of the heirs in posses-
sion, applied to the Board of Commissioners to
adjust land claims, under the Act of Congress
of 1804, to confirm his claim to the land: and
which was confirmed accordingly, and a patent
issued in 1812. Acts of Congress, 28th March,
1804 (2 Stat, at L., 277): 3d March. 1805 (2 Stat.
at L., 843); 8d March, 1807 (2 Stat, at L., 437).

Latobert, the other brother, continued in the
joint occupation of the tract till his death, in
1815. and subsequently, in 1818, Antoine con-
veyed to th(i heirs of Lambert a moiety of the
premises; and the present occupants and de-
fendants are the descendants of the two brothers,
or purchasers from them under this title.

The tract constitutes a portion of the City of
Detroit, and is averred in the bill to have been
worth, at the time of the filing of it in 1855,
from a half a million to a million of dollars, ex-
clusive of the improvements.

The case was presented to the court Ixjlow on
demurrer to the bill, and on pleas by some of
the defendants, tis bona fide \)urchHserH for valu-
able consideration, without notice.

The plaintiffs aver in the bill, in addition to
the facts already stated, that they are the de-
scendants of the brothers and sisters of xVntoine
and Lambert, from whom the title of thedctend-
ants is derived; and that Antoine and Lambert
and their desct^ndants possessed and occupied
the tract in subordination to the right and title
of their co tenants; and that they were per-
mitted to possess and occupy the same in con-
fidence, that they so held the premises for the
common benefit of all parties interested. They
further aver, that they verily believed that the
brothers, Antoine and Lambert, and their legal
representatives, were acting in good faith in
this respect, until about the year 1840 they dis-
covered, after examination and inquiry into the
facts and circumstances, that they intended to
cheat and defraud them, and those under whom
they claim, of their just rights in the premises.

The bill further states that Antoine, in his
lifetime, and his son, who is one of the defend-
ants, and the heirs of Lambert, have conveyed
to divers individuals, rights in the said tract;
that, in some instances, they made donations
without consideration; in others, conveyances
for a pretended consideration; and thai there
now are in possession, as heirs, donees, and
purchasers of different portions of the premises,
several hundred persons, most of whose names
are unknown to the plaintiffs, which persons
set up claims and pretended rights and interests
therein. And further, that neither Antoine nor
Lambert's heirs, down to the year 1834, com-
mitted any open or notorious act, inconsistent
with the rights of the plaintiffs, or in any way
disavowed the trust and relation as co tenant,
or of brothers or coheirs, nor in any manner
asserted any title to the land, to the exclusion
of their rights.

The court decreed upon the demurrer to the
bill, and also upon the pleas, in favor of the
defendants.

The case comes before us on an appeal from
this decree. Antoine and Lambert, the two
sons of J. B. Beaubien, the common ancestor,
and those claiming utider them, have been in
the ezclusive possession of the premises in

487

881-401

SuFBEHS Court of the United States.

Dec. Trrm,

question since 1708, a period of sixty- two years
before the commencement of this suit. The
plaintiffs and those under whom they claim,
during all this time, as averred in the bill, re-
sided \n Canada, and as appears, most of them
in the County of Essex, in the neighborhood of
the premises. The four hundred arpents which,
in 179d, were worth some six or seven thousand
dollars, now embrace a portion of the City of
Detroit, and are worth, with the improvements,
over a million of dollars; and, for aught tkat is
averred in the bill or appears in the case, no
right has been set up by them, or by those
under whom they claim, to the title or the pos-
session of the premises, until the filing of the
bill ; no claim to the rents and profits, or to an
account as tenants in common, or for partition,
or to be admitted to the enjoyment of any
right as coheirs.

The case is one, so far as the title of the
plaintiffs is concerned, which depends upon the
establishment of an implied trust to be raised
bv the evidence, and hence falls within that
class of cases in which courts of equity follow
the courts of law, in applying the Statute of
Limitations. Kane v. Blaodgood, 7 Johns. Ch.,
91 ; Hovenden v. Annedey, 2 Sch. & Lef., 607.

There are two Acts of Limitation in the State
of Michigan, either of which bars the claim of
the plaintiffs:

1. The Act of May 15, 1820, which limits the
right of action to twenty years after the same
has accrued ; and,

2. The Act of November 15, 1829, which
limits the right of entry to ten years, if the
cause of action has then accrued.

The language is: "No writ of right or other
real action, no ejectment or other possessory
action, &c., shall hereafter be sued, &c., if the
cause of action has now accrued, unless the same
be brought within ten years after the passage of
this Act, any law. usage or custom to the con-
trary notwithstanding.

Thffte is no saving clause in this as to infants,
feme* covert, or residents beyond seas.

The pleader has sought to avoid the operation
of the limitation, by an averment of conceal-
ment and fraud on the part of the defendants,
and those under whom thev claim. The plaint-
iffs aver *' that, until withm the last few years,
your orators and oratrixes, and those under
whom they claim, verily believed and supposed
that the said brothers, Antoine and Lambert,
and their legal representatives; were acting in
good faith towaros them, but that, about the
year 1840, they discovered by information,
after examination and inquiry into the facts and
circumstances of the case, that the said brothers
Antoine and Lambert, and their legal repre
sentatives, intended to cheat and defraud them,
and those under whom they clidm, of their Just
riffhts in the premises."

This averment is too general and indefinite to
have the effect to avoid the operation of the
statute. The particular acts of fraud or con-
cealment should have been set forth by distinct
averments, as well as the time when discovered,
so that the court may see whether, by the ex-
ercise of ordinary diligence, the discovery might
not have been before made. Steams v. Page,
7 How., 819; Moorev, Greene, 19 How., 69.

Here, no acts of fraud or concealment are
stated; and the time when even an intention to

488

defraud, which is all that is averred, was dis-
covered, was some fifty years after the exclu-
sive possession, of the defendants and those
under whom they claim, had commenced ; and
this, although the parties lived in the neighbor-
hood, and almost in sight of the city, which
has, in the mean time., grown up on the prem-
ises.

We think the Statute of Limitation appUee,
and that the decree of the court below should be
affirmed.

Cited-16 Wall., 29; 6 Bunk. Reg., 428; 101 U. 8.,
140 ; 8 Saw., 615 ; 6 Saw., 879.

CHRISTIAN A, ZABRISKIE, Appt,

THE CLEVELAND, COLUMBUS AND

CINCINNATI RAILROAD CO., a»d

JOHN A. BUTLER bt al.

(See S. C, How., 381-401.)

BiU map be filed by stockholder, to restrain cor-
poration from performing contract which is ul-
tra vires — who may voluntarily become drfend-
ants — m&re approved form of suit — assent of
stockholders to contract, when it estops them —
wfien corporation and stockholders are estopped
to deny validity of contract,

A bill may be filed by stockholder to restrain a
railroad company from payinar the. Interest on
bonds which it had ffuttranti(>d ot another railroad
company, and to enjoin the corporation from ap-
plyinif any of its effects to their redemption, on the
ground that the contract is ultra vlrw of the cor-
poration, and cannot be oonflrmed against a dis-
sentinff stockholder.

Holders of the bunds may avail themselves of the
invitation of the bill, to become defendants, to all
their class, who assert that they are hfma fidA hold-
ers, and that their securities are valid obligations
of the com pan V.

The usual and more approved form of such a suit
is that of one or more stockholders, to sue in be^
half of the others.

Where the stockholden at a meeting, without
a dissenting vote, resolved: "That the indorse-
ment be approved, as the act of the company,"
although there was dissatisfaction openly expre8«ed
ed by a majority who declined to vote ; held, that
the resolution complied with the law of Ohio which
provided that no such aid should be furnished nor
any arrangement perfected until, at a meeting of
the stockholders, they shall have assented thereto.

•A court of equity will not hear a stockholder as-
sert that he is not interested in preventing the law
of the corporation from being broken.

Where these negotiable securities had been placed
on sale in the community, accompanied by the reso-
lution and vote inviting public confldenoo, and had
circulated without an effort on the part of the cor-
porators to restrain them, and men had invested
their money on the a«8uranoe they afforded, the
corporation was hold liable.

A corporation is held to a careful adherence
to truth in their dealings with mankind, and can-
not, by their representations or silence, involve
others in onerous engairements, and then defeat
the calculations and claims which their own con-
duct had superinduced.

Argued Mar, U, 1860. Decided Mar. 26, 1860.

APPEAL from the Circuii Court of the Unit
ed States for the Northern District of Ohio.
The bill in this case was filed in the court be-
low, bv the appellant, a stockholder of the C. ,
C. & C. R. R. Co., to enjoin the said Corpo-
ration from applying any of its effects to the re-
demption of certain bonds of another Corpora-
tion which it had indonted.

64 r. 8.

1859.

Zabriskie y. Clsvsland, Col. & Cnr. R. H. Co.

881-401

The court below allowed a temporary in-
JunctiOD, pending the suit. Subsequently a
final decree was entered, dissolving this injunc-
tion and dismissing the bill with costs, where-
upon the complainant took an appeal to this
court.

A further statement of the case appears in the
opinion of the court.

Messrs. J. P. Benjamin, W. S. C. Otis
and E. M. Stanton, for appellant:

The record presents the following questions
for the decision of the court:

I. Had the directors of the Cleveland, Colum-
bus and Cincinnati Railroad Company the
power to indorse the bonds of the Columbus,
Piquaand Indiana Railroad Company?

II. Were said bonds and the indorsement
thereon void in the hands of Neil & Dennison,
and of those claiming under them?

III. Are the defendants, Butler, Belknap, and
Callender, bona fide holders of said indorsement,
without any notice, actual t>r constructive, of the
circumstances under which the indorsements
were made, or of the want of power on the part
of the directors of the Clevaland, Columbus and
Cincinnati Railroad Company to make the
same?

IV. Has the complainant forfeited his right
to the relief which lie seeks, by any neglect on
his part?

1. The power to bind must be found, either
in the charter of the C, C. & C. R. R. Co., or
in some general law of the State, which has
been accepted by the entire body of the stock-
holders of the Company, and has thereby be-
come a part of its charter, or the indorsement
is vUra vires, and therefore void. The only
laws of the State in which it is claimed by any
of the defendants such power can be found, are
those of March 8. 1851,' 49 Ohio laws, 94, and
March 1, 1852, 50 Ohio Laws, 274.

In all questions of power arising under a
grant of corporate privileges, the test of the ex-
istence if the power is to be found in the in-
quiry whether the same is expressly granted or
whether it is incidental to any express grant of
power, and necessary to its accomplishment.

8tats of Maryland v. B. A 0. R. R, Co., 6
Gill, SeS; PerHm v. C. db D, Canal Co., 9 How.,
172; N. Y. Firemen Inn. Co. v. Ely, 2 Cow.,
678, 709; see, also, Dartmouth College v. Wood-
toard, 4 Wheat.. 636; BankofAugvMay. Barle,
18 Pet., 519; Bank of ChilUeothe v. Swayne, 8
Ohio, 257; 8 Gill <& J., 248; 22 Conn., 602; 29
Me., 123; 2 Kent's Com., 850; Ang. & A. Corp.,
111. 256-258.

The counsel then examined the powers of the
C. C. & C. R. R. Company under its original
Act of Incorporation of March 14. 1836, and
the Act to revive the original Act of March 12,
1846, referring especially to sees. 1, 8, 9, 12. 14,
16 and 17, of the Act of 1886, and sec. 6 of the
Act of 1845.

It is seen that no power was expressly con-
ferred upon the directors of this Company by
the Acts incorporating the same, to indorse the
bonds of individuals or other railroad compa-
nies for an^ purposes whatever, nor was any
such authority necessary to the construction or
operation of said road. The president and di-
rectors are merely the agents of the Corporation,
whose powers are conferred by the Acts of in-
corporation, and are subject to the same strict

See 38 How.

rules of construction as those of the body over
which they preside.

Beatty v. Knowler, 4 Pet., 152; Ang. & A.
Corp., sees. 280, 291, 299.

If the directors could indorse the bonds of
the C. , P. & I. R R. Co. , in order to bring busi-
ness over the road of that Company to Colum-
bus, thence to be carried over their own road to
Cleveland, thev could, for the like purpose, in-
dorse the bonds of any steamboat or transpor-
tation company, or incur any other pecumary
liability, in order to brinsr the business over
Lake Erie to Cleveland, thence to be carried
over their road to Columbus, or they could in-
dorse the bonds of manufacturing companies,
to enable them to erect manufacturing compa-
nies along the line of their road, because such
establishments would necessarily increase the
business and income of the same.

No subtilty of argument, no force of intel-
lectual power, no degree of professional reputa-
tion, are adequate successfully to maintain such
a doctrine, for it is opposed to the principles of
public policy, and the uniform authority of ad-
judicated cases.

62 U. S. (21 How.), 442; 5 Ohio Slate, 59; 4
Eng. Rv Cases, 513; 5 Eng. R'y cases, 741; 6
Eng. R'y Cases, 289; 8 Eng. L. & Eq., 144; 7
Eng. L. & Eq., 505; 16 Eng. L. & Eq., 180; 5
Barb., 218; 8 N. Y., 480; 8 Gill & J., 248; 1
Md. Ch., 542; 22 Conn., 1, 502; 5 Den.. 557; 7
N. Y. 828; 22 Conn., 552.

The Act of March 3, 1851, conferred no
power upon the C, C. & C. R. R. Co. to in-
dorse the bonds of the C, P. & I. R. R Co., for
the following reasons:

1. Because said Act has been repealed by the
Act of May 1, 1952, passed in accordance with
art. 18 of the Constitution, which took effect
Sept. 1, 1851.

The Act of May 1, 1852. created a new, en-
tire and independent system of railroad law,
and was designed, and did in fact operate, as a
substitute for said Acts, and thereby repealed
them.

It is well established on principle and author-
ity, that where a subsequent Act revises ante-
cedent Acts, and is intended as a substitute for
them, such subsequent Act repeals the anteced-
ent Act, although it contains no express words
to that effect.

7 Mass., 140; 12 Mass., 587, 545; 10 Pick.,
87; 20 Pick., 407,410; 16 Barb., 15; 5 Tex.,
418; 7 Md., 151, 159; 8 Tex., 62; 14 III, 834.

2. Because the General Assembly intended
to repeal said Act of March 3, 1851.

The principal objection to the argument in
favor of the repeal of the Act of March 3, 1851,
is founded upon sec. 16, art. 2, Constitution.
1851:

** No law shall be revised or amended, unless
the new Act contain the entire Act revived, or
the section or sections amended, and the sec-
tion or sections so amended shall be repealed."

The counsel referred to the case of Pine v.
Nicholem, 6 Ohio St., 176, and asserted of his
own personal knowledge, as well as from infor-
mation derived from the Judges of the Supreme
Court of Ohio, that the courts of the State of
Ohio uniformly hold that the foregoing provis-
ion does not forbid the repeal of the Statute by
implication.

See old Const, of La., title 6, sec. 119; The

489

881-401

fluPEKMra OoFRT OK TUB Unttkd States.

Dec. Tkrw,

new Const, title, 6 sec. 116; The Const, of Texas,
art. 7, sec. 25; The Const, of California, aft.
4, sec. 26; Const, of Maryland, art. 8, sec. 17;
Const, of Mich., art. 4, sec, 25; Const, of In-
diana, art. 4, sec. 21; Commercial Bank of
Natchez V. Markham, 8 La. Ann., 698; Bryan
V. Sandburg, 5 Tex., 418; Sogers v. Watrotis,
8 Tex., 62; Davie v. The Stale, 7 Md., 151, 159;
Spencer -7. The State, 5 Ind., 41; 4 California,
186.

The Act of March 8, 185 1 , did not create any
vested right in the C. , C. & C. Company, be-
cause there had been no acceptance of said Act
by the stockholders of the Company. It was a
mere license to the Company, and the Legisla-
ture could repeal it an any time.

G. dk L. R. B. Go. V. Kenton County Court,
12 B. Mon., 160.

8. Because the indorsement was not made
for any of the objects authorized by said Act.

Only those contracts could be made, and
only those companies could enter into them,
which were expressly authorized by the Act,
and even the mode of making the contract pre-
scribed by the Act must be strictly observed.

ffeadv. Providence Ins. Co., 2 Cranch, 127.

4. Because the indorsement was not made in
reference to said Act of March 8, 1851, as the
source of power, but with reference to the
charter. Although the directors of the C, C.
& C. R. R. Company in their resolution of June
16, 1854, proposed to submit their action in in-
curring the liabilities mentioned in said resolu-
tion, to a vote of the stockholders for their ap-
proval, under the 4th section of the Act of
March 8, 1851, all the liabilities mentioned in
said resolution were incurred by said board
without any reference to said Act as the source
of their power, but the reference made in said
resolution to said section was a mere after-
thought on the part of said directors, adopted
after the propriety of their conduct had begun
to be called in question, with a view to give to
their illegal and unauthorized acts the sem-
blance of legal authority, and thereby wrest
from the stockholders a vote of approval.

5. Because in making said indorsement there
was no compliance with the imperative pre-
requisite conditions of said Act.

8ee the 4th section of said Act; also. Com-
mimonere of Keneington v. Keith, 2 Pa. St.,
218; Webster V. French, \%l\\.,mi', Weaver y.
Cherry, 8 Ohio St., 564; Voorhees v. Bank, 10
Pet., 449; Stay ton v. HuUngs, 7 Ind., 144;
Southampton Dock Company v. Richards, 1
Scott, N. R., 219, 238; RexY. Loxdale, 1 Burr.,
447; Pearse v. Morris, 4 Nev. & M., 48; Fe-
versham v. Cameron, dec., 5Ene. R'y Cas., 492.

6. Because neither the complainant nor any
considerable number of the stockholders of
said Company, ever consented to said indorse
ment, either directly or by imphcation.

7. Because said Act of March 8. 1851, is un-
constitutional. The several Acts incorporating
the C, C. & C. R. R. Co. constitute a legisla-
tive contract, not only between the State and
the members of the Company as an organized
body, but also between each individual mem-
ber of the Company on the one hand, and the
aggregate numbers of the Company on the
other — between the individual stockholders
and the *' legal entity." This contract is as
completely under the protection of the supreme

490

law of the land, as a contract between the State
and a corporation.

See Bronson v. Kinzie, .1 How., 311; Mr-
Orcu^n V. Hayward, 2 How., 608; DarUnmiih
CoUegeY. Woodward, 4 Wheat., 614; Oordim
V. Appeal Tax Court, 8 How., 183; BankY.
Knoop, 16 How.. 869; Dodge v. Woolsey, 59 U.
S. (18 How.), 331; 4 Barb.. 64; 17 Johns., 195;
9 Wend., 851; 4 Harrington, 389; 5 Hill. 883;
27 Miss., 517; see. also, 80 Pa. St., 42; 29 Pa.
St., 146, 159; 28 Pa. St., 339, 852; llGa..438;
89 Me., 571; 1 N. H.. 44; 8 Mass., 268; 10
Mass.. 884; 10 Mass., 390; 2 Gray, 548.

Every individual who became a member of
the Corporation in question by subscribing to
its capital stock, undertook and promised to
pay the amount of his subscription for the
purpose of constructing and equipping said
roaa; and the Company undertook and prom-
ised to appropriate the same to the construc-
tion and equipment of said road, and to pay in
dividends to such member his ratable share of
the earnings of said road, beyond what might
be necessary to maintain said road and its
equipment, and to meet the necessary current
expenses of operating and running the same;
and each party acquired an indefeasible inter-
est in the undertaking and promise of the other
party. Whether this contract was expressed
or implied, is immaterial. It will not be con-
tended that the Legislature possessed the power
to exonerate such a subscriber from paying his
subscription. How, then, can the Legislature,
after such person has paid his subscription and
become entitled to his dividends, authorize the
Company to withhold the same and invest the
money in other railroad schemes?

A brief inquiry into the nature and extent of
the authority which the Legislature may law-
fully exercise over railroad companies, and also
into the nature and extent of the changes which
the Legislature maj make in the charter of
such companies, with the consent of the or-
ganized bodies respectively, without any well-
foundea legal objection on the part of any in-
dividual stockholder, will throw much iight
upon the particular subject now under consid-
eration, and tend to confirm the conclusion
that the Act of March 3. 1851, was an uncon-
stitutional enactment.

Grants to railroad companies are strictly con-
strued. Corporations take no ri|^hts from the
public beyond what the natural import of the
words used in their Acts of incorporation ra-
tionally and properly convey. These grants
are never construed to embrace public rights
and duties; nor can it be presumed that the
Legislature intended to part with the power of
accomplishing the very object for which rail-
road companies are created. This object is the
comfort and convenience of the public, and
whatever regulations tend to secure or promote
that object, the Legislature may enact, even
though these regulations may abridge the value
of the rights previously granted. It is upon
this ground that railroad companies may be
lawfully required to fence their roads, con-
struct cattle guards, diminish the speed of their
trains, and generally submit to such police reg-
ulations in respect to the management of their
respective roads as will most effectually secure
the safety of the persons and property trans-
ported over the same; and so long as the Leg-

64 U.S.

1859.

Zabriskie v. Cleveland, Col. & Cm. R. R. Co.

881-401

islature shall confine its action to the due exer-
cise of the rights granted, no question can arise
as to the lawfulness of such legislation.

The second branch of the inquiry depends
upon a very different principle. A railroad
charter once accepted becomes a contract; and
though the charter is an entirety, it is in fact a
two-fold instrument, both in regard to its sub-
ject and the parties thereto. So far as the
charter relates to the object of the grant, the
mode of carrying the same into execution, or
the organs through which the Company may
act, it constitutes a contract between the State
and the organized body; and it is competent
for the Company acting in the manner pre-
scribed in its charter, to accept of any amend-
ments touching these subjects which the Legis-
lature may propose, even though these amend-
ments are evidently less beneficial to the Com-
pany than the original Act. To this contract
the individual stockholder is not a party, ex-
cept as a member of the organized body. And
as it is a fundamental principle of all associa-
tions of this kind, that the act of the majority
is the act of all. the organized body will he
bound by the action of the majority, however
vehemently a minority of individual stock-
holders may dissent therefrom. It is upon the
ground that the contract is one between the
State and the Corporation as the sole parties
thereto, and not upon any implied assent on
the part of individual stockholders, on becom-
ing members of the Corporation, to such
changes as shall be auxiliary to the object of
the grant, that all the stockholders are bound
by such legislation. But. so far as the charter
relates to the obligation of the Company to ex-
pend all 4ts subscriptions solely for the speci-
fied purposes of the grant, or, in other words,
in the construction and equipment of its road,
or to the right of each individual stockholder
to his ratable share of the net earnings of the
Company in the shape of dividends, or to his
right to vote upon each share of stock owned
by him in the election of a board of directors,
it is a contract between each individual stock-
holder and the organized body, made in pur-
suance of the authority conferred by the State.
To this contract the State is not a party ; but
the individual stockholder on the one hand,
and all the other stockholders forming the or-
ganized body of the other, are the sole parties
to the conirct. And although the nature of
this contract is such that it cannot be changed
even by the consent of the parties to it, with-
out legislative permission, such permisAon does
not confer upon either party the authority to
make such change without the consent of the
other party. This contract between the indi-
vidual stockholder and the Corporation is< es-
sentially like a contract of copartnership, and
can no more be changed than any other private
contract, without the consent of the parties
thereto.

Natuach v. Irving ^ Gow. Part., Appendix,
p. 576; Livingston v. X^Tk^, 4 Johns. Ch , 573;
Aug. & Ames, Corp., sees. 586-538.

There are no difiiculties connected with this
question in its relation to this case, except
those which have arisen from the illogical
mode of treating it. If the Act of March 8,
1851, was intended to confer upon a majority
of the stockholders of the Cleveland, Colum-

See 88 How.

bus & Cincinnati Railroad Company, authority
to take the money due to the stocKholdcrs as
dividends, and to appropriate it to any of the
purposes mentioned in the 4th section of said
Act, against the consent of a single stock-
holder, though owning but a single share of
stock, the enactment transcended the constitu-
tional power of the Legislature and was void.

The obligation of the contract which relates
to a single share of the capitaj stock of a rail-
road company, can no more be impaired by
legislative interference than the obligation of
the contract which relates to the entire capital
stock. The protecting power of the Constitu-
tion extends to both alike.

Where a charter has been accepted, a subse-
quent amendment is nothing more than a propo-
sition to change the original contract in that
particular. If the propof^ed change relates to
the contract between the State and the organized
body, it must be accepted by the organized
body before it will have any binding force; but
if the proposed change relates to the contract
between the individual stockholder and the or-
ganized body, it must be accepted by both the
parties thereto, before it will have any binding
force. If the proposed change be not clearly
beneficial to the individual stockholder or to
the company, or if it extends the objects or in-
creases the liabilities of the company, or enlarges
the powers of the company over the stockhold-
ers, as in the present case, the acceptance of
such amendment by the party to be affected
thereby, must be clearly made out by the party
seeking to establish the same. It should be
established by cleal^ affirmative proof, that
knowledge of such change and of its effects
upon their interest was brought to the stock-
holders, and with such knowledge they delib-
erately assented thereto. Any rule short of
this will expose to imminent hazard the prop-
erty invested in the railroads, in this State, and
seriously impair the character of our legislation.

The foregoing argument against the consti-
tutionality of the Act of March 3, 1851, cannot
be overthrown or in the least degree shaken by
any reference to the decisions of the English
courts. That country has not any constitutional
check upon the supremacy of the law making
power. An Act of Parliament, of which the
terms are explicit, cannot be questioned in any
court of judicature.

Dwar. on Stat., 484; iSfewrw v. The South
Dewn Ky Co., 2 Eng. L. & Eq.,138; and Tfie
Great Western Ry. Co. v. Rmhout, 10 Eng.
L. & Eq., 72, are cases illustrative of this feat-
ure of English law.

See, also, an article in the Edinburgh Review,
October, 1854.

The Act of May 1, 1852, does not extend to
companies already incorporated, unless such
companies shall accept the provisions of said
Act. To make such acceptance legal and ob-
ligatory, the mode therein prescribed, sec. 76,
must be strictly pursued.

Ang. & Ames, Corp., sec. 291.

And it is sufficient to say that the learned
judge who decided this case in the circuit
court was unable to find any such acceptance,
and held that the C, C. & C. R. R. Co. did not
derive any power to make said indorsement
from said Act.

2. The bonds in question were void in the

49t

881-401

BiTPRBME Court op thb Unitbd Statbs.

Dec. Tbrit,

bands of Kiel & DenniBon, and as the indorse-
menl is merely accessary to the obligation of
the bond, it is void also. It is of the essence of
a guaranty, that there should be the valid obli-
gation of a principal debtor. If there be no
valid obligation, the guarantor is not bound

Warren Y. CraJbtree, 1 Me., 169; Huntress y.
Patten, 20 Me., 28: Gaither v. F, & M, Bank,
1 Pet., 87; Ha/rrison v. Haniid, 5 Taunt., 780.

The indorsement, which bears date six days
after the date of the bonds, is in form a guar-
anty, and is, in its legal effect by the laws of
this State, collateral to the obligation of the
bonds.

BrigM v. Carpenter, 9 Ohio, 139; BMnsonY,
AMI, 17 Ohio, 86.

The counsel also argued that Dennison was
a director of the Company when the purchase
and sale were made, and that hence, under the
second section of the Act of Dec 15, lb52, the
paper became void in his hands. Notes and
other commercial paper, when declared abso-
lutelv void by statute, are void even in the
hands of innocent holders.

Boot V. Oodard, 8 McL., 102; Bridge v. Bub-
bard, 15 Mass., 96;Zt/(kM V. Waul, 12 8. & M.,
157; 8 Kent's Com., 97; 1 Har. & G., 377.

As the bonds are void, so also is the indorse*
ment, because given to enforce such bonds.

8. The defendants, Butler, Belknap, and
Callender, are not bonafde holders of said in-
dorsement. The simple fact that the indorse-
ment was made by a railroad company, which
had no power to indorse the bonds of another
company unless such power be expressly granted
and strictly pursued, constituted a circumstance
of itself sufficient to put the purchasers upon
inouirv.

Under this head the counsel referred to 14
Ohio, 542; 12 Pick., 546; 8 Conn.. 386; 4 Mass..
870; 12 Johns., 806; 8 C. & P., 825; 2 Barn. &
C.,466; 8 Kern.. 809,821.

The Acts incorporating the Company, though
local.are nevertheless public Acts, and are notice
to allparties of the powers thereby conferred.

16 Eng. L. & Eq., 180; 11 Ohio, 276; 8 Mc-
L., 102; 7 Eng. L. & Eq.. 505.

It is a well settled rule of law, that a pur-
chaser under a power is bound to see that the
power exists.

18 Johns., 441; 2 Hill., 566; 1 Kern., 61. 76.

4. The complainant has forfeited no right to
relief by any neglect on his part. To constitute
such an estoppel, three requisites are indispens-
able:

Ist. Willful silence or misrepresentation by
a party who has knowledge of the fact.

2d. That the party alleging the estoppel was
ignorant of the truth and without the means of
information, and relied upon the faith of such
acts or declarations.

8d. That injury will result to the other party
by their denial.

11 Humph., 438; 7 Barb., 407; 10 Barb., 527;
5 Met., 478; 8 Wend., 488; 1 Story. Eq., 191,
204, 884, 894; 20 Conn., 98, 568; 24 Conn.. 588.
646; 1 Kern., 61.78.

A party who acts in ignorance of his own
rights shall not be prejudiced thereby.

83 Me.. 488; 3 Shep.. 827; 7 Tex., 288; 25
Pa. St., 409; 17 Conn., 855; 11 Humph., 188.

An estoppel is not to be favored or extended
by construction.

498

1 Dev. & B., 464; 8 Uill. 226; 3 Miss.. 529.

An admission or assertion of a conclusion of
law upon undisputed facts can never raise an
estoppel.

6Blackf., 889;2N. Y.,119.

If we apply the foregoing principles to the
contract of the complainant, we shall not find
in it a single requisite of an equitable estoppel.
It follows, therefore, that the complainant has
not forfeited in any degree his claim to the aid
of this court in the protection of his rights of
property, by anything which he has done or
omitted to do.

Messrs. T. Ewing^ and H. Stanbersr* f or
bondholders:

We claim that the acts of the Company were
legal, but if not, the complainant is bound by
his acouiescence therein. There is nothing to
invalidate the title of the bondholder, even in
strict law ; much less in court of equitv.

This guaranty is valid in the hands of the
present holders, independently of the Act of
March 4, 1851.

1. The subject-matter of the contract of
which the guaranty was part was within the
legitimate powers of the Corporation. The usage
be^an with the organization of the Company,
and we find it continued to within about ten
months of the time of taking our last testimony.

2. But if the object for which the guaranty
was made was without the legitimate powers
of the Corporation, yet the guaranty in form,
as it exists, was clearly within them. By the
mere fact of incorporation, this Railroad Com-
pany is vested with all the powers necessary to
carry into* effect th« object of its creation — the
ordinarv powers of corporations applied to and
controlled by that object. ,

It has the general power to contract and be
contracted with. Ang. & Ames, Corp., 100.

The guaranty which a court of equity is
asked to compel the Railroad Company to re-
pudiate, is clearly within the general power to
contract. The Company might make a bond,
it might take a bond, it might guarantee and
sell the bond which it had taken. These are
correlative powers, and the possession of the one
implies the other. There is, therefore, nothing,
in the mere fact or form of the guaranty .which ts
out of or beyond the general powers of the Cor-
poration. It is quite immaterial whether there
be one bond or four hundred, whether^he same
be large or small, provided it do not exceed the
sum to which the utmost indebtment of the
Corporation is limited by its charter. The
bona fide holder for a valuable consideration of
a bond or contract, the execution of which is
within the power of the Corporation, has noth-
ing to do with the object or purpose of its ex-
ecution. It is good in his hands, no matter
what the purpose for which it was given, unless
some positive statute declare it void. If the
object be unauthorized, the directors may be
enjoined from entering into the contract or
making the indorsement, as in the case of Col-
man V. Eastern Counties Ry Co,, 4 fing. R'y
Cas., 518, 529, and Cohens y, Wilkinson, 5 Eng.
R'y Cas., 741. Where the court specially con-
fined their action to restrain an illegal purpose
not consummated, while it impliedly admits the
binding effect of actual contracts, legal on their
face, though made in furtherance of an unau-
thorized object. P. 760.

64 U.S.

1859.

ZaBBIBKIS v. CLE72XAND, COL. & CXN. R. R. Co.

881-101

We can find no case in which the negotiable
paper of a private corporation, legal uoon its
face, in the hands of a bona fide holder for
valuable consideration, without notice, has
been holden void at law, or set aside in chan-
cery, because the object for which it was
given was without the power of the corporation
giving it. Can it be doubted that the Cor-
poration had power to make this identical
guaranty in form and substance, if made for a
proper object? Then, as the Corporation had
power to make this very paper m form and
substance as we now have it, neither the Cor-
poration nor any of its members can object
that they made it for an unauthorized object.
It is the legality of the act of which we must
inquire, not the wisdom or purity of the mo-
tive. We cannot conceive a case in which a
court of equity will compel a private corpora-
tion to repudiate a contract legal on its face,
the benefit of which it has received and re-
tains, and on which innocent third persons
have relied.

See Oraham v. Birkenhead, de., R, B, Co.,
6 £ng. L. <& £q., 182.

2. Hut we contend that the end and aim, the
object and purpose to be effected by this con-
tract, was legitimately within the powers of
the Corporation under and by virtue of the Act
of March 8, ISai.

The 4th section of that Act was re-enacted
in ?iaee verba, by section 24 of the Act of Mav
1, 1852; but the last named Act has no repeal-
ing clause. If, then, it applies to and covers all
the cases to which the 4th section of the Act
of 1851 applies, it is immaterial whether that
section is repealed or not. If it does not extend
to the same cases, then it is not a repeal. The
Constitution of the State, however, art. 2, sec.
16, settled the question that is not a repeal.

III. But it IS contended on the other side
that the 4th section of the Act of 1851, and its
re^nactment in 1852, so far as it applies to pre-
existing corporations, impairs the validity of
the contract of subscription, and is, therefore,
as to them, unconstitutional and void.

We do not readily i)erceive how a law, per-
missive merely, not compulsory, authorizing
this Corporation to do an act which we admit,
argurnenti gratia, it was not authorized to do
before, violates the contract of incorporation,
or the contract between corporation and cor-
porators. The mere extension of privile^ by
law is not a violation of the contract of incor-
poration.

Oray v. The Mdnonga?iela Nat. Co,, 2 Watts
&S.,152.

The decision in the case of The Hartford d N.
H. B. R Co, V. OroetoeU, 5 Hill. 388, relied on b^
the complainant's counsel, bears strongly on this
case.

In the case, we have no doubt that a stock-
holder might, by bill in chancery presented in
due time, have enjoined and prevented the ac-
ceptance of the new power and the action un-
der it. But he could not, thereby, suffer the
directors to accept the newly conferred priv-
ileges, employ workmen auci build boats, and
then enjoin the Corporation from paying for
them. If he consent to the contract, or ac-
quience in it until third persons have become
involved, his remedy is gone. The powers
granted by the Act of 1851, do not extend to a

Bee 28 How.

new undertaking, but to a more full and per-
fect means of executing the original charter;
and it is purpose of the Corporator to see that
the additionsJ powers are not exercised to their
injury.

If they neglect this, they, and not innocent
third persons, must suffer the consequence of
their laches.

Mom v. Bos9ie Lead Mn, Co,, 5 Hill, 141;
Jackson v. Lamphire, 8 Pet., 291; Mumma v.
The Potomac Co,, 8 Pet., 286.

If we be not sustained under the general
powers of the Corporation, and if the legality
of the power for which the guaranty was madfe
must be shown in order to sustain it, then we
claim and will endeavor to show, that the tradsac-
tion out of which the guaranty arises, comes
within the provisions of the 4th section of the
Act of March 4, 1851. Under this law, the
purpose with which the aid is to be furnished
to another road, must be that of forming a run-
ning connection with the road aided. This
gives the power, and it is no matter whether it
be wisely exercised or not; and if such be its
apparent object and the connection actually
exist, it is quite immaterial, so far as innocent
third persons are concerned, whether the aid
was so applied in good faith or not. We sup-
pofle that in order to make out the casus foBderis
It is not essential that the road granting the aid
should connect immediately with the road fdd-
ed. If they connect through an intermediate
road, it is sufficient. The contract, so far as it
affects the Indianpolis & Bellefontaine R. R
Co., has been complied with by change of
gauge, so as to make perfect runninir connec-
tion from Cleveland to Indianpolis by the
Columbus and Piqua road. It has been com-
plied with by the removal of the injunc-
tion by them obtained against the requisite
change of gauge, and by forming the re-
quired connection at Columbus, and the C, C.
& C. R. R. is enjoying the full benefits of the
contract, of whicn this guaranty is the con-
sideration. The arrangement entered into in
this case is quite within the powers of the Com-
pany. It may be viewed in two aspects, as it
evidently was done with a double purpose.

The bonds issued by the C, P. & I. R. R.
Co. was stated by the bill to have been issued
to raise money to complete the road. That
road connects directly with the C, C. & C.
road. This makes a casus fcBderis. The ob-
ject in extending the aid to the C. P. & I. was
to form a connection with the last-named road.
But there was also another contract with other
parties, which formed one of the motives for
the guaranty, and which comes under the sec-
ond clause of this section, namely: an arrange-
ment between two railroad companies whose
lines were so connected for their common bene-
fit, consistent with and calculated to promote
the object for which they were created. The
C. P. & I. H. R Co. had a contract with the
I. & B. R. R. Co., by which the two roads
were to connect on the state line at Union with
a gauge of 4 feet 8i inches, and thus run in
connection from Columbus to Indianpolis.
The guage of the denfendant was 4 feet 10
iuches, and it connected Gallon with the I.
& B. R. R. of like gauge, which gauge
terminated at Union, on the state line. The
gauge being there broken, cars coming on this

483

381-401

SUFilSMS CoUliT OF THE UNITED StATBB.

Dkc. Tebm,

road could not p&as on to Indianapolis without
a change of gauge in the Indianapolis road.
That road entered into a contract with the de
fendant. the C, C. & C. R. R., by which it
agreed to change its gau^ to conform with
theirs, and run in connection with them. The
parties were proceeding to carry out this con-
tract, when the C, P. & I. R. R. Co. filed
its bill in chancery and enjoined the change.
To get rid of this injunction, and get a continu-
ous line to Galion, and thence to Indianpolis
and westward, was one of the leading objects
of this guaranty. This running connection is
proved to have been of great value to the de-
fendant railroad, and all parties connected
with it ought to be grateful to the complainant
for abstaining to file his bill until the change of
gauge and the running connection were com-
pleted. It can -now injure none but the bond-
holders. Had he filed his bill and obtained an
injunction 20 months earlier, it would have
greatly injured the road and depreciated the
value of his own stock.

These arguments we supposed to be fully
sustained by the two clauses of the statute above
cited.

V. The counsel on the other sidt further
contend that the whole transaction is void un-
der the 4th section of the Act of March 8. 1851,
because the directors of the Company act.ed in
the matter before they convened the stock-
holders to vote upon It.

The statute does not say who shall take the
initiative, the directors or the stockholders, but
that "no such aid shall be furnished," or "ar-
rangement perfected," without a vote of the
stockholders. There is no provision in the Act
that the vote of the stockholders shall be first
in order. The reverse is implied in the language
of the statute, and its sole requisition is that no
such act of the directors shall be valid without
this sanction of the stockholders. All the sales
of bonds appear to have been made after, and
upon the faith of, the resolutions of the stock-
holders.

VI. But it is contended that the contract un-
der which those bonds were guarantied is not
obligatory on this Company, because it does not
appear to have been sanctioned by a vote of the
stockholders of the other companies.

The contract was sanctioned by a vote of the
stockholders of the B. <& I. R. R. Co. on July
20, 1854, and it has been fully complied with
by that Company and also by the C, P. & I.
Co. The stockholders of this Company cannot
now make this an objection, for performance
is in equity equivalent to consent. On each of
the above grounds we resist the prayer of the
bill, and we think a court of equity cannot
grant the injunction askd. The complainant
road had received, and is daily receivmg, the
benefit of the contract which it is required to
repudiate. The contract cannot be rescinded;
indeed, there is no case made of prayer inserted
for rescission. It is simply a prayer to compel
it to repudiate, and to permit to it enjoy the
benefit of the contract. The Railroad Company
does not ask this. It is fully impressed with
the obligation of its contract, and will not vio-
late its faith unless compelled to do so. It is
a stockholder who wants a larger dividend, who
comes into equity to compel repudiation — a
8tockhol()er who, by his proxy, was present at

494

the meeting which voted the contract, and who
made no oblections — a stockholder who, with
a full knowledge of all the facts, lay by till a
contract was irrevocably executed by the other
parties thereto, and until the guaranty bonds
were in the hands of bona fide purchasers, and
then filed his bill. If every act of the directors
was unauthorized and illegal, we think equity
could afford him no relief. There is a superior
equity on the other side.

Mr Justice Campbell delivered the opinion
of the court:

The appellant is a stockholder of the Cleve-
land, Columbus & Cincinnati Railroad Com-
pany, a corporation existing by the law^ of Ohio,
and empowered to construct a railroad from
Cleveland south, and having a capital of more
than $4,300,000 distributed among above nine
hundred stockholders. The appellant com-
plains, that this Corporation, in April. 1854, il-
legally indorsed a guaranty upon four hun-
dred bonds of 1 1,000 each, with interest cou-
pons at the rate of seven per cent, per annum,
payable to Elias Fossett or bearer in Wew York,
in 1869, that had been issued in that month by
the Columbus, Piqua& Indiana Railroad Co..
and which were also indorsed by the Belief on-
taine <& Indiana Railroad Co., and the India-
napolis & Bellefontaine Railroad Co., to the
prejudice of the stockholders, and the burden
of the resources of the said Cleveland Corpora-
tion. The object of the bill was to obtain a
decree to restrain the Company, pending the
suit, from paying the interest, and upon a dec-
laration of the illegality of the bonds, to enjoin
the Corporation from applying any of its effects
to their redemption.

The three defendants are holdera of five of
the bonds, who have availed themselves of the
invitation of the bill to all their class to become
defendants, and who assert that they are bona
fide holders, and that their securities are valid
obligations of the Company. This issue of the
obligations of these four Corporations originated
in a negotiation among their officers, in 1854.
to determine upon a uniform gauge for all their
roads, and to promote intimate connections in
their transit operations.

The Piqua road and the Indianapolis rood
were projected to extend from Columbus to
Indianapolis (one hundred and eighty-five
miles), and were partially finished at a gau^
of 4 feet 8| inches, and had agreed to maintaui
this ^auge for their common interest. At Co-
lumbus tliey were to connect with roads of the
same gauge, heading through Ohio and Penn-
sylvania to Philadelphia.

The Cleveland and the Bellefontaine rail-
roads were constructed upon the Ohio gauge,
of four feet ten inches,and the Companies were
interested to detach the other Corporal ions from
their Pennsylvania connection, aud to combine
them with their own and other com panic's,
whose roads passed through Cleveland, along
the shores of the lakes into New York, aiul
connected there with the railroad and canal
communications of that State. The Piqua
road was at this time finished only forty-six
miles, and the Company was embarrassed, aud
their work suspended for want of money. The
Indianapolis Company were willing to change
the gauge of Uieir road to the Ohio pattern, but

64 U. 8.

1859.

Zabhi6KU v. Clkvklakd, Col. & Cm. K. R. Co.

3ol-401

were witheld by their contract with the Piqua
company. In January, 1854, the Piqua com-
pany appointed a committee from their board
of directors to negotiate for money or fiecurities
sufficient to complete their road, and to dis-
charge their debts, other than bond debts, and
were authorized to prepare six hundred bonds
of $1,000 each, of the usual form, to be secured
by a mortgage, being the third mortgage of
their franchises and road. They were also cm-
powered to determine the gauge of the road,
and either to maintain their existing connec-
tions, or to consent to the adoption of the Ohio
gauge in conjunction with the Indianapolis
Company.

This committee opened their negotiations in
Philadelphia, but pending these the vice-presi-
dent of the ( 'Ompany (Dennison) " sounded the
inclinations" of the Cleveland Company, by
Intimatinfi: that if that Company would indorse
a portion of the bonds, and talcc some of the
stock of the Piqua Company, the Pennsylvania
connection would be abandoned. Some assur-
ance having been given by the president of the
Cleveland Company to him. he. with the finan-
cial agent of the Company (Niel) arranged a
contract with the committee of the Piqua Com-
pany to purchase the six hundred bonds, to
guaranty a subscription for $50,000 of their
stock at par, and to assume the control of the
settlement of all controversies and questions
concerning the gauge of the road. These nego-
tiations were pending from the first week in
February until the 25th of the month, when
the contract w^as reduced to writing, and the
price to be paid settled at $305,000. On the 7th
of March, 1854, Dennison and Niel concluded
a contract with the three Corporations, Cleve
land, Indianapolis and Bellefontaine, by which
they consented to the permanent adoption of
the Ohio gauge for the Piqua and Indianapolis
roads, and those Corporations agreed to guar-
anty four hundred of the bonds of the Piqua
Company before mentioned, and to subscribe
for $30,000 of their stock. This contract was
reported shortly after to the boards of the sev-
eralo Crporations, and approved, and the bonds
were issued and indorsed, and the stock sub-
scribed for in April, 1854. The tracks of the
several roads were altered to conform to this
arrangement shortly after. The negotiations
and contracts of Dennison and Niel were for
their own account and benefit. The testimony
is conclusive of the fact that the members of
the Piqua board were Ignorant of the assur-
ances they had received of the disposition of the
Cleveland and other companies to enter into
such engagements. Dennison had been a di-
rector of this Company from its organization;
but before signing the contract of the 25th
February, with the Piqua Company, he ex-
hibited a written resignation, and that resigna-
tion was entered upon the mmutes of the board
before the approval of the contract or the issue
of the bonds to him and his associate.

This transaction was reported to the stock-
holders of the indorsing Corporations m July,
1854, and accepted by them as the act of the
Company. The board of directors of the Cleve-
land Company, on the 16th June, resolved,
that there should be submitted to a vote of the
stockholders, at a meetin|^ on the Ist July
jfroxinw, four propositions tor the aid of other

boe 28 How.

roads desiring to form a connection with that
Company, under the 4th section of a statute of
Ohio, passed 8d March, 1851. Among these
was the indorsement of four hundred bonds of
the Piqua Company. Notice was (riven of this
meeting by advertisement in the daily papers
of Cleveland and Columbus, and a daily paper
in New York, but it did not disclose the object
of the meeting. Above eighteen thousand
shares of stock were represented, and the fol-
lowing resolution was adopted without a dis-
senting vote:

Resolved, ' * That the indorsement jointly and
severally with the Bellefontaine and Indiana
Railroad Company, and the Indianapolis and
Bellefontaine Railroad Company, of $400,000
of the third mortgage b<mds of the Columbus,
Piqua & Indianapolis Railroad Company, by
order of the board, March 6th, 1854, be, and the
same is approved, adopted, and sanctioned, by
this meeting, as th^ proper act of this Com-
pany." But, although there was no dissent in
the vote, there was dissatisfaction openly ex-
pressed by the proxy of the appellant, and of
a majority of the stockholders represented at
the meeting, and who declined to vote on the
resolution. The bonds were offered for sale
in the City of New York in the summer of
1854 and the spring of 1855. under an uncon-
tradicted representation of their validity
through the votes above mentioned, and were
freely purchased at fair prices. The interest
was paid by the Piqua Company until October.
1855, when the installment due in that month
was discharged by the indorsers in equal pro-
portions. In the spring of 1856, the Piqua
Company having become insolvent, the appel-
lant served a notice upon the Cleveland Com-
pany not to pay any portion of the principal
and interest that might become due on tho
bonds, and required them to sue for the can-
celation of their guaranty, and demanded his
share of the profits of the Company, without
the reservation of any part for the payment of
the bonds, and immediately after filed the bill
in this cause.

He contends that the sale by the Piqua Com-
pany to Dennison and Niel is void, under a
statute of Ohio that prohibits any director of a
railroad company to purchase, either directly
or indirectly, any shares of the capital stock,
or any of the bonds, notes, or other securities,
of any railroad company of which he may be a
director, for less than the par value thereof;
and it declares: " That all such stocks, bonds
and notes, or other securities, that may be pur-
chased by any such directors for less than the
par value thereof, shall be null and void."

He insists that the indorsement of the bonds of
the Piqua Company was of no advantage to
the Cleveland Company, but was merely to
consummate the success of a speculation of
Dennison and Niel — ^a speculation reprobated
by tiie law of Ohio; that the Cleveland Com-
pany were not empowered by their charier to
guaranty the contracts of corporations or in-
dividuals; that this indorsement was not re-
quired for the construction of the road, or in
the course of the business of the Company, or
to promote an end of the incorporation ; and
that none of the Acts of the Gknei-al Assembly
of Ohio authorize it.

He denies any efficacy to the vote of the stock-

495

8j1-401

BUPaSMB COUUT OF THB UlTITBD STATBB.

Dj£C. Tkuu,

holders in July, 1854, because the notice was
insuflScient. in the length of the time and in the
failure to disclose the purpose of the call; that
more than one half of the stock of the Com-
pany was not represented, and two thirds of
that present dia not vote, for the want of
proper information and counsel on the subject.
That the meeting were ignorant of material
facts; they were not advised of the relations of
Dennison and Niel to the Piqua Company, and
their connection with the bonds, when the vote
was taken; and were deceived as to the condi-
tion of the Pique Company. He avers that
the bondholders are chargeable with notice of
the fact that the indorsement was made before
the meeting of the stockholders, and by the au-
thority of the directors only.

The testimony does not convict the defend-
ants— the bondholders — of complicity in the
negotiations or contracts that preceded the
issue of the bonds, nor does any equivocal cir-
cumstance appear in their purchase of those se-
curities. It is proved that it is a common prac-
tice for railroad corporations to make similar
arrangements to enlarge their connections and
increase their business. The Cleveland Com-
pany had encouraged this practice by precept
and example. In a report of their board of di-
rectors, in January, 1854, the Company were
informed of their establishment of a Ime of first-
class steamboats between Cleveland and Buf-
falo, and of their guarantv of the bonds of
other companies for |300,000; of subscriptions
for stock to the extent of $100,000, and of
promised aid to still another company. They
say: "These companies may need additional
assistance, and others proposing to intersect
ours may, by a moderate loan of money or
credit, be enabled to finish their roads, and es-
tablish with us business relations, for the mut-
ual benefit of both parties, while the advances
on our part may be made safe and remunera-
tive. Unless advised of your disapprobation,
the board will continue to pursue this policy."

No such disapprobation was expressed as to
check the board of directors until the guaranty
of these bonds had been sanctioned, in July,
1854, at a meeting of the stockholders. The
discussion was confined to the circle of the Cor-
poration, until after the failure of the Piqua
Company to pay a second installment of inter-
est. Then the appellant filed this bill.

The frame of the bill implies that this con-
tract exceeds the power of the Corporation,
and cannot be confirmed against a dissenting
stockholder. His authority to file such a biu
is supported upon this ground alone.

DiMige v. WooUey. 18 How., 331; MoUy.
Penn. R. R. Co,, 30 Pa., St., 1; Mander^on v..
Commercial Bank, 28 Pa. St., 879.

The usuii^ and more approved form of such
a suit being that of one or more stockholders
to sue in behalf of the others.

Betnan v. Rafford, 1 Sim. N. S., 550; Winch
V. Birktnhead H, Railway Co., 5 DeG. & S..
562; Mosley v. AUton, 1 Phil., 790; Wood v.
Draper, 24 Barb., 187.

f ^A court of equity will not hear a stockholder
assert that he is not interested in preventing
the law of the corporation from beins broken,
and assumes that none contemplate advantages
from an application of the common property

496

that the constitution of the company does not
authorize.

The powers of the Cleveland Company are
vested in a board of directors chosen from the
Company. Thejr are authorized to construct
and maintain their road, and for that purpose
can employ the resources and credit of the
Company, and execute the requisite securities,
and are required to exhibit annually a clear
and distinct statement of their affairs to a meet-
ing of the stockholders. In the year 1851 a
general law relating to railway companies em-
powered them "at any time, by means of their
subscription to the capital stock of any other
company, or otherwise, to aid such company
in the construction of its railroad, for the pur-
pose of forming a connection of said last men-
tioned road with the road owned by the com-
pany furnishing such aid; * * ^ and em-
powered any two or more railroad companies,
whose lines are so connected, to enter into any
arrangement for their common benefit, consist-
ent with and calculated to promote the objects
for which they were created: Provided, that
no such aid shall be furnished nor any * *

* arrangement perfected until a meeting of
the stockhholders of each of said companies
shall have been called by the directors thereof,
at such time and place and in such manner as
they shall designate; and the holders of at least
two thirds of the stock of such company repre-
sented at such meeting in person or by proxy,
and voting thereat, shiul have assented thereto."

This section was re-enacted in the following
year, in a j^neral Act for "the Creation
and Regulation of Incorporated Companies in
Ohio," which last Act provides that "an^ exist
ing company might accept any of its provisions,
and when so accepted, and a certifi^ copy of
their acceptance filed with the Secretary of
State, that portions of their charters inconsist-
ent with the provisions of this Act shall be re-
pealed." Curwen's Ohio Laws, 949, 1110.

It is contended that neither of these Acts
was accepted by the Cleveland Company; that
the Act of 1852 superseded that of 1851, and
that the former could be accepted and become
obligatory upon the Company only in the mode
it prescribed. Both of these are general Acts,
and were designed to enlarge the faculties of
these Corporations, so as to promote their util-
ity, and to enable them to accomplish with
more convenience the obiects of their incor-
poration. This Act of 1851 does not devestanv
estate of the Company, or make such a rad-
ical change in their constitution as to authorize
the members to sav that its adoption without
their consent is a dissolution ot the body. But
for an intimation in an opinion of the Supreme
Court of Ohio (Chapman v. M. 22. A L. E. R,
R. Co., 6 Ohio St.. 119) to the contrary, we
should have been inclined to adopt the conclu-
sion, that the Act of March, 1851, might be op-
erative without the specific or formal assent of
the corporations to which it refers, and was not
superseded by the Act of 1852. as to pre-exist-
ina: corporations.

Everhart v. P. <S> W. C. R. R. Co., 28 Pa.
St., 340; Cray v. Monongahela N. Co., 2 W. &
8., 116; Great W, R. R. Co. v. RushotU, 5 De-
G. & S., 290.

The Jurisprudence of Ohio is averse to the

64 U. S.

1869.

Zajiribkib v. Clbv£land, Col. & CiN. R R. Co.

881-401

repeal of statutes by implication ; and in the
instance of two affirmative statutes, one is not
to be construed to repeal the other by implica-
tion, unless they can lie reconciled by no mode
of interpretation. Cass v. Dillon, 2 Ohio St.,
607.

The learned compiler of the laws of Ohio re-
tains the Act of 1851 as valid, in respect to the
corporations then existing. But as between the
parties on this record , the acceptance of those
acts may be inferred from the conduct of the
corporators themselves. The Corporation have
executed the powers and claimed the privileges
conferred by them, and the^ cannot exonerate
themselves from the responsibilitv, by asserting
that they have not filed the evidence required
by the statute to evince their decision. The
observations of Lord St. Leonards in the House
of Lords {Bargate v. Shortridge, 5 H. L. Ca.,
297), in reference to the effect of the conduct
of a board of directors as determining the lia-
bility of a corporation, are applicable to this
Corporation, under the facts of this case. "It
does appear to me," he says, *' that if, by a
course of action, the directors of a company neg-
lect precautions which they ought to attend to,
and thereby lead third persons to deal together
as upon real transactions, and to embark mon-
ey or credit in a crncem of this sort, these di-
rectors cannot, after five or six years have
elapsed, turn round, and themselves raise the
objection that they have not taken these precau-
tions, and that the shareholders ought to have in-
quired and ascertained the matter. ♦ ♦ ♦ The
way, therefore, in which I propose to put it to
Your Lordships, in point of law. is this : the ques-
tion is not whether that irregularity can be con-
sidered unimportant, or as being different in
equity from what it is in law, but the question
simply is, whether, by that continued course of
dealing, the directors have not bound them-
selves to such an extent that they cannot be
heard in a court of justice to set up, with a
view to defeat the rights of the parties with
whom the^ have been dealing, that particular
clause enjoining them to do an act which they
themselves have neglected to do."

This principle does not impugn the doctrine
that a corporation cannot vary from the object
of its creation, and that persons dealing with a
company must take notice of whatever is con-
tained in the law of their organization. This
doctrine has been constantly affirmed in this
court, and has been engrafted upon the com-
mon law of Ohio. Pearce v. M. dt 1, R. B.
Co., 21 How., 441; Straus v. Ea^le Ins. Co., 5
Ohio St. , 59. But the principle includes those
cases in which a corporation acts within the
range of its general authority, but fails to com-
ply with some formality or regulation which it
should not have neglected, but which it has
chosen to disregard.

The instances already cited of the course of
dealing of this Corporation, and others of a sim-
ilar nature, of which there is evidence in the
record, sulficiently attest that the Corporation
accepted the Acts of 1851 and 1852 as valid
grants of power; and it would be manifestly
unjust to allow it to repudiate the contracts
which it has made, because their acceptance of
these grants has not been clothed in an authentic
form. The Supreme Court of Ohio have rec-
ognized the obligation of corporators to be

See 2Q How. U. S., Book 16.

prompt and vigilant in the exposure of illegal-
ity or abuse in the employment of their cor-
porate powers, and have denied assistance to
those who have waited till the evil has been
done, and the interest of innocent parties has
become involved. Chapman v. Mad River E.
R. R. Co., 6 Ohio St.. 119; The State v. Van
Home, 7 Ohio St., 827.

We conclude that the validity of the con-
tract of the Cleveland Corporation, under
the circumstances, must be determined on the
assumption that it was authorized to exert the
power conferred in the 4th section of the Act
of March, 1851, and 24th section of the Act of
May, 1852.

In deciding upon the validity of this con-
tract, we deem it unimportant to settle wheth-
er DennisoD was a director of the Piqua Com-
pany the 25th February, 1854, when he sign-
ed the contract with the committee of the Pi-
qua Board of Directors; or whether that con-
tract was affected by its ratification by the
board after his resignation was entered upon
the minutes, or by the subsequent consummation
of the contract, in the reciprocal transfer of the
securities and payment of the consideration; or
whether, as matter of law, the bonds of the Pi-
qua Company, commercial in their form, pay-
able to another party, and issued after his res-
ignation, are null and void.

The contract of the guarantors, indorsing the
bonds, is a distinct contract, and may impose
an obligation upon them independently of the
Piqua Company. In the absence of a personal
incapacity of Dennison to deal with his princi-
pal, the issue of the bonds by the directors of
the Piqua Company is an ordinary act of ad-
ministration; and bonds in such form, it is*ad-
mitted, "challenge confidence wherever they
gjo." We percieve no illegality in their delega-
tion to them of the power to determine wheth-
er the Ohio or Pennsylvania g^uge should be
adopted, or their sale of the privilege to adjust
the controversies and questions relating tait.
Their adoption of the Ohio gauee was a solu-
tion of all the difficulties; it enabled the Indi-
anapolis Company to adopt it; it superinduced
the resulting consequence of running connec-
tions among the four Corporations; it secured
profits to the guarantors; it imposed the bur-
den of relaying their track upon the Piqua
Company. Their contract to adopt this gauge
and to form the corresponding connections is a
valuable consideration, and the Piqua Compa-
ny have fulfilled the engagements that Denni-
son and Niel were authorized to stipulate on
their behalf. There is testimony that the
bargain was a hard one for the guarantors, and
argument that it was probably an unjust one,
and possibly fraudulent in reference to the
stockholders of the Cleveland Company. But
the bill is framed, not lo obtain relief from er-
ror or fraud in the administration of the pow-
ers of the Company by their trustees, but against
the exercise of powers that did not belong to
the Corporation, and which the body could not
confirm, except by a unanimous vote. Foss v.
HarbottU, 2 How., 461; 2 Phil. Ch., 740.

We proceed to consider of the effect of the
sanction given to the arrangements of the
Cleveland Company, through Dennison and
Niel, with the Piqua Company, by the vole of
the meeting in July, 1854. It is objected that

a2 497

401-46»

BUFBBMB Ck>UBT OF THB UnITBD BTATBS.

Dec, Tsbm,

the notice of this meeting was insufficient, and
that, unprepared as the corporators were, the

groxy appointed by the non-resident stock-
olders was overpowered by the heat and pas-
sion of the directors and their adherents. There
is some force in the complaint that this meeting
was not conducted witli a due respect for the
social rights of a portion of the stockholders.
But the time, place and manner of the meeting
were appointea by the directors, as the Act oi
1851 permits. The proxy of the appellant was
there, exhibited his instructions, discussed the
propositions submitted, and declined to vote,
when his vote would have controlled the ac-
tion of the meeting. Since that time, several
annual meetings have been held, at which the
appellant was represented. The circumstances
of the contract and its effects have been devel-
oped, and yet the resolution sanctioning tiiis
contract has not been rescinded. It may be
that among the stockholders, and within the
Corporation, the cause of this procrastination
and hesitancy to act upon the subject may be
estimated properly. But we are to regard the
conduct of the Corporation from an external
position. The community at large must form
their Judgment of it from the acts and resolu-
tions adopted by the authorities of the Corpo-
ration and the meeting of the stockholders, and
bv their acquiescence In them. These negotia-
ble securities have been placed on sale in the
community, accompanied by these resolutions
and votes, inviting public confidence. They
have circulated without an effort on the part
of the Corporation or corporators to restrain
them, or to disabuse those who were influenced
by these apparently official acts. Men have in-
vest^ their money on the assurance they have
afforded.

A corporation, quite as much as an individ-
ual, IS held to a careful adherence to truth
in their dealings with mankind, and cannot,
by their representations or silence, involve
others in onerous engagements, and then defeat
the calculations ana claims their own conduct
had superinduced. The opinion of the court
is, that the injunction granted upon the bill of
the appellant was improvidently granted, and
that he is not entitled to the relief he has
sought; and that the decree of the CircttU Court
duH^ting (he injunction ana dinmimng the bill
in correct, and must be affirmed.

Cited-34 How., 300, 875: 2 Black, 723; 7 Wall.,
413 ; 20 Wall., 811 ; 08 U. 8., 613; 04 U. 8., 73,00 U. 8.,
tt>; 16 Otto, 150; 11 Bank. Keg., 268, 288 ; 1 Flippia,
106, 217: 2 Flippln, 620; 3 Woods. 210: 2 Huffhen,
264, 255; 5 Saw., 336; 6 Dill. 337; 7 Kan., 606; 23
iDd., 355; 60 Ind., 107; 40 111., 347; 65 111., 410; 41
N. Y., 476; 65 N. Y., 60; 78 N. Y., 188: 8 Am. Rep.,
65e<55 111., 413): 12 Am. Kep., 480 (7 Kan., 470); 41 Am.
Kep., 224 (131 Mass., 268.)

E UNITED STATES, Appt,

/ ANDRES CASTILLERO.

(See 8. C. 23 How., 464-400.)

Islands, when not grantoMe by Mexican goternor
— order to grant.by Mexican president, on July
to, ISSS'-effect ef— grant of island of Santa
Cruz, vaUd,

Islandfi Rltiiatpd on the ooast, it seems, were nev-
er frruritod by the Governors of California or any

49»

of her authorities, under the Ooloalxatlon Law of
18S4, or the Keirulatlons of 1828.

Tbe power to errant the lands of the Islands was
neither claimed nor ezeroised by the authorities
of the department, prior to the zDth day of July,
1838.

On that day the Mezioan Prefddent, by a dispatch,
authorized Governor Alvarado, in ooncurrenoe
with the Departmental Assembly, to grant the des-
ert Islands adjacent to that department.

Grants made by the ffovemor, under the power
conferred, without tbe concurrence of tbe Depart-
mental Assembly^ were simply void. It wa^so held
by this court in u. 8. v. Oslo, at the present term.

By another dl<ipatch on the 20th day of July, 1838,
the President recommended to tbe governor and
the Departmental Assembly that one of the Islands,
such as the claimant might select, be asRlgned to
him, before they proceeded to grant and distribute
such lands, under the general authority conferred
by the previous dispatch.

The legal effect of that second communication
was to withdraw such one of the islands as should
thus be Klected by the claimant from the opera-
tion of the previous order, and to direct that it be
assigned to this claimant.

On the 6tb day of March. 1830, be presented his
petition to the governor, asking for a grant of the
island of Santa Catalina. The governor, on tbe
same day, made a decree that a title of concession
should issue, and that the espedUnte should be per-
fected in thn usual way.

On the 7th day of March, 1830. he presented an-
other petition to the governor, asking for a grant
of tbe island of Santa Cruz, representing thai the
island previously offered was unlit for improve-
ment, and for that reason praying that the order of
concession may be so changed as to conform to his
last mentionea request.

On the ^2d day of May, 1830, the governor made
the grant, basing it upon tbe special dispatch re-
ferred to in the petition : and all tbe documentary
evidences of title, including the grant, were found
in tbe Mexican archives.

Held, that tbe genuineness of the documentary
evidence of title Is satisfactorily proved, and that
tbe grant was made bv competent authority.

Emanating, as the dispatch did, from the supreme
power of the nation, it operated of itself to adjudi-
cate tbe title to the claimant, leaving no discretion
to be exercised by the authorities of the department.

Neither the governor nor the Assembly, nor both
combined, could withhold the grant-, after a proper
selection, without disobeying the express command
of the Supreme Government.

Argu£d Feb. 23, 1860, Decided Apr, f . lS6rf.

APPEAL from the District Court of the Unit-
ed States for the Southern District of
California.

The history of the case and a statement of
the facts appear in the opinion of the court.

Messrs. J. S. Black, Atty-Gen.,andE. M.
Stanton, for appellants.

Mr. J. A. Rockwell, for appellees.

The argument of counsel, hemg confined a)>
most entirely to the facts, is not here given.

Mr. Justice ClilTord delivered the opinion of
the court:

This is an appeal from a decree of the Dis-
trict Court of the United States for the South-
em District^ of California, affirming a decree of
the commissioners appointed under the Act of
the dd of March, 1851, to ascertain and settle
private land claims.

Pursuant to the 8th section of that Act, the
appellee in this c&se presented his petition to
the commissioners, claiming title to the island
of Santa Cruz, situated in the County of Santa
Barbara, in the State of California, by virtue of
an original erant from (Governor Alvarado. All
of the documentary evidences of title produced
in the case are duly- certified copies df originals
found in the Mexican archives, as appear* by
the certificate of the Surveyor- General, wtiicii

64 U.S.

1859.

UniTBD States y. Cabtillbbo.

464-469

makes a part of the record. They consist of a
special dispatch from the Minister of the Inte-
nor of the Republic of Mexico, addressed to
Governor Alvarado: the petition of the claim-
ant to the same, and the ori«nal grant to the
petitioner, which purports to oe signed by the
governor, and to be duly countersigned by the
secretary of the department. Certain other
documents were also introduced, to which it
will be necessanr to refer, as a part of the pro-
ceedings that lea to the grant.

Islands situated on the coast, it seems, were
never granted by the Governors of C alifomia
or any of her authorities, under the Colonization
Law of 1824, or the Regulations of 1828. From
all that has been exhibited in cases of this de-
scription, the better opinion is, that the power
to ^ant the lands of the islands was neither
claimed nor exercised by the authorities of the
department prior to the 20th day of July, 1888,
as was satisfactorily shown in one or more cases
heretofore considered and decided by this court.

On that day, the Minister of the Interior, by
the order of the Mexican President, addressed
a communication to Governor Alvarado, au-
thorizing him, in concurrence with the Depart-
mental Assembly, to grant and distribute the
lands of the desert islands adjacent to that de-
partment to the citizens of the nation who might
solicit the same. That dispatch bears date at a
period when the President was in the exercise
of extraordinary powers, and was issued, as
appears by its recitals, with a view to promote
the settlement of the unoccupied islands on the
coast, and to prevent those exposed positions
from becoming places of rendezvous and shelter
for foreign adventurers, who might desire to
invade that remote department. Grants made
by the governor, under the power conferred by
that dispatch, without the concurrence of the
Departmental Assembly, were simply void, for
the reason that the power, being a special one,
could onlv be exercised in the manner therein
prescribed. It was so held by this court in
United States v. Osio, 64 U. S., 457. decided at
the present term, and we are satisfied that the
decision was correct.

But the grant in this case was not made un-
der the eeneral authority conferred bv that dis-
patch. In addition to what was exhibited in
the former case, it now appears that another
dispatch of a special character was addressed
by the same cabinet minister to the governor
on the same day. Like the other, it bears date
at the City of Mexico, on the 2(Hh day of July,
1838, and is signed by the Minister of the In-
terior. By the terms of the communication, the
governor is informed that the President, regard-
ing the services rendered by this claimant to
the nation and to that department as worthy of

freat consideration and full recomp)ense, has
irected the minister to recommend strongly to
the governor and the Departmental Assembly
that one of the islands, such as the claimant
might select, near where he ought to reside with
the troops under his command, be assigned to
him, before they proceed to grant and distribute
such lands, under the ^neral authority con-
ferred by the previous dispatch.

Beyond question, the legal effect of that sec-
ond communication was to withdraw such one
of the islands as should thus be selected by the
claimant from the operation of the previous

gee 28 How.

order, and to direct that it be assigned to this
claimant. His attorney, accordingly, on the
5th day of March, 1889, presented his petition
to the governor, asking for a grant of the island
of Santa Catalina, which is situated in front of
the roadstead of San Pedro, and requested that
the espediente might pass through the usual
forms.

In conformity to the prayer of the petition,
the governor, on the same day, made a decree
that a title of concession should issue, and that
the espediente should be perfected in the usual
way. Accompanying the order of concession
there is also a form of a CTant of the island to
the claimant; but it is without any signatures,
and does not appear ever to have been com-
pleted.

On the 17th day of March, 1889, his attorney
in fact presented another petition to the gover-
nor, asking for a grant of the island of Santa
Cruz, which, as he represents, is situated in
front of Santa Barbara, on the coast of that de-
partment.

Both of these petitions are based upon the
special dispatch aiddressed to the governor; and
in the one last presented, the claimant represents
that the islands previously offered is wholly un-
fit either for agricultural improvement or the
raising of stocK, and for that reason prays, in
effect, that the order of concession may be so
changed as to conform to his last mentioned
request. For aught that appears to the contrary,
his request was acceded to without hesitation,
for, on the 22d day of May. 1889, the governor
made the grant, basing it upon the special dis-
patch referred to in the petition.

To prove the authenticity of the dispatch and
the genuineness of the grant, the petitioner
called and examined Gk)vemor Alvarado. He
testified that he was acquainted with the hand-
writing of Joaquin Pesado, the Minister of the
Interior, and also with that of Manuel Jimeno,
the secretary of the department, who counter-
signed the grant. Both of these signatures, as
well as his own, he testified, were genuine; and
he also stated that he recognized the document
as a genuine instrument, and intended it at the
time as a perfect and complete title in the claim-
ant. His testimony finds support in this case,
to some extent, by the fact that all the docu-
mentary evidences of title, including the grant,
were found in the Mexican archives; but much
stronger confirmations of his statements is de-
rived from the record evidence which those
archives are found to contain.

At the argument, we were very properly fur-
nished by the counsel of the appellants with a
copy of an index of concessions, prepared by
the secretary of the department. That index
covers the period from the 10th day of May,
1833, to the 24th day of December, 1844. It
contains a list of four hundred and forty-three
concessions, and amon^ the number is the one
set up by the claimant m this case. Its descrip-
tion in the index corresponds in all particulars
with the grant produced, except as to the date.
As there given, it is dated the 5th day of March,
1^9, which is the true date of the concession,
under the first petition.

Considering that the name of the grantee and
the descrintion of the premises agree with the
grant produced in the case, we think it a rea-
sonable presumption that the error of date is in

499

66-90

SuPSBMB Court of the Uhitbd Statbs.

Dbc. Tbrv.

the index, and not in the grant. For these rea-
sons, we think the jzenuineness of the document-
ary evidence of title is satisfactorily proved.
Having come to this conclusion, the only re-
maining question is, whether the grant was
made by competent authority. Direction was
given to the governor and the Departmental
Assembly in the special dispatch on which this
grant was issued, that one of the islands, situ-
ated along the coast of the department, should
be assigned to this claimant before they pro-
ceeded to grant and distribute such lands under
the general order. Those communications were
of the same date; but it is obvious, from the
language of the special dispatch, that it was is-
sued subsequently to the other communication,
and must be regarded as qualifying the latter,
so far as their terms are repugnant. Had the
claimant petitioned for a grant of this descrip-
tion, under the general order, his application
would have been addressed to the discretion of
the governor and of the Departmental Assem-
bly, and unless both had concurred in granting
the prayer, his application would have been
defeated, for the reason that such a title could
only be adjudicated by their concurrent action.
Power to refuse such applications was vested
in the Assembly as well as in the governor, but
when both concurred, and the adjudication had
been made, the title papers were properly to be
issued by the governor as an executive act. As
the Assembly was a constituent part of the
granting power under the general order, it was
aoubtless thought prop)er that the withdrawal
of one of the islands from its operation, and the
disposal of it in another way, should be notified
to the Assembly as well as to the governor.
They were accordingly directed not to proceed
to make adjudications under that order until
the assignment of the title to this claimant was
perfected, but they were not required to make
the assignment or to cause' it to be made. To
accomplish that purpose, and carry into effect
the command of the President, two things only
were necessary to be done: one was to be per-
formed by the claimant, and the other was a
mere ministerial act. It was the claimant who
was to make the selection; and if it was a prop-
er one. near the place where he was stationed
with his troops, nothing remained to be done
but to make the assignment as described in the
dispatch. Emanating, as the dispatch did, from
the supreme power of the nation, it operated of
itself to adjudicate the title to the claimant,
leaving no discretion to be exercised by the au-
thorities of the department. Neither the gov-
ernor nor the Assembly, nor both combined,
could withhold the grant, after a proper selec-
tion, without disobeying the express command
of the Supreme Government. I^othing, there-
fore, remained to be done, after the selection by
the claimant, but to issue the title papers, and
that was the proper duty of the governor, as
the executive organ of the department. No
doubt appears to have been entertained of the
justice of the claim, either by the commission-
ers or the district court; and in view of all the
circumstances, we think their respective decis-
ions were correct.

The deereeofths district court w, thertfors, af-
firmed,

8. C— 2 Black, 17.
Citc-d-^ Black, 151, 802, 338.

500

THE DUBUQUE AND PACIFIC RAIL-
ROAD COMPANY, Hff, in Er.,

EDWIN C. LITCHFIELD.

(See S. C, 83 How., 66-80.)

Land grant in cud of Des Moinee Biver — ttrietiy
construed—what it was — lands outside of grant
— bona fide claimafU.

Under the Aot of 1846, to aid in the improvement
of the navifiratlon " of the Des Moines River/' that
portion from its mouth to the Raccoon Fork was
the '*Baid river," on each side of which the strip of
land srranted was to lie.

All grants of this dlsoription are strictly con-
strued against the grantees; nothing passes but
wfiat is conveyed in clear and explicit language.

The donation stands on the same footing of a
grant bv the public to a private company, the terms
of which must be plainly expressed in tne statute ;
and if not thus expressed, they cannot be implied.

The Act of Ck>ngre8S was a direct grant to Iowa,
in fee, of an undivided muiety of the whole tract
lying on each side of the river, from the Raccoon
Fork to the Missouri line.

No authority was conferred on the executive offi-
cers administering the public lands to do more
than make parti ton between the tenants in com-
mon, Iowa and the United States, in the manner
prescribed by the Act of Ck>ngre88.

It was impossible to make partition, under this
grant, of lands lying outside of its boundaries ; and
all attempts to do so were merely nugatory.

Where toe action was brought by a bana>lae claim-
ant under the grantee of the river improvement
fund against the Railroad Company, although the
case agreed was made up in a friendly spirit, to try
the title at the instance of executive oflSoers, the
court felt bound to hear and decide the cause on its
merits.

Submitted Mar, 29. 1860. Decided Apr, 9. 1860,

IN ERROR to the District Court of the United
States for the District of Iowa.

This was an action of right, brought in the
court below by the defendant in error, to try
the title to a certain section of land in the State
of Iowa.

The case having been submitted to the court
upon an agreed statement of facts, a judgment
was entered in favor of the plaintiff, where-
upon the defendant sued out this writ of error.

The Attomey-Gkneral having represented to
the court that the government was interested in
the questions involved in this case. leave was
granted to him to intervene and file a printed
argument on behalf of the United States.

The case is very fully stated in the opinion of
the court.

Mr, Piatt Smith* for plaintiffs in error:

There is no doubt but that the plaintiff is en-
titled to recover, if, by the true construction of
the Act of August 8, 1846, lands were granted
the entire length of the river. But on the
other hand, if the grant, like the improvement
of the river, was limited to that portion of the
Des Moines below the Raccoon Fork, then the
plaintiff must fail in his action, as the locus in
quo is some sixty miles above the Raccoon
Fork. The defendants claim that plaintiff has
no title, but that the lands belong to them as
part of a grant made by Act of Congress, ap-
proved May 15. 1856, to aid the construction
of ceriain railroads in Iowa, and subsequent! v
regranted by the State of Iowa to the defend-
ants. The facts agreed to in this case, show
clearly that the land in dispute belongs to the
defendantSi unless it was covered by Uie grant

64 U. 2$.

1859.

Dubuque & Pacific R. R Co. ▼. Litchfield.

66-00

made to improve the navigation of the Des
Moines River.

It requires considerable penevering in^nui-
ty to make the language of the Act ambigu-
ous; but the diversity of opinion existing at
different times among the heads of the depart-
ments, is such as to warrant the conclusion
that the languaji^e is not clear and explicit.

It is a well known historical fact, that all
grants of land by alternate sections to aid in
making public improvements, are obtained on
the plausible plea that the sections reserved to
the government will be doubled in value
in consequence of the Improvement. This is
the head and front of the argument, and the
real consideration which induces the govern-
ment to part with the lands. Putting the con-
struction upon this Act which I contend for, no
violence will be done to the well settled princi-
ple and policy lying at the very foundation of
all land grants of the kind. But if the grant is
construed to extend several hundred miles
above the improvement, then there was no con-
sideration for the grant; the general policy
governing like cases has no application to the
case. The parties who drew the bill, the dele-
gate from Iowa and the Commissioner of the
General Land Office, must have, either through
ignorance or design, overreached and defraud-
ed the government.

Again; it is a well settled principle of law,
that all grants by governments are to be con-
strued strictly against the grantee, that nothing
shall pass except what is conveyed by clear
and explicit language.

Charles River Ihidge v. TTorr^n Bridge, 11
Pet., 420; Oildart v. Oladitone, 13 East, 668.

The counsel on the other side has taken con-
siderable pains to show that there are excep-
tions to the above rule, such as grants made
for a valuable consideration, grants to pious
and charitable institutions, &c. But I am not
aware that the Des Moines River Navigation
Company fall within either of the above ex-
ceptions.

But it is contended that the plaintiff t)elow,
in this case, stands in the light of an innocent
purchaser. A proper plea of innocent pur-
chaser has several ingredients in it, which are
altogether wanting in this case. A purchaser
is always chargeable with everv defect appar-
ent in the chain of title which he holds.

Beeder v. Barr, 4 Hamm., Ohio, 446; NeUon
V. Alien, 1 Yerg.^ Tenn., 860.

In the case of Ware v. Brush, 1 McLean,
538, the court say: ** The assignment by the
executor was wholly without authority, and
therefore could convey no right to the assignee.
Is the defendant chargeable with notice of this
want of power in the executor? We think he.
is a purchaser with notice. The assignment by
the executor appears upon the face of the war-
rant, which was transferred to the defendants
and copied into the patent. This was clearly
notice to the defendant that the assignment was
made by the executor, and it was the duty of
the defendant to examine the will for the pow-
er to made it. The executor was in fact a
mere agent, and could only act within the limit
of his authority. An assignment beyond this
could transfer no right."

Mr. Litchfield was bound to look at the Act
of Congress, by which he was notified that the

See 28 How.

grant did not extend above the Raccoon Fork;
also to the certificate of Mr. Secretary Stuart,
who certified the land to the territory under
protest. Mr. Stuart was of opinion that the
grant did not extend above the Raccoon Fork,
and only certified under protest, in order to
give the state an opportunitv of protesting the
question in court. Mr. Litchfield comes m as
an adventurer under that suggestion, and now
claims to be an innocent purchaser.

The opposite counsel has made an elaborate
argument to show that the proper interpretation
of laws must be derived from their own lan-
guage; that evidence aliunde cannot be admit-
ted for the purpose of varying, extending or
controlling the meaning of a statute. I do not
call such an Act as this a public law. It is true
that it is an Act passed by Congress; but it is
essentially a private Act, a grant and not a
law or statute, within the general and broad
acceptation of the term.

It is also contended on the other side, that
the United States Government is e8topp)ed in
consequence of letters written a long time sub-
sequent to the passage of the Act; that if the
original wording of the Act did not extend
above the Raccoon Fork, the writing of these
letters and the making of eight or nine alter-
nate decisions for and against the grant, ex-
tending above the Raccoon Fork, work an es-
toppel against the United States.

There is something novel in the idea of a
party setting up an estoppel a^inst the United
States, in a suit to recover land m which nothing
more than a fighting ri^ht has been certified
under protest, with a view of allowing the
mooted question to be settled by the court.

Mr. Charles Mason, for defen'dant in
error:

Each of the parties to this suit claims to be
the owner of the tract of land in controversy.
It is only necessary to consider the title of the
defendant in error, as he was a plaintiff below.

On the 8th of August, 1846, Congress granted
to the then Territory of Iowa, a quantity of
land lying along the Des Moines River, for the
purpose of aiding to improve the navigation of
a portion of that dtream. A year or two after-
wards, and before any of the lands had been
transferred to the State, a controversy arose as
to the extent of that grant. It was contended
on the one side that it reached to the source of
the river, while on the other it was held to be
limited to the Raccoon Fork.

The land which is the subject of this suit
lies within five miles of the Des Moines Hiver,
but above the Raccoon Fork. It was duly
selected as a portion of that grant, and has
been regularly transferred from the State to
the defendant in error. If, under all the cir-
cumstances of the case, the grant includes this
tract, his title is complete— otherwise it is
worthless. The court below decided that ques-
tion in his favor, and the case is now brought
here to test the correctness of that decision.

We hold that the plain language of the Act
itself is sufficient to settle this question conclu-
sively in his favor. It grants "one equal
moiety in alternate sections of the public lands
(remaining unsold and not otherwise disposed
of, incumbered or appropriated), in a strip
five miles in width on each side of said river."

It is true, that in defining the object of the

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grant, the law declares it to be for the purpose
of aiding to improve the Des Moiaes River,
from its mouth to the Raccoon Fork, and the
conclusion is thence drawn by some, that the
grant itself was intended to extend no higher
than the latter point. But I submit whether
such a conclusion can be reached by any sound
rule for the interpretation of statutes.

When we speak in general terms of the Des
Moines River, we mean the whole river and not
a portion of it. In defining the purpose of the
grant, a limited portion of the river is expressly
mentioned. But in fixing the limit of the ^nt,
the river itself is named without restriction or
qualification. How shall it then be said that a
part and not the whole of the river was in-
tended?

As if to place the matter beyond all reasona-
ble doubt. Congress has fixed another restric-
tion upon the extent of this grant. The lands
must be selected within the then Territory of
Iowa. The first restriction prevented us from
taking lands more than five miles from the
river — the second confines us within the Terri-
tory. On the principle involved in the maxim
**exprewio umus est exdum aUerius" each of
these restrictions adds strength to the conclu-
sion that there are no other restrictions unex-
pressed. ' 'As exceptions strengthen the force of
the law in cases not excepted, so, according to
Lord Bacon, enumeration weakens it in cases
not enumerated."

Dwarr. St., 605.

In fact, a prohibition of one thing often in-
volves an actual permission to do what is not
thus prohibited.

Thus, the whole constitutional provision
which prevents Congress from interfering with
the slave trade prior to 1808. has always been
regarded as giving authority to prohibit it after
that period. In like manner, the limitation
which restricts us to the Territory of Iowa in
the selection of land, is in effect an authority
to select the alternate sections within five miles
of the whole length of the river, wherever such
land can be found within any portion of that
Territory.

In the construction of a statute, we must en-
deavor to give a definite meaning to every word
and expression found therein. The plain and
natural import of the terms employed is to
govern in construing the law; and where a
clear, intelligible meaning can be gathered from
those terms, we are not to look beyond them
to fancy some unexpressed intent.

See benn v. Beid, 10 Pet.. 524.

We need (as we think) only read this statute
with an unprejudiced wish to acrive at its mean-
ing from the natural import of the language
alone, to be satisfied that for the purpose of
aiding to improve the Des Moines River as high
up as the Raccoon Pork, it was the evident in-
tention of Congress to grant the alternate sec-
tions in a strip five miles in width on each side
of said river, from its mouth to its source, so
far as such land could be found within the
limits of the then Territory of Iowa.

The land for thirty or forty miles above the
mouth of the Des Moines, was not to contrib-
ute an acre to the improvement, though much
money was to be expended on that very por-
tion of the river. On the one side of that part
of the stream was the State of Missouri, and the

land was, therefore, excluded from being taken
by the very terms of the grant; and on the
other side was the half-breed tract in the State
of Iowa, and was private property, as will ap-
pear from the Treaty of 1824, and the Act of
Congress of July 30. 1884.

See Stat, at L., Vol. VII., p. 289, and Vol.
IV., p. 470.

Besides, a considerable portion of the land
between the half-breed tract and the Raccoon
Fork had been sold by the United States prior
to 1846; so that, at the date of the passage of
this law, there was but little more than one half
the amount of land below the Raccoon Fork to
be affected by the grant, which it would have
embraced had the alternative sections through-
out this portion of the river been subiect to the
terms of the grant. . There was only 821,000
acres left to m transferred to the Stale under
this grant below the Raccoon Fork ; whereas
the amount of six sections to the mile for the
whole distance, would have composed an ag-
gregate of more than 587,000 acres. This de-
ficiency of 266,000 acres situated below the
Raccoon Fork, would probably, at that time,
have been of more value than the whole SKK).-
000 acres which were, as we contend, granted
above that point, and which were to be re-
ceived in lieu thereof. In railroad grants, it is
the custom to allow the alternate sections to be
taken for fifteen miles on each side of the road,
to make up for any deficiency like the present.
Instead of increasmg the breadth of the grant
for that purpose in this instance, a suitable ad-
dition lias been made to its length.

What we contend for is, that in the construc-
tion of this statute the court should confine it-
self to the language of the law. The principle
which has been sanctioned by this court justi-
fies us in insisting upon such a rule.

In the case of PauUna'n Cargo v. T%e U. 8,,
7 Cranch, 60, Chief Jiutiee Marshall says:

**In construing these laws it has been truly
stated to be the duty of the court to effect the
intention of the Leeislature; but this intention
is to be searched for in the words which the
Legislature has employed to convey it."

See, also, U. 8 v. Fuh^, 2 Cranch. 8.'>8.

We respectfully submit, whether the present
is a case which justifies a strained construction
of the statute. Must not something more than
a mere inconvenience or a departure from a
supposed rule of fitness, be necessary, to justify
a disregard of the ordinair rule of oonstruclion.
in accordance with the fair import of the lan-
guage used?

But the present Attorney- General (Mr. Black),
in a very clearly written opinion, which will
be found entire m the record, has decided this
question adversely to us, founding that opinion
entirely on the doctrine of doubts. After stating
that there is an obscurity in the language used,
suflicient to raise a doubt as to its meaning, be
proceeds as follows:

" But for my own part I have not the least
doubt about it. My reason may seem paradox-
ical, but the very obscurity of the grant, in my
judgment makes it clear. It is out of these
doubts that certainty grows. In every doubt-
ful case, we know very well what we ought to
do, as soon as we are certain which party is en-
titled to the benefit of the doubt. We shall see
who is entitled to it here.

64 U.S.

1850.

DuBOQUE & Pacific H. R Co. y. Litchfield.

6e-l)0

*'It is well settled that all public grants of
property, money or privileges are to be con-
strued more strictly against the' grantee; what-
ever is not expressly given, or ver^ clearly im-
plied from the words of the grant, is withheld. "

Now, with the greatest respect for the learn-
ing and ability of this high functionary, I vent-
ure to sugsest that he has made a double
mistake in this instance. 1st. As to there being
an obscurity in the language used. 2d. If such
is the case, he has not correctly expounded the
doctrine of doubts as applied to such cases as
this.

I have nothing to add to what has already
been said of the first of these points. If I ann
correct in this position, the rule as to doubts
has no application whatever to this case. But
suppose the language to be actually of doubt-
ful import ; is that doubt to be construed against
the grantee in cases like the present?

In a general way, we find the doctrine laid
down that grants from the King are to be con-
strued strictly against the grantee — ^thus directly
inverting the rule as between private persons —
but this rule is subject to many and important
exceptions. When closely scrutinized, it will,
I think, be found to be narrowed down to cases
of royal grants, which are mere bounties, or
to cases where privileges and exemptions are
granted to private corporations. No instance
can, I think, be found wherein such a rule has
been appUed to a erant intended for a great
public purpose, ana made to a State or any
other municipal corporation.

"A statute made pro bono pubUeo shall be
construed in such a manner that it may, as far
as possible, attain the end proposed.

Bac. Abr. Stat., 1, 7.

'*The rules of construction which apply to
j^eneral legislation in regard to those subjects
m which Uie public at Targe is interested, are
essentially different from those which apply to
private grants to individuals, of powers or
privileges designed to be exercised with spe-
cial re^rence to their own advantage, although
involving in their exercise incidental benefits
to the community generally. The former are
to be expounded largely and beneficially for
the purposes for which they were enacted —
the latter, liberally in favor of the public, and
strictly against the grantees."

Bradley v. N. T. and N. H, EaUroad Co,, 21
Conn., 806; see, also. Sedgw. Stat, and Const.
L., 838, 389; Ohio Life and Trust-Go. v. DeboU,
16 How., 485; 2 Co. Inst., 496, 497; 8vtton*8
HomUal, 10 Co., 27. 28; Charles Biwr Bridge
V. Warren Bridge, 11 Pet.. 558.

But suppose the case of a real contract for a
valuable consideration, and suppose the advan-
tages conferred to be ai the expense of no one
but the government itself; and can anyone
who careiully examines a decision of the major-
ity In that case for a moment doubt that the
whole court would have concurred unanimously
in Uie views of the minority, as to the true rule
by which the law should be construed?

Now, the case at bar is one of this very char-
acter. It is not simply a grant, but it is a con-
tract, in fact as well as in law. A proposition
was made bv Congress to grant these lands, pro-
vided the State would assent to certain con-
ditions with which the grant was coupled. One
of these conditions (an implied one) was that

See 28 How.

Iowa should construct the improvement from
the mouth of the Raccoon Fork — the grant
being made to aid in that improvement, and the
government having a great interest in the result.

But in addition to this, it was expressly pro-
vided that the rivers should be and forever re-
main a public highway for the use of the
government of the United States, free from any
toll or other charge whatever for any property
ot the United States or persons in their service,
passing through or along the same.

If, in addition to the benefit which would
result from this improvement to the United
States as the proprietor of the public domain,
could also be added the advantages above
stipulated for. the government would be making
an exceedingly profitable disposition of its
property. A proposition to that effect was,
therefore, made by Congress, and accepted by.
the Legislature of the State. It was, therefore,
not only in fact, but in form, a contract for a
valuable consideration promised on the part of
the State,and is therefore not subject to the strict
rule contended for by the Attorney-General.

I am aware that there are some decisions of
this court which will be relied upon as establish-
ing the contrary doctrine to that for which I
have been contending; but a critical examina-
tion of those cases wul show the error of such a
conclusion.

In Ths U. 8. V. Arredondo, 6 Pet., 729, the
general rule is laid down, as claimed by the At-
tomey-Gkneral, and as admitted by myself, that
doubtful grants by the king are to be construed
in favor or the grantor. But there is nothing
in that decision to contradict the views here-in-
before expressed in regard to exceptional cases
like the present. Nor is there anything in the
facts of that case incompatible with these con-
clusions.

I believe it to be a well settled principle, that
a statute is never to be warped, as to its mean-
ing, by extrinsic facts. Even a deed from a
private individual cannot be affected by evidence
of what was said or written by the parties or
anyone else, at the time it was about to be exe-
cuted. How much less should such evidence
be permissible in the case of a statute, which is
a much more solemn and important instrument
and which it intended to affect the interests of
the public, who have not the means or the oppor-
tunity of looking behind the record, if that
were permissible.

I am aware that parol proof is properly re-
sorted to for the purpose of explaining a latent
ambiguity in a deed, and al^ in a statute.
If an Act was passed for the relief of John
Smith, parol proof may be given to show which
of the many persons answering to that name
was intended.

But where is the latent ambiguity in the
present case? None has ever been shown or
pretended. All that has ever been claimed as
doubtful, is patent upon the face of the statute.

Parol proof is admissible to explain any such
difiSculty, in either a deed or a statute.

Mr. i. 8. BIjMskt Atty-Gten., intervening
on behalf of the United States:

I shall try to make this paper as brief as I can,
and weary the Judges with unnecessary matter
as little as possible. It is my duty to speak
freely about the case itself, but I must not be
understood as reflecting upon the parties or their

608

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Dbc. TskH,

counsel, most esp)ecially not upon the latter.
Of the defendants' attorney I know nothing
except what is reputable, and the gentleman
who appears for the plaintiff is known to the
whole country by his high character for integ-
rity as well as ability. But men have different
notions of right and wrong. Doubtless the con-
duct of my opponent squares exactly with their
own ideas of propriety. Upon the face of the
complaint and the plea, this is an action by a
citizen of New York against an Iowa Railroad
Company, for section 1, in township 88, North.
Range 29 West of the principal Meridian.
Whether the nominal plaintiff or the nominal
defendant is the owner of that single section, is
the whole question which pretends to be tech-
nically brought before you. But it is, in fact
and in truth, in purpose and in object, an appeal
from the Secretary of the Interior to the Su-
preme Court, in which the real appellants are
certain parties interested in an old land grant,
and the appellees are the United States. The
appellants take this appeal, because they hope
that you will expand a legislative grant of
821,000 acres of land into a grant of 1, 168,000
acres. You are expected to sit as a board of
revisers on the acts and doings of the Interior
Department.

If the framers of the Constitution and the
laws had thought proper that this court, or any
other judicial tribunal, should review the pro-
ceedings of the Executive in such cases as this,
they would doubtless have given the power.
But it has been withheld, ana the decisions of
the Executive have been made final, for reasons
which seem to me full of practical wisdom and
justice.

I trust the court will look narrowly into every
part of this record, and carefully consider the
whole case, before giving any judgment either
way upon the point which these parties have
pressea upon you in their arguments.

I desire to- call the attention of the court very
specially to the following points:

1. This is a fictitious suit brought here not to
determine the rights of the nominal parties, nor
to settle any real dispute between them, but to

get an opinion which will throw the moral in-
uence of this court a^iust the govemment,in
a matter already decided by tne Executive.
Therefore the case ought to be dismissed.

2. Assuming that an actual dispute exists be-
tween the parties^ they have agreed upon a
statement of facts which is, in some respects,
palpably erroneous and unjust, and in others so
defective that no judgment can safely be pro
nounced upon it.

8. If the court feel bound in such a case to
give an opinion, it will be neither necessary nor
proper to pronounce upon the construction of
the Des Moines River grant. The rights of the
parties to the section in suit depend on the con-
veyances which were made to them by the
State of Iowa.

4. The true interpretation of the Des Moines
River grant confines it to that part of the river
which lies below the Raccoon Fork, as the
proper department of the government has de-
cided.

I shall make a few remarks on each of these
points, following the order in which I have set
them down :

1. I am compelled by the evidence in the

«04

record itself to believe that this suit has not
been instituted, by the plaintiff for his own use,
or with any view to the assertion of his own
rights, or to redress any injury which he sup-
poses himself to have suffered, but solely for
the purpose of getting the opinion of this court
for the benefit of other parties not named upon
the record. Between Litchfield and the Dubuque
Railroad Company there is no controversv.
The real plaintiffs are the claimants under the
Des Moines grant, and the Government of the
United States is the party aimed at as the real
defendant. I repeat that I mean no imputation
upon counsel, but merely to express the opinion
that the whole proceeding is irreinilar and
wrone. The facts are proved by the record, and
their legal effect is shown by numerous adjudi-
cated cases, among which it is only necessary
to mention that of Lord v. Veazie, 8 How. , 251.
I invite attention to that case and the author-
ities there cited, because it corresponds to this
so exactly that a distinction between the two is
almost impossible.

2. There is such a manifest impropriety in
the statement of the facts which the parties have
agreed upon, that it is impossible for the court
to pronounce judgment safely upon it. It is
loaded with statements.certificates, ex parte affi-
davits, letters, <&c., which no suitor in this or
any other court has a right to produce, either
with or without the consent of opposing coun-
sel. It is true, as set forth in the verdict, that
the matters and things therein stated are only to
be taken for ^hat they are le^Iy worth. But
it must be remembered that illegal evidence is
not excluded by courts of justice because it is
worthless, but because it is positively mischiev-
ous. I cannot say for myself that I fear the
effect upon your mind of such afl!davits as those
of Mesf^rs. Sample and Belknap, or the certifi-
cate of Mr. Guy Wells. But when a court re-
ceives and reads such things, those who know
not what manner of men the judges are, might
readily suppose the decision to nave been af-
fect^ by them, more or less. The court is
bound, for its own sake, to have them removed
out of sight. Such a statement as this should
be sent away and refused all entertainment, not
merely because it imposes upon the court the
necessity of separating the truth from the trash,
but because it involves a certain amount of
danger to the just administration of the law,or
at least to the reputation of the judiciary. But
this record i6 objectionable, not only because it
contains too much, but for the reason that it
contains nothing or next to nothing, upon the
very point in issue.

For these reasons, in case my motion fails
upon the other ground, I shall insist that this
writ of error be dismissed, and the cause re-
manded to the court below, with directions to
take such measures as mav be necessary to
purge the stated case of the illegal and inaamis
sible matter which it contains, and to insert
into it a full and specific statement of the titles
under which both parties claim, and the nature,
extent and duration of the defendant's posses-
sion.

8. If Your Honors shall conclude to set aside
all these considerations, and determine to give
a judgment upon the case, I mustbeallowra to
ask (and I ask it with perfect respect), that
your opinion be confined to the respective xvla

64 U.&

1859

DuBUQtnc & Pacific R R. Co. v. Litchfjicld.

d6-90

of the parties on record. You wilt not be dis-
posed to pass upon the rights of other persons
who are not properly before you, unless Justice
to those who are before you make it absolutely
necessary. In this case, it is not necessary at all.

The plaintiff declares his title to be derived
from the State, as trustee of the Des Moines
River fund. The defendant's title is also derived
from the State. Both parties claim under the
same grantor, and thatgrantor is admitted to
have had a good title. We do not know, indeed,
which party has the earlier deed, but the con-
cealment of this fact from the court is no fault
of ours. The presumption is against the plaint-
iff, since the burden was on him of showing a
clear title in himself.

Suppose it to be all true that the grant to the
State made by Congress in 1840, for the im-
provement of the Des Moines River, covered
the section in suit; and suppose also that the
title of the State to this section was made per-
fect by the selection of the State agent, and the
approval of the proper department here. The
State kept her title until 1856, and then peti-
tioned ConsTess for another grant of the same
land, to aidher in making a railroad, and got
it. After getting this second mat and locat-
ing it on the section in suit, she conveyed it
away to the defendant, in consideration that a
railroad shall be made. The defendant accepts
the land from the State, and pays the consid-
eration by making the railroad. After all this,
the State conveys the same land to Litchfield.
Does Litchfield get a title ? Most assuredly not.
By accepting the second grant from Congress,
locating it on the section sued for, conveying it
to the Railroad Company for a valuable consid-
eration, and putting the Company in possession,
the State, and all claiming under her by subse
quent conveyance, are clearly estopped from
setting up another claim under an older title.
When a party sells and conveys land, he trans-
fers all the title he has. It would be an intol-
erable wrong to let the State select the same land
under two grants, sell it to one party under the
second grant, and then turn her grantee out of
possession b^ the production of the first grant.
The whole title of the State had been conveyed
away to the Railroad Company before Litch-
field 8 deed, and he, therefore, took nothing by it.

If it be assumed, without evidence, that
Litchfield's deed is older than the title of the
defendant, there is still no room in the case in
point which the parties have tried so hard to
raise, namely: the construction ^f the Des
Moines grant. If the plaintiff had a convey-
ance previous to 1856, his right, whatever it is,
will depend on the acts and deeds of the State,
in making the several conveyances to himself
and the other party.

4. While I confess to some anxiety that this
court, for the sake of example, should dismiss
the case without giving any opinion about the
construction of the Des Moines grant, it shall
not be said that I am unwilling to meet the
point, if you shall think that it fairly and nec-
essarily arises. I have no fears that your opin-
ion will be opposed to that of the department. I
will not urge it upon affidavits, nor waste
wonls in reply to what has been said about the
desire of parties interested in the claim to get
more lands than the government thought them
^entitled to. I am very willing to admit that they

Bee 98 How.

want a great deal more than they got. But the
q^uestion to be settled is, how much they have a
nght to receive.

The simple and naked question presented to
the Interior Department was on the construc-
tion of the 1st section of the Act of 1846, *'that
there be and here is granted to the Territory of
Iowa, for the purpose of aiding said Territory
to improve the navigation of the Des Moines
River, from its mouth to the Raccoon Fork (so
called), in said Territory, one equal moiety in
alternate sections of the public lands (remaining
unsold and not otherwise disposed of. incum-
bered or appropriated), in a strip of five miles
in width on each side of said river, to be select-
ed within said Territory by an agent or agents
to be appointed by the governor thereof, sub-
ject to the approval of the Secretary of the
Treasury of the United States."

•Does this give to the Territory one moiety of
all the lands on both sides of the river up to its
source, or is the grant confined to the lands
which lie between the fork and the mouth?
What is the extent of this grant? How is the
strip described, within which the alternate sec-
tions of land are to be taken? It is described
as a strip five miles in width on each side of
said river. What river? The said river — the
river before mentioned and described — that is,
the Des Moines River, from its mouth to the
Raccoon Fork.

I admit that this, like every other statute,
must be interpreted ex vUcer%bu$ mis with the
aid of such lights as may be shed upon it by
known historical and geographical facts, to-
gether with the authority of those oflScers whose
duty it has been to interpret it heretofore.
Where Congress has said one thing plainly and
distinctly, in a law passed and enrolled, it can-
not be modified, or in any manner changed by
proof, however clear, that the committee which
reported the bill, or any other member of the
body, or even all of them together, meant to
say a different thing. But when an obscurely
worded law has received a construction at the
hands of those who passed it, that construction
will not be set aside by any court. So when an
ofiScer, whose duty it is to administer and exe-
cute the law, gives an official construction to it,
his opinion is entitled to equal respect; and
when the persons interested in a different con-
struction, have acquiesced in that which the
law receives from the officers, the conclusion
is still more strong and clear asrainst any op-
posing view. All this has occurred in the pres-
ent case.

While the bill was pending before Congress,
it was submitted to the commissioner of the
land office with an inquiry how much land
would be included in the grant. His answer
shows that in his opinion no land would be in-
cluded, except what lay between the mouth of
the river and the fork. The House Committee,
to whom the subject was referred, acknowl-
edged this to be the true construction, reported
the letter of the commissioner, and laid it be-
fore the House alonjr with the bill.. After the
passage of the law, the commissioner of the
land office addressed a letter to the Governor of
the etate, informing him that the range of se-
lection was limited to the lands below the fork,
and transmitting plans to guide the State in
making its selection. The agent of the State

606

66-90

SUFBBKB COUBT OF THB UnITBD BtATBB.

Deo, Tbbm,

proceeded to make the selections within the lim-
its defined. Both the Governor of the State and
the affent appeared to malce the selections of-
flcialfy, notified the land office of their selec-
tion made below the fork, without pretending
to have any claim above. The idea that the
grant extended to the source of the river was an
after- thought, which did not occur, even to the
parties interested, for several years. These facts
are kept out of view by the statement of the
parties, but Your Honors will find them set
forth in Mr. Cushing's Opinion, 7 Opinions, 694.

The first evidence to be found upon record
that anybody doubted about the extent of this
grant, is in a letter dated Feb. 28, 1848, from
^r. Young, who had then Just become com-
missioner of the Land Office. He suggested
that the State was entitled throughout the whole
extent of the river within the limits of Iowa.
This was pronounced by the Secretary of the
Board of Public Works m Iowa, to be '* a very
liberal opinion,'' and the claimants have con-
tended for it with more or less pertinacity ever
since. But Mr. Young became conscious of
bis error, and retracted his ill-advised opinion,
before doing anything which could commit
him to it. He reported the lands above the
fork as beine vacant and open to sale, and Mr.
Polk accordingly issued his proclantetion to
put them in the market. But the Iowa Board
of Public Works had, by this time, become so
impressed with their new opinion, that they sent
a protest to the Register against the sale of the
lands. The sale went on, nevertheless, and con-
siderable quantities of land were sold and pre-
empted. This was in the summer of 1848. On
the bth of January, 1849. the delegation in Ck>n-
gress from the State of Iowa addressed a letter
to Mr. Walker, then Secretary of the Treasury,
in which they argued in favor of stretching the
grant up to the source of the river; and on the
2d of March, 1849, the day before he retired
from office, Mr. Walker gave them an answer,
in which he expressed the opinion that the
grant had the whole extent which they claimed
for it. He sent the correspondence to the Com-
missioner of the Land Office for his information
and government. This reconverted Mr. Young,
or at all events caused hin to rescind his last de-
cision against the claim, and on the 1st of June,
1849, he sent an order to the Receiver at Iowa
Citv, directing him to withhold from sale all the
odd numbered sections within five miles of the
Des Moines, above as well as below the Raccoon
Fork.

Still nothing decisive was done to give the
State a title to the lands in dispute, when the
commissioner reported the facts to Mr. Ewing.
He refused his concurrence in Mr. Walkers
opinion, and expressed the conviction that the
ffrant did not extend to any lands above the
fork. He consented, however, to suspend any
sales of the land embraced within the claim of
the State, so that an opportunity might be
given to appiv to Congress for an extension of
the grant. From this decision an appeal was
taken to the President, who referred it to the
Attorney-C^eneral, Mr. Johnson. His opinion
was in favor of the largest claim which the
State had made. But Mr. Ewing continued to
oppose it, until he went out of office and was
succeeded by Mr. Stuart. Mr. Johnson's opin-
ion was never adopted by the Land Office,

»06

as appears from the jreport of September 36, in
which Mr. Butterfleld reviews it, objects to its
conclusions, and, as I think, overthrows them
completely. Mr. Stuart also decided against
Mr. Johnson's view, and so did Mr. Critten-
den, to whom he submitted the question. But
he allowed Mr. Swing's order to stand until
the end of the approaching session of Congress.
At this stage of the business a grave error
seems to have been committed. The Secretary
of the Interior, without changing his convic-
tion, changed his action. He is supposed to
have been overruled. But if the President, or
any head of a department, entertained an opin-
ion different from his. none of them took the
responsibility of placing that fact upon the
record. He put his name to an indecisive or-
der, with so many restrictions in it as to leave
the matter as open as ever. Mr. McClelland
submitted the case to Mr. Cushing, who gave
the opinion so much complained of by the
plaintiff's counsel, holding t)iat the grant did
not extend above the fork; out in view of the
complications surrounding the whole matter,
he proposed that a part of the claim should be
conceded, on condition that the State would
agree to accept it and relinquish the remainder.
Mr. McClelland made the offer, which was
pending without acceptance at the time when
Mr. Thompson came into the department. Mr.
Thompson insisted upon a categorical answer,
and the offer of compromise was refused. Mr.
Thompson then decided directly and formally
against the claim, the President and Attorney-
Qeneral concurring. There it was thought to
be ended, until this case brought it before
the court.

Let us look at these authorities for a mo-
ment, and see where the weight of them lies.
In favor of the construction which the State
contends for, we have a letter from the Com-
missioner of the Land Office, evidently written
without consideration or conference, and re-
tracted immediately afterwards. Then comes
the letter of Mr. Walker, which was also re-
tracted, not by himself, to be sure, but by his
successor, who had a full right to do so before
any action was taken upon it. Afterwards Mr.
Attorney-General Johnson expressed an opin-
ion to the same effect; but it was not adopted
by the department which had asked for it, nor
by anybody else having aught to do with the
matter.

On the other hand, the opinion of Mr. Com-
missioner Shields, given to Congress upon the
bill while it was pending, involved the gravest
responsibility which an officer could assume.
It was adopted by the committee and by the
house, as a true construction of the Act. Gen-
eral Shields followed it out when he came to
execute the law, and the state authorities, con-
scious that he was right, fully and freely con-
sented to his view, without any resistance and
without complaint. President Polk and the
Treasury Department, at the head of which
was Mr. Walker himself, decided a^nst the
claim when the proclamation was issued for
the sale of the lands, and persisted in that de-
cision after the protest from the Board of Pub-
lic Works. Mr. £wing was so clear upon the
point, that no appeal to the President and no
opinion from the Attomey-QeuOTal could shake
his conviction. Mr. Stuart waa equally dear,

64 U. 8.

1850.

DuBUQiTB A Pacific R R. Co. y. Lttohfibld.

66-00

but perhaps -not equally firm. The weight of
Mr. McGlelland*8 authority and that of Mr.
Cushing, is thrown against the claim. Mr.
Buchanan and Mr. Thompson have decided
against it, more solemnly, if possible, than any
of their predecessors. If the opinion of public
officers De worth anything at all, there are
enough of them here to settle many cases like
this. All the actual decisions in the case are
against the claim.

It will not fail to be observed by the court,
that of the three opinions which have been
given in favor of this claim, those of Mr.
Young and Mr. Walker are wholly unaccom-
panied by reasons, and Mr. Johnson's argu-
ment is so unsatisfactory that it carries with it
no weight except that of his name. He reached
his conclusion by transposing the words of the
grant, a process which might change the mean-
ing of any law that was ever written. Besides
that, his judgment was manifestly influenced
by the erroneous doctrine, that in cases of
doubt such grants as this should be executed
" rather in a large and liberal, than a restricted
spirit."

6 Op., 243.

Moreover, he did not regard this question of
construction as being important. He took Mr.
Walker's letter as conclusive and binding on
the government. He thought it immaterial
whether it was right or wrong, and declared
himself " glad to be of opinion that it could not
be legally revoked."

If the court shall reach this part of the case,
and be of opinion that the words of the grant
are sufficiently ambiguous to leave the intent
of the Legislature in doubt, it will then become
necessanTto determine what rule of interpreta-
tion shall be applied to it. Shall the govern-
ment or the grantee have the benefit of the
doubt? A more important question to the
public treasury and the morals of the people
has never been determined in this court. If it
be once settled that acts of this kind are to be
construed largely in favor of the parties who
get them passed, it will take millions every
year, in land and money, to satisfy claimants
to whom Confess never intended to give
thousands. It is not necessary to show our re-
spect for Congr^, bv affecting to be ignorant
that legislation like this is generally procured
upon the solicitation of parties interested. The
public and well known history of the country
proves that land grants have been sometimes
carried by means much worse than solicitation.
Will you put it into the power of parties to
possess themselve€ of the public dpmain or the
public money, under grants which they them-
selves shaped so as to make them unintelligible;
that would be throwing the door wide open to
the most dangerous and most demoralizing
species of fraud. It would be an offer of the
most enormous premium to every man whose
ingenuity is great enough to practice deception
upon Congress. I have no fears that this court
will make itself responsible for the consequences
which would follow from such a rule.

I do not ask Your Honors to say that a strained
consiruction in favor of the public right should
be put on any statute. Lict every grantee have
what Congress gives him in words which are
tolerably plain to the apprehension of intelligent
men. But do not give by oonstrucUon, what

Bee 28 How.

the grant itself was not understood to convey.
There is no hardship in this. When a legisla-
tive body means to give anything, the words
can easily be found to express that meaning.
It does not happen once in a tliousand times,
that the language of a grant, construed strictly,
carries less than the Legislature is willing to
bestow.

But even if you are disposed to repudiate the
general rule, or change it so as to give a public
grantee the benefit of a reasonable doubt, what
could he take by such a doubt as this — a doubt
which has no countenance in the law itself — a
doubt which the authors of the grant never
dreamed of — a doubt which did not enter the
heads of the grantees themselves, until it was
suggested by a loosely written and ill consid-
ered letter from the Land Office — a doubt so
dim that it was not seen by the State of Iowa
or any of her agents, while they were accepting
the law with a construction which confined
them to its words— a doubt which was steadily
repelled by nearly all the officers of this gov-
ernment, and never entertained by any long
enough to be acted on? Doubts may do good
service sometimes, but not such doubts as this.

The counsel for both parties made extended
replies to the above argument by the Attorney-
General, especially denying the charge that
there was no real controversy between the par-
ties to the record. In support of this denial,
several affidavits were also filed.

As this part of the argument but slightly af-
fects the merits of the case, it is not here given.

Mr. Justice C&tron delivered the opinion
of the court:

The land in^ntroversy lies within five miles
of the Des Momes River, and within the limits
of what was the Iowa Territory when the Act
of Congress of 1846 (0 Statat L.,77) was passed,
making the ^nt to improve the navigation of
the Des Moines River from its mouth to the
Raccoon Fork; but the land sued for lies nearly
sixty miles above the mouth of that fork.

Litchfield,the plaintiff below, claims by virt-
ue of a title derived from the State of Iowa,
acting as trustee of the Des Moines River fund.

The Dubucjue and Pacific Railroad Company
is in possession of the section of land, under a
grant from Congress for the purpose of con-
structing a railr^ul from Dubuque, on the Mis-
sissippi Kiver, to a point on the Missouri River
near Sioux City. This grant was made to the
State of Iowa in 1856 (11 Stat, at L.. 9) and is
for every alternate section (designated by odd
numbers), for six sections in width on each side
of the road. The road was located, the lands
designated by the United States, and accepted
by Iowa; and then they were transferred to
the Railroad Company by the Legislature of
that State. The section in dispute is one of
those vested in the Railroad Company. This is
the younger and inferior title, if the first grant
for improving the river extends along its whole
length ; and the material question in this case is,
whether the grant made by the Act of Congress
of August 8th, 1846 (9 Stat, at L., 77), for the
river improvement, is limited to lands lying
next the river; and below the Raccoon Fork.
And although this depends on a true construc-
tion of the Act, still it becomes necessary to
give a brief historical statement of the proceed-

607

66-90

SxTPBfiia Cotmt of tbr Untpsd Statbs.

Dec. Tkbk,

ings before the Executive Department respect-
ing this claim, extending through more than
ten years; these proceedings being relied on,
either to conclude the title, or to control the
construction of the Act of Congress.

They are as follows: By the Act of Congress
approved August 8th, 1846 (9 Stat, at L.. 77),
a grant of land was made to the Territory of
Iowa "for the purpose of aiding said Territory
to improve the navigation of tne Des Moin^
River from its mouth to the Raccoon Fork, in
said Territory, one equal moiety, in alternate sec-
tions, of the public lands (remaining unsold and
not otherwise disposed of, incumbered, or ap-
propriated) in a strip five miles in width on
each side of said river, to be selected within
said Territory, by an agent to be appointed by
the governor thereof, subject to the approval of
the Secretary of the Treasury of the Unit^
States."

The 4th section of the Act provides that the
lands shall become the property of the State of
Iowa on her admission into the Union, which
was very soon expected to occur. The Governor
of Iowa was notified by the Commissioner of
the General Land Office of this Act, soon after
its passag[e, viz. : October 17, 1^, by letter, in
which it is'stated that. '* under the grant, the
Temtor}r is entitled to the vacant lands, in alter
nate sections, within five miles on each side of
the Des Moines River, from the northern bound-
ary of Missouri to the Raccoon Fork."

No objection to this construction was then
made by the stat« authorities, and the agent of
the State proceeded to make the selections with-
in the limits above stated.

No question as to the extent of this grant
arose until nearly two years aft^. It appears,
however, that a letter dated February !^d,1848,
from Commissioner Youn^, did not adhere to
the restrictions mentioned m the first letter, but
its terms seem to concede to it a greater extent.
And in 1849 this question was brought to the
attention of the Secretary of the Treasury, by
the delegation of the State in Congress; they
claiming that the State was entitled to land
along the whole course of the river to its source.
In reply (March ad, 1849), the Secretary, Mr.
Walker, expsesses an opinion that the '* grant
extends on both sides ox the river from its source
to its mouth, but not into lands on the river in
the State of Missouri." This opinion conceded
that nine hundred thousand acres above the
Raccoon Fork was within the grant.

In conformity with this view of Mr. Walker,
selections of lands above the fork were reported
by the Commissioner of the General Land Office,
for confirmation, to the Secretary of the Inte-
rior, Mr. Swing; the supervision of the public
lands having passed from the Treasury to the
Interior Department. Mr. Ewing, upon the
ground that the opinion of Mr. Walker had
not been carried into effect, held that the same
was open for revision; and not concurring
therein, refused to approve the selections. But,
as Congress was then in session, and might
"extend the grant," ordered a suspension of
action in the matter.

From this decision of Mr. Ewing an appeal
was taken in 1850 to the President, by whom
the matter was referred to the Attorney-General,
Mr. Johnson, who, in his opinion of July 19,

608

1850, construed the grant as extending above
the Bsccoon Fork.

No action appears to have been taken under
this opinion of Mr. Johnson ;- and the question
remained open at the accession of the next Pres-
ident, Mr. Fillmore, when it was submitted to
the Attorney General, Mr. Crittenden, who, on
the 80th June, 1851, replied that the letter of
Mr. Walker had no binding effect on his suc-
cessor, being but an opinion expressed, not an
act done; that the opinions of the attomeys-
^neral are merely advisory ; and that the grant,
in his opinion, was limited to the lands below
the fork. In this opinion it appears that Mr. Stu-
art (then Secretary of the Interior) concurred;
but afterwards, on the 29th October, 1851,
he addressed the Commissioner of the Gkneral
Land Office on the subject, and directed the
selections above the Raccoon Fork to be report-
ed for his approval, for the reasons and upon
the conditions therein stated, viz. : '* that the
question involved partakes more of a judicial
than of an executive character, which must ulti-
mately be determined by the judicial tribunals
of the country. " In conformity with this decis-
ion,lists of lands above the fork were submitted
by the commissioner in October, 1851, and
March, 1852, and approved by Mr. Stuart in
accordance with the views expressed in his let
ter of the 29th October, 185 1. Acting under
this authority, the commissioner, in 1858, sub^
mitted lists to Secretary McClelland also, which
were approved. The subject was again brought
before the Secretary of the Interior in 1856,
and by him referred to Attorney-General Cush-
ing. Mr. Cushing, in his reply of 29th May,
1856, advised that a proposition set forth by him
be submitted to the State for a final adjustment
of the matter. This proposition was not ac-
cepted by the State; and in 1858 the subject was
laid before Attorney- General Black, whose opin-
ion clearly restricted the grant to the river be-
low the Raccoon Fork; that being in accord-
ance with the construction originally given tt
at the General Land Office. On mature con-
sideration, we are of opinion that the title
of neither party has been affected by the pro-
ceedings in the Land Office, or by the opinions
of the officers of the Executive Department, but
that the claims of the parties under the two
Acts of Congress must be determined by the
construction to be given to those Acts. This
we are required to do in deciding this cause.

The caption of the Act of 1846 informs us
that the donation was made to aid in the im-
provement of the navigation " of the Des Moines
River;" and the body of it grants to the Terri-
tory (and State) alternate sections, to improve
the navigation '' of the Des Moines River, from
its month to the Raccoon Fork," in a strip five
miles in width on each side of '^said nver."
And we are further told (sec. 8d), that "the
said River Des Moines shall forever remain a
public highway for the use of the Gk>vemment
of the United States, free from any toll or other
charge whatever for any property of the United
States, or persons in their service, passing
through or along the same."

What navigable river was to be improved,
and was in the contemplation of Congress in
1846, when the northern portion of Iowa was a
wilderness? Surely not the small Btreams and

64 U.S.

1859.

DuBUQUB & Pacific R. R. Co. v. Litchfibld.

66-90

brooks reaching into Minnesota Territory, as is
here claimed.

Congress recognized the Des Moines River,
over which a free passage was secured, to be a
stream emptying into the Mississippi; and from
its mouth to the Raccoon Fork was the "said
river," on each side of which the strip of land
granted was to lie.

As proof of which, we refer to the following
facts: The bill was introduced into the House
of Representatives by Mr. Dodge, the delegate
from Iowa Territory, and was the subject of a
report by the Committee on Public Lands,
which report is a document in the case agreed,
and the facts therein stated are admitted.
Among these facts, it appears (by a previous re-
port of Captain Fremont, who had officially ex-
plored the Des Moines River) that from its mouth
to the Raccoon Fork was two hundred and three
miles : that it presented no obstacles to naviga-
tion that could not be overcome, at a slight ex-
pense, by the removal of loose stones at some
points, and the construction of artificial banks
at some few others, so as to destroy the abrupt
bends, and that this was all that would be re-
quired to render it navigable; that the variable
nature of the bed and the velocity of the current
would keep the channel constantly clear.

The committee's report states that the country
is occupied and cultivated as high up as the
Raccoon Fork ; and that a clear and uninterrup^
ed navigation could be secured at an expenditure
not great when compared with the object; that
the land appropriated by the bill is similar in
its character and object to many grants already
made by Congress for other western Territories
and States, and at the same time less in quantity;
but it is believed that it will be sufficient to ac-
complish the desired improvement; and as evi-
dence of this. Captain Fremont's statement is
relied on. The committee was, however.of the
opinion that locks and dams might be required
at some of the ripples.

Accompanying this report, as a part of it, is
a letter from the Commissioner of the (General
Land Office.obtained by Mr. Dodge (dated May
5tb, 1846), in which it is officially stated, " that
the amount of unsold land within five miles on
each side of the Des Moines River, from its
mouth to the Raccoon Fork, proposed to be
granted to the Territory of Iowa by House bill
No. 106, is estimated at 1^61,000 acres." The
bill No. 106. as reported, was passed into the
law before us. When we carry with us the fact
that the 261,000 acres of land were surveyed,
and the plats recorded in the General Land Of-
fice, to which surveys the commissioner's letter
referred, it is plain that the river, from its mouth
to the Raccoon Fork, was, in the view of Con-
gress, as manifestly as if the outlines of the tract
(or strip) had been given by a plan in connection
with the river. Of this we have no doubt; but
if we had doubts from any obscurity of the Act
of Congress, a settled rule of construction would
determine the controversy. All grants of this
description are strictly construea against the
grantees; nothing passes but what is conveyed
in clear and explicit language; and as the rights
here claimed are derived entirely from the Act
of Congress, th(^ donation stands on the same
footing of a grant by the public to a private
company, the terms of which must be plainly
expressed in the statute; and if not thus ex-

t)ee 33 Uow.

pressed, they cannot be implied. Charles Biver
Bridge v. Wa/rren Bridge, 11 Pet., 420.

We concur with the following citation and
reasoning of the plaintiff's counsel, to wit:
Lord Ellenborough, in his judgment in Qildart
V. Oladetone, 12 East, 638 (an action for Liver-
pool dock dues), says: *'lf the words would
fairly admit of different meanings, it would be
right to adopt that which is mere favorable to
the interest of the public, and against that of
the company, because the company, in bargain-
ing with the public, ought to take care to ex-
press distinctly disUnclly what payments they
are to receive,and because the public ought not
to be charged unless it be clear that it was so
intended."

**The reason of the above rule is obvious —
parties seeking ' grants for private purposes
usually draw the bills makins^them. If they
do not make the language sufficiently explicit
and clear to pass everything that is intended to
be passed, it is their own fault; while, on the
other hand, such a construction has a tendency
to prevent parties from inserting ambiguous
language for the purpose of taking, by ingen-
ious interpretations and insinuation, that which
cannot be obtained by plain and express terms."

The second ground relied on in support of
Litchfield's title is, that he is an innocent pur-
chaser from the Slate of Iowa of land conceded
to belong to the improvement fund by the offi-
cers and agents of the United States; and hav-
ing been certified as part of the grant, and as
being one of the odd sections belonging to Iowa,
the principal is bound by the acts of his agents,
and that these binding acts cannot be revoked
at the pleasure of the Secretary of the Interior,
as is here assumed to be done.

We have set forth the proceedings on this
claim, and have already expressed the opinion
that the courts of justice are not concluaed by
them. The principal reason, however, why
the conveyance to Litchfield, under the river
improvement grant, cannot be upheld, is this :
the Act of Con cress was a direct grant to Iowa
in fee of an undivided moiety of the whole tract
lying on each side of the river from the Rac-
coon Fork to the Missouri line. Congress had
the undoubted power to make the grant and
vest the fee.

No authority was conferred on the executive
officers administering the public lands to do
more than make partition between the tenants
in common, Iowa and the United States, in the
manner prescribed bv the Act of Congress.

The premises in dispute lie sixty miles be-
yond the limits of the tract granted ; it was,
therefore, impossible to make partition, under
this grant, of lands lying outside of its bounda-
ries; and all attempts to do so were merely nu-
gatory. It follows that the plaintiff below has
no title, and his action must fail.

The Attorney-General has intervened, and in-
sists that this action is a mere fiction, and was
intended to draw from this court an opinion,
affecting the rights of the United States and
others, the parties to this suit have nothing at
stake, and that the case should be dismissedf.

To meet this imputation of contrivance, the
parties and their counsel have filed affidavits and
statements, from which it satisfactorily appears
that the action was broueht by a bona fide claim-
ant under the grantee of the river improvement

509

420-438

BUPRBICB COXTBT OF THB UXTrBD STATBS.

Dbc. Tsbh,

fund against the Railroad Company; and al-
though the case agreed was made up in a friend-
ly spirit, neyertheless the object was to try the
title, and this wus done at the instance of some
of the executiye officers.

If the judgment of the district court were af-
firmed, the defendant below would lose the
land; and it being reversed, the plaintiff below
loses it. The action was obviously brought
to carry out Secretary Stuart's suggestion, when
he said, **that the question involved partakes
more of a judicial than an executive cliaracter,
and must ultimately be determined by the ju-
dicial tribunals of the country."

We have, therefore, felt bound to hear and
decide the cause on its merits; and finding that
the plaintifit below has no title, im direct that
the judgment of (he distrust court be reversed, and
the cause remanded; and that court is ordered
to enter judgment for the defendant belou).

rited-« Wall!, 686 ; 17 Wall.. 147, IfiO : 90 U. 8., 740 ;
101 U.S., 740,763,774; 8 Ben., 416: 1 Md.,24a; 12
Kan., 418.

CHARLES BLIVEN and EDWARD B.
MEAD, Plffs. in Er

THE NEW ENGLAND SCREW COM-

PANY.

(See S. C, 83 How., 480-433.)

Custom cannot excuse from performance ofetmr
trad — othenoisefiohen custom forms part of the
contract — evidence of custom, when admissible,
and with what effect — when a part of the con-
tract— written evidence construed by court.

The custom of a party to deliver a part of a quan-
ity of ffoodfl contracted to be delivered, though In-
THiiaDle, cannot excuse such party from af ulfcom-
pllance with his coo tract.

To excuse full compliance, mere knowledsre of
such a usuaffc would not be sufficient, but it must
appear that the custom actually constituted a part
of the contract.

But when such custom was well known to the
other contracting party, and actually formed a
part of the contract, it may furnish a leiml excuse
for the non-delivery of a proportion of the ffoods.

Parol evidence of custom, consequently, is gen-
erally admissible, to enable the court to arrive at
the real meanlnflr of the parties.

Omissions may, in some cases, be supplied by the
introduction of the custom : but it is not admitted
to contradict or vary express stipulations or provis-
ions of the contract.

Proof of usage is admitted, either to interpret or
to ascertain the nature and extent of the contract,
in the absence of express stipulations, and where
the meaning is equivocal or obscure.

Where defendants adopted a rule to accept all
orders for goods, and to fill them in the order they
were received, and that rule was well known to the
plaintiffs, evidence to prove that the orders had
been taken up in turn, and 111 led in proportion to
the orders given by other customers, was admissible

And evidence to show what had been the usage
of the defendant's business was also admissible, be-
cause that usajre constituted an essential part of
the several contracts.

Written evidence, as a general xule, must be con-
strued by the court.

The charge to the Jury must receive a reasonable
interpretation.

NOTC— ITsooe and custom, admissibility of, in coti-
struction of contracts. See note to Adams v.
Otterbach, 56 U. S. (15 How.), 639.

610

Submitted Mar , tl, 1860, Decided Apr. 9, 1860.

IN ERROR to the Circuit Court of the Unit-
ed States for the Southern District of New
York.

The history of the case and a statement of
the facts appear in the opinion of the court.

Mr, Geo. W. Wright, for plaintiffs in er-
ror:

1. The delivery of the full quantity of goods
agreed upon cannot be excused by any custom
to deliver only a part.

lAnstey v. Latdy, 26 Yt., 123; The Beeside, 2
Sumn.,567.

2. The custom (as well as the contract) must
be mutual. Bliven and Mead might with eoual
propriety set up a custom when they order lO.-
000 gross of screws, to receive but 1,000, as the
New England Screw Companv, on accepting
such order unconditionally, u> deliver only the
smaller Quantity.

Here tne custom alleged was all on one side.
If screws fell in price, Bliven & Mead were
obliged to receive the whole. If the screws rose
in value, Bliven and Mead could only. claim what
the Company in its discretion saw fit to deliver
them, duch rise took place.

See BdtfoTdy. Adams, 2 Duer, 471.

8. The custom proved was illegal, as danger-
ous, and contrary to the policv of the law.

1. It varied express and written contracts.
Hone V. Mutual Bafeiy Ins, Oo,, 1 Sand.,

187; The Beeside, 2 Sumn., 569.

2. The delivery of goods at the time and in
the quantity expressly agreed on, is as obliga-
tory as the payment of money. A debtor's cus-
tom to pay his debt "in course, and as far as
he consistently can in view of his obligations
to his other creditors," will not excuse him
from paying his notes given without any such
limitation.

4. Custom, to be legal, must be the ^neral
custom of the trade, and not (as was this case)
the custom of the party only.

What was proved was not properly a custom,
but was the habit of the defendants in error, to
fulfill their obligations only so far as they found
it convenient.

5. If such custom (or habit) could legally be
proved, the extent and effect thereof should
have b^n submitted as a question of fact to the
jury under the evidence, and not determined
by the court.

6. Judgment should be reserved.

Messrs. T. A. Jenekes and E. W. Sion^-
ton* for defendant in error:

1. The evidence of the custom of the New
England Screw Company to fill orders In pan
only, was properly admitted under the general
rules, as to the admissibility of evidence of cus-
toms and usages.

Benner v. Bank of Columbia, 9 Wheat, 581 ;
citing TeaUm v. Bk. Alexandria, 5 Cranch,
49; see, also. Mitts v. Bank of U. 8,, 11 Wheat,
481; Bank of Washington v. TripteU, 1 Pet.,
25; Van Ness v. Pacard, 2 Pet.. 187, Cookendorf^
er V. Preston, 4 How.. 824; Bawling v. Barri
son, 6 How., 258; Adams y, Otterback, 15 How.,
544.

And in the circuit courts of the United States.

TroU V. Wood, 1 Oall., 448; The Beeside, 3
Sumn., 569.

See, also, the following text writers:

64 l\ S.

1859.

Bliyen y. Nbw Ehgland Scbbw Co.

480-488

1 Bl. Com.. 75; 2 Stark. Ev.. 258; 1 Phil.
£▼., 556; 2 Oreenl. Ev., sees. 251, 252; Sm.
Merc. L., 29, 80, and note. And the following
cases: Oahay r. lAyod, 8 Barn. & C, 798;
Stewart v. Cauty, 8 Mees. & W., 160; citing]:
PeUy ▼. Royal Exch. Co., 1 Burr., M{\Ougier
V. Jennings^ 1 Camp., 505, wofc; Palmer v.
Blackburn, 1 Bing., 61 ; TeaU v. Pirn, 1 Holt..
92; Noble v. Kennoway, Doug., 510; Loring v.
Qurney, 5 Pick., 15; Naylar v. iS^mm^, 4 G. &
J.. 274.

2. The contracts for the sale of screws by
the defendant Company were subject to the
custom of the defendant Company, to fill the
same in part only : and the contract with the
plaintiffs was made, subject to and controlled
by this custom.

See the following authorities:

Benner v. Bank of Columbia; Mills v. Bank
of 0. 8.; Van Ness v. Pacard; Cktokendorfer v.
Preston; Bowling v. Harrison; Adams v. Otter-
back, as cited above; 2 Greenl. Ev.. sees. 251,
252, and notes; Stetoart v. Cauty, ubi sup.

It was the usage of an individilal, and the
plaintiffs had actual notice.

See, also, as to the law TOverning the usage
and habit of trade of an individual, the follow-
ing authorities:

2 Greenl. Ev., sees. 251, 262; Loring v. Our-
ney, 5 Pick., 15; Naylor v. JSemmes, 4 G. & J.,
274; Noble v. Kennoway, Doug., 510.

3. The Judgment of the court below should
be affirmed.

Mr Justice Clifford delivered the opinion of
the court:

This is a writ of error to the Circuit Court
of the United States for the Southern District
of New York.

According to the transcript, the suit was
originally instituted in the Supreme Court of
the State of New York by the present plaint-
iffs, who were citizens of that State; but was
afterwards regularly removed, under the 12th
section of the Judiciary Act, into the Circuit
Court of the United States, because the cor-
poration defendants were citizens of the State
of Rhode Island.

It was an action of assumpsit, brought to re-
cover dama^ for the supposed breach of six
separate and distinct contracts, in which the
defendants, as was alleged in the declaration,
stipulated to deliver to the plaintiffs, pursuant
to their written orders given at sundry times, cer-
tain quantities of screws, usually denominated
wood screws, of various sizes and descriptions,
as were therein specified. Readiness to perform
on the part of the plaintiffs, and neglect and
refusal on the part of the defendants to deliver
the goods, after seasonable demand, constituted
the foundation of the respective claims for
damages as alleged in the oeclaration. Those
claims are set forth in eighteen special counts,
to which are also added the common counts, as
in actions of indebitatus assumpsit. Of the
several contracts, the first is alleged to have
been made on tlie 7th day of October, 1852, and
the last on the 19th day of April. 1858.

At the May Term, 1855, the parties went to
trial upon the general issue. To prove the
several agreements, the plaintiffs relied on cer-
tain correspondence which had taken place
between the parties upon this subject, consist-
See 2S How.

ing of letters written by the plaintiffs to the
defendants, in the nature of oitlers or requests
for the goods, and the repUes thereto written
by the defendants.

As appeared by the proofs, the plaintiffs were
merchants, engaged in buying and selling hard-
ware, and the defendants were engaged in
manufacturing the description of goods speci-
fied in the declaration. They were in point of
fact the sole manufacturers or the article in the
United States, and were constantly receiving
orders for the article from their customers
faster than they could fill them, and for larger
quantities than they were able to produce.

Orders had been given for this article by the

Elaintiffs prior to the date of this controversy;
ut the evidence in the case does not show
when their dealings commenced. Six orders
of like import were given by the plaintiffs, dur-
ing the fall of 1852 and the earlj part of the
year 1858, for large quantities oi the article, of
various sizes and descriptions. This suit was
brought to recover damages for not filling those
orders, which, it is insisted by the plaintiffs,
had been accepted without any reservation.
Some of them had been filled in part only, and
others had not been filled for any amount when
the suit was commenced.

It was denied by the defendants that the or-
ders had been accepted without condition. On
the contrary, they insisted that the plaintiffs
well knew that the supply was greatly less
than the demand, and that the orders were only
accepted to be filled in their turn, as the defena-
ants were able to produce the article.

To support the first three counts of the dec-
laration, the plaintiffs, among other things not
necessary to be noticed, introduced three let-
ters—two from themselves to the defendants,
and the reply of the defendants to the same.
Reference will only be made to such brief por-
tions of the correspondence as appear to be
essential to a proper understanding of the legal
questions presented in the bill of exceptions.
Dissatisfaction was first expressed by the plaint-
iffs in their letter dated on the 80th day of Sep-
tember, 1852. In that communication, they
simply refer to the long delay that has occurred
in filling their orders, and nimish a memoran-
dum of the amount and sizes of the article
claimed by them to be due and not delivered,un-
der their order of the 29th of June of same year.
They state that after three months' delay, only
about one and one fourth per cent, of the same
has been filled, and that they have not a gross
of screws under an inch in their stock. Request
was also made in the same communication that
the plaintiffs would send at once all they could
of the article, and the balance of the same as
soon thereafter as it was possible. That re-
quest was in effect repeated in another letter,
written on the 5th day of October. 1852 : and on
the 17th day of the same month, the defendants
replied, saymg that the order referred to would
be taken up at the earliest possible day.

No further correspondence applicable to the
first three counts was introduced by the plaint-
iffs in the opening of the case.

They then gave evidence to prove the second
agreement, as alleged in the fourth, fifth and
sixth counts of the declaration. For that pur-
pose they introduced two letters— one from
themselves to the defendants, dated on the 15th

611

420-183

8uFB2::te Coubt of thb Uhitbd IStatba.

Dsc. Term,

day of October, 1852; and the other from the
defendants to them in reply, dated on the fol-
lowing day. Their letter to the defendants con-
tained an order for three thousand seven hun-
dred and fifty gross of screws, half to be deliv-
ered by the 15th day of March then next, and
the other half a month later, subject to the
regular discount at the time of delivery. That
order was given thus earlv, as the plaintiffs
stated, with a view to avoid thereafter the in-
convenience they had suffered from not having
their orders filled, and because they anticipated
a short snpply of the article the next season.
In the same letter, they informed the defend-
ants that it was given as an additional order,
and requested that those previously sent might
be filled without further delav.

To that communication the defendants re-
plied, acknowledging its receipt, and saying
that the order had been entered in their books,
to be executed at the times named. They also
referred to the previous orders, sayine they
would do what they could to fill them before
navigation closed on the canals; but added,
that they could only take them up in course, as
they haa a great many orders from other parties
in tne same condition.

Evidence was then offered by the plaintiffs to
prove the third agreement, as alleged in the
8eventh,eighth and ninth counts in the declara-
tion. To support those counts, two letters were
introduced — one from the plaintiffs to the de-
fendants, dated the 4th day of November, 1852;
and the reply of the defendants to the same,
which was &ted on the sixth day of the same
month. By the letter first named, the defend-
ants were furnished with another order of the
plaintiffs for an additional quantity of screws,
and were requested to place the order in their
books, to be filled as fast as possible, at a given
rate. Previous orders were also referred to in
the same letter, and the plaintiffs complain that
they have been filled in their turn ; adding that
they have not a gross of gimlet-point screws in
their stores, and earnestly requested the defend-
ants to send them a lot by steamboat on the
following day. Two days afterwards, the de-
fendants acknowledged the receipt of tlie order,
and informed the plaintiffs that it had been en-
tered in their books, to be taken up in course.

Those letters constitute the only evidence of-
fered by the plaintiffs in the opening to prove
the third agreement.

They then gave in evidence another order
from themselves to the defendants, to prove the
fourth agreement, as alleged in the tenth,
eleventh and twelfth counts of the declaration.
It was dated on the 7th day of November, 1852.
In the same communication, they stated that
they were in great want of a certain description
of screws, and expressed the hope that the
plaintiffs would send what they could of the
article by steamboat without delay, adding:
" We have always said, send what you can of
our orders as fast as you get a case or two
ready, or to that effect. " To that letter the
defendants replied, under date of the 19th of
the same month, saying that the best they could
do was to enter tbe order, to be taken up in
course, intimating that perhaps it might be ac-
complished in about two months.

Similar evidence was given to prove both tbe
fifth and the sixth agreements, as alleged in the

618

six remaining counts of the declaration. Two
orders given by the plaintiffs were introduced
for that purpose. One was dated on the 10th
day of February, 1853. and the other on the 19th
day of April, of the same year. They were
each for twenty thousand gross of screws; and
the defendants were requested to enter the or-
ders in their books, to be filled as soon as pos-
sible after they should have completed those
previously given. Separate answers were given
by the defendants to each of these orders, to the
effect that they would be entered in the books
of the defendants, to be taken up in course or
in their turn, and be filled when they reached
them, as far as they should be able to do so,
consistently with their obligations to other cus-
tomers.

No part of the two orders last named had
been filled when this suit was como^enced. De-
mand was made of the defendants, on the 30th
day of September, 1858, for the delivery of
such proportions of the several orders as had
not been previously filled. At the same time,
the plaintiffs rendered their account, and tend-
ered to the defendants their promissory notes
for the respective sums which would become
due to the defendants on making such de-
livery.

Such was the substance and effect of the evi-
dence Introduced by the plaintiffs in tbe open-
ing, so far as it is necessary to consider it at the
present time. Many other matters were stated
in the correspondence; but as they are not ma-
terial to this investigation, they are omitted.

To maintain the issue on their part, the de-
fendants, among other things, introduced a let-
ter from the plaintiffs, addressed to them, dated
on the Sd day of September, 1852, in which in-
quiry was made of the defendants why they
did not fill the orders given by the plamtiffs.
They also stated in the same letter that not a
week passed without their hearing of the de-
fendants taking and executing orders from
other customers; but admitted, in effect, that
they had long since been given to understand
the rule of business adopt^ by the defendants
in that behalf , and only complained that preced-
ence was given to the first orders from other
customers. ^

Testimony was also introduced by the de-
fendants, that they had some five hundred cus-
tomers, and that the orders of the plaintiffs
had been taken up and filled in proportion to
the orders given by other customers, as the de-
fendants manufactured the article and were able
to deliver the goods. To that testimony the
plaintiffs objected ; but the court overruled tbe
objection, and it was admitted, and the plaint-
iffs excepted.

All of the orders given by the plaintiffs, ex-
cept the two last named, were filled in part,
and, as the defendants proved, in due propor-
tions to the orders of other customers, as the
article was produced. They also proved, that
when orders were given and accepted without
the price of the article being agreed, it was
their custom, and according to the usage of
their business, to charge at the rates ruling si
the time of the delivery; and if during the in-
terval the discount from fixed rates had in-
creased, the purchaser had the benefit of the
allowance; but if prices had risen, and the dis-
count was less, then the purcha&er paid ac.

«4 U. S.

1869.

Bliybn v. Nbw ENeiiAHD ScBBw Co.

420-488

<;ording to the increased price. To this testi-
mony, as to the usage of the defendants'
business, the plaintiA objected, but the court
overruled the objection; and the testimony
having been admitted, the plaintiffs excepted.
That practice, however, was not applicable to
customers who were not duly notified of the
usage, but all such had their orders filled at
former rates. Orders from other customers
were received by the defendants throughout
the period of these transactions, but they re-
f used to accept orders from new parties.

Proof was also offered by the defendants,
tending to show that the profit to the manu-
facturer was less upon the small sizes of the
article than upon the large, and it was admit-
ted by their counsel that the market price of
the goods advanced after the orders of the
plaintiffs were given. Much additional testi-
mony was intnxluced on the one side and the
other, to which it is not necessary to refer, for
the reason that it presents no question for the
decision of this court. On this state of facts,
the presiding Justice instructed the jury to the
^ect that the several contracts for the sale of
the goods by the defendants to the plaintiffs
were subject to the custom of the defendants to
fill the same in part only, and that the plaint-
iffs, from having been dealers with the defend-
ants, and from the correspondence between
them, were chargeable with notice of the de^
fendants' custom to fill their 'contracts only in
the order they were accepted, and in propor-
tion with each other, and not in full, according
to the strict terms thereof. Under the rulings
and instructions of the court, the Jury return^
their verdict for the defendants, and the plaint-
iffs excepted to the indtructions. Exception
was tal0Bn to two of the rulings of the court and
to each of the instructions to the jury, but they
present only one question for decision and.
therefore, may well be considered together. No
evidence of general usage or custom in the or-
dinary sense of those terms was offered in this
case, and no question touching the general
rules pf law upon that subject is presented for
the decision of this court It may also be safely
admitted that the custom of a party to deliver
a part of a quantity of goods contracted to be
delivered, though invariable, cannot excuse
such' party from a full compliance with his con-
tract, unless such custom is known to the other
contracting party, and actually enters into and
forms a part of Uie contract. Mere knowledge
of such a usage would not be sufficient, but it
must appear that the custom actually consti-
tuted a parl^ of the contract. But when it ap-
pears that such custom was well known to the
other contracting party as necessarily incident
to the business, and actually formed a part of
the contract, then it may furnish a legal excuse
for the non-delivery of such a proportion of
the goods as the general course of the business
and the usage of the seller authorize, for the
reason that such general usage, being a part of
the contract, has the effect to limit and qualify
its terms. Linsley v. Lavdy, 26 Yt., 187.
Customary rights and incidents, universally at-
taching to the subject-matter of the contract in
the plaioe where it was made, are impliedly an-
nexed to the language and terms of the con-
tract, unless the custom is particularly and ex-
pressly excluded. Parol evidence of custom,

8ee 28 How. U. »., Book 16.

consequently, is generally admissible to enable
the court to arrive at the real meaning of the
parties, who are naturally presumed to have
contracted in conformity with the known and
established usa^. But parol evidence of cua-
tom and usage is not admitted to contradict or
vary express stipulations or provisions restrict-
ing or enlarging the exercise and enjoyment of
the customary right. Omissions may be sup-
plied, in some cases, by the introduction of the
custom, but the custom cannot prevail over or
nullify the express provisions and stipulations
of the contract. 2 Add. on Cont., 970. Proof
of usage, says Mr. Oreenleaf , is admitted either
to interpret the meaning of the language of
the contracts, or to ascertain the nature and ex-
tent of the contract, in the absence of express
stipulations, and where the meaning is equivo-
cal or obscure. 1 Oreenl. Ev., sec. 292. Its
true and appropriate office is to interpret the
otherwise indeterminate intention of the par-
ties, and to ascertain the nature and extent of
their contracts, arising not from express stipu-
lations, but from mere implications and pre-
sumptions, and acts of a doubtful or equivocal
character. Ihe Beemde, 2 Sumn. , 567. Noth-
ing can be plainer than the proposition that
the evidence in the case provea that the supply
with the defendants was much less than the de-
mand of their customers. To avoid dissatis-
faction, therefore, they were obliged to devise
some system which would enable them to do
equal justice among those who were properly
competing for the article. Accordingly, they
adopted a rule to accept all such requests, and
to enter the list in a book kept for the purpose,
and to fill them as far as possible in the order
they were received. They had been in business
for some time, and that rule had become the
custom of their trade, and, as such, was well
known to the plaintiffs during all the time of
these transactions. Many of their orders thus
given at short intervals had been expressly ac-
cepted to be filled in turn or in course, and the
correspondence plainly showed that the plaint-
iffs well knew what jvvas meant bv those terms.
Evidence to proye that the orders had been
taken up in turn, and filled in proportion to the
orders given by other customers, was, therefore,
admissible, in order to show that the defend-
ants had fulfilled their contract, and done no
injustice to the plaintiffs; and it is equally clear
that evidence to show what had been the usage
of the defendants' business was also admissi-
ble, because that usage constituted an essential
part of the several contracts which were the sub-
jects in controversy. EennerT, Bank of Chiang
oia, 9 Wheat., 588. After what has been re-
marked, one or two additional observations re-
specting the instructions given to the jury will be
sufficient. Written evidence, as a general rule,
must be construed by the court, and the first
instruction was confined to that purpose. It
gives the true exposition of the correspondence,
and therefore is not the subject of error. It is
insisted by the counsel of the plaintiffs that
the second instruction withdrew the evidence
of notice from the consideration of the Jury.

We think not, and for two reasons. In the
first place, it was the proper duty of the court
to construe the correspondence, and that of it-
self was sufficient to Justify the charge. But
the charge must receive a reasonable interpreta-

88 6W

48SM85

BUFBBMS Ck>UBT OF THB UnITBD BTATBa.

Dec. Tbbm.

t^on. In effect, the Jury were told that the evi-
eDoe, if true, showed that the plain tiffs had
notice of the custom of the defendants in regard
to the filling of the orders. It did not with-
draw the question as to the credibility of the
witnesses from the consideration of the Jury,
and that was all that could properly be sub-
mitted to their determination. In view of all
the circumstances, we think the exceptions
must be overruled.

The judgment of the drcuU eourt i$, therefore,
afflrmed, with eoete,

AlTg-SBlatctaf., Ul.

Cited-1 Wail., 870, 471 ; 6 Wall., 919; 10 Wall., 068,
666 : 17 Wall., 142 : 18 Wall., 261 ; 28 Wall., 608 ; 100 U.
8., 082: 18 Otto, 182:1 CUff., 822 ; 8 Cliff ., 180, 206, 200,
810,828.

CHARLES BLIVEN akd EDWARD B.
MEAD, Plffs, in JKr.,

THE NEW ENGLAND SCREW COM-

PANY.
(See B. Cm 28 How., 488-486.)

DediAon in BUven v N. B. Screw Co., ante, p.

610, afflxmed.

All the questions in this case have already been
ooDBldered and decided by this court in the preced-
ioff case, between the same parties.

Sutrndtted Mar. tl, 1860. Decided Apr. 9, 1860.

IN ERROR to the arcuit Court of the United
States for the Southern District of New
York.

The history of the case and a sufficient state-
ment of the lacts appear in the opinion of the
court.

See, also, the preceding case, which was be-
tween the same parlies and involved the same
transactions.

Mr. C^«o. W. Wvi^YkU for plaintlflFs in er-
ror:

On the specific contract% for screws, for the
recovery of the value of which suit was
brought, neither of them having been fulfilled,
no recovery can be had for the partial perform-
ance.

2 Kent's Com., 509; see note a, and cases
cited.

Mesen. T. A. Jenekes and E« W.
StonehtOB* for defendant in error:

If the contracts had been of the character
alleged by the plaintiffs in error, their right to
strict performance as a condition precedent to
paying; for the screws actually delivered, would
have been waived by their letter of May 19th.
1858, in which they authorized the defendants
in error to draw upon them for the value of
such as they had received. Not onlv would
this have operated as such waiver, but it is
very persuasive evidence, that the plaintiffs in
error, at that time, did not pretend that the de-
fendants in error were bound to deliver any
specified quantity of screws before being en-
titled to demand payment of the price.

It is in evidence also, by the testimony of
the witness Slocum, that the plaintiffs in error
had been customers of the defendants in error
for several years, and that the latter had never
executed any of their general orders in fuU;

614

and that they had always been in the habit
of making payments upop orders partly execu-
ted,' as they offered to do by the letter referred
to.

The contracts relied upon were not abaci ote.
but the six several orders referred to were ac
cepted conditionally, and with express refer-
ence to the usage perfectly well known to the
plaintiffs in error.

Upon this subject there was no conflict of
evidence, and what the contract between the
parties actually was. it was of course the duty
of the court to determine.

See. also, abstract of the arguments in the
preceding case.

Mr. Justice ClUTord delivered the opinion
of the court :

This case comes before the court upon a writ
of error to the Circuit Court of the United
States for the Southern District of New York.
It was an action indebitatue aseumpeit, brought
by the present defendants to recover the amount
due them for certain goods sold by them to
the plaintiffs in error, who were the original
defendants. At the May Term, 1855, the par
ties went to trial upon the general issue. To
prove the issue on their part, the plaintiffs in-
troduced a letter from the defendants, dated
on the 17th of May, 1863, and addressed to the
plaintiffs. In that letter the defendants ac-
knowledged the receipt of the plaintilTa ac-
count, but claimea a small deduction for an al-
leged error. Evidence was then introduced by
the plaintiffs, tending to ^ow that account
was correct.

Having proved their account, the plaintiffs
rested their case.

To maintain the issue on their part,^he de-
fendants set up that the goods charged in the
account had been delivered to them in pursu
ance of certain contracts made between the
parties, in which the plaintiffs had agreed to
sell and deliver to them large ouantities of
screws usually denominated wooa screws, of
various sizes and descriptions, but they had
failed to fulfill their contracts. They admiUed
that a part of the goods had been delivered;
but, inasmuch as no one of the contracts had
been completed, they insisted that a recovery
could not be had for a partial performance.

Their defense was sustained by the same evi-
dence as that introduced by them in the pre-
ceding case, and the plaintiffs offered the same
evidence in replp^ as they had in the other case,
to make out their defense. Similar exceptions
were taken by the defendants to the rulinga of
the court in admitting their testimony as to the
course of business, and the usage of the plaint-
iff's trade. After the evidence was clcMed, the
court instructed the Jurv that the several con-
tracts for the sale and delivery of the screws
by the plaintiffs to the defendants were subject
to the custom of the plaintiffs to fill the same
in part only. Under that instruction, the Jurr
returned their verdict in favor of the plaintim
for the amount of the account, together with
interest, and the defendants excepted. No
question is presented in the bill of exceptions
that has not already been considered and de-
cided by this court in the preceding case. For
the reascTns there given, we think the rulings
and instructions of the cireuit court were cur-

64 C.8.

1859.

Matob, &c,, of Nbw Yobk y. Raitsom.

487-491

rect, and refer to those reasons for the grounds
on which the conclusion in this case rests.

The JudpmerU of the eireuit court ie, tTiertfare,
affirmed, wUh eoete.

TBE MA.YOR. ALDERMEN AND COM-
MONALTY OP THE CITY OF NEW
YORK, Plff%,inEr.,

FRANKLIN RANSOM and UZZIAH WEN-
MAN.
(See 8. C, 88 How., 487-491.)

Actual damagee — emdence of, neeeseary — fu>t ee-
iabUehed by inference — meaeure of.

Where a plaiottff is allowed to recover only
** actual damajres,** he is bound to furnish evidence
by which the jury may assess them.

Actual damafres should be actually proved, and
cannot be assumed as a leiral inference from facts
which aflTord no data by which they can be calcu-
lated.

The possible advanta^re or train made by defend-
ants by the use of plaintilf's Improvement on their
machines, is not the measure of his loss.

If he falls to furnish any evidence of the proper
data for a calculation of his dama^re, he should not
expect that a Jury should work out a result for him
by inferences or presumptions founded on subtile
theories.

Submitted Mar, £S, 1860. Decided Apr. 9, 1860.

IN ERROR to the Circuit Court of the Unit-
ed States for the Southern District of New
York.

This action was brought in the court below,
by the defendants in error, to recover damages
resulting from the alleged infringement oi a
certain patent.

The trial below having resulted in a verdict
and Judgment in favor of the plaintiffs, the de-
fendants sued out this writ of error.

A further statement of the case appears in
the opinion of the court.

No counsel appeared in this court for plaint-
iffs in error.

Mr. Charles M« Keller, for defendants
in error:

As the counsel did not discuss the point on
which the case was decided in this court, the
argument is not here given.

Mr. Juetice Grier delivered the opinion of
the court:

The plaintiffs in error were defendants in
an action for infringement of a patent, *' for
a new and useful improvement in the mode
of applying water to fire engines so as to render
their operation more e£9cient."

On the trial, they took some twenty-four ex-
ceptions to the rulings of the court in their
charge to the Jury; but they have not seen fit
to appear in this court, and point out to us on
which of these numerous exceptions they prin-
cipally rely for the reversal of the Judgment.
The defendants in error have not elected to
have the writ of error dismissed for want of
prosecution, but have filed a printed argument
praying for an aifirmance of the Judgment.

On examination of the record, we find that
the bill of exceptions contains no copy of the
specification of the letters patent. Without

See 88 How.

this, we are unable to test the correctness of the
construction of the patent by the court below.

But there is one exception which the record
enables us to examine, and in which we think
there is error.

The defendant's 14th prayer for instruction
is as follows:

'*The plaintiffs have furnished no data to
estimate actual damage, and therefore, in no
aspect of the case can they recover more than
nominal damages."

If the predicate of this proposition be true,
the conclusion was correct, and the instruction
should have been given by the court.

Where a plaintiff is allowed to recover only
" actual damafi:es," he is bound to furnish evi-
dence by which the Jury may assess them. If
he rest his case, after merely proving an in-
fringement of his patent, he may be entitled
to nominal damages, but no more. He cannot
call on a Jury, to guess out his case without evi-
dence. Actual damages must be calculated, not
imagined,and an arithmetical calculation cannot
be noAde without certain data on which to make it .

The invention in this case was notone which
enabled the patentee to make a profit by a
monopoly of its use. Nor was it a separator
and distinct machine, bv the sale of which he
could make a profit. The patent Is for an im-
provement in the apparatus of the common
fire engine, by which the hydrostatic pressure
of the water from the hydrant nuiy be combined
with the hydraulic pressure of the engine, and
thus add to its power and efl^ciency. There
was evidence tending to show the invention to
valuable, and that it could be applied to the
engines in use at an expense or $25, thereby
ereatly increasing the power of the madiine.
U was proved that the City had applied this
invention to fifty engines, but no information
whatever of the price or value of a sinele li-
cense is given in the bill; fifty is the coefficient
bv which an unknown numfcfer is to be multi-
plied, and without further data the result is
still an unknown quantity. If there had been
any proof ihat the selling price of a single li-
cense for a single engine was $400, the Jurv
would have had something to support their
verdict for $20,000.

In the case of Seymour v. MeChrmiek, 16
How., 485, it was decided by this court, that
where the profit of the patentee is derived neither
from an exclusive use of the thinff patented,
nor from a monopoly of making it for others to
use, the actual damage which he suffers by the
use of his improvement without his license, is
the price of it, with interest, and no more. It
is to his advantage that everyone should use
his invention, provided he pays for a license.
The only damage to the patentee is the non-
payment of that sum when the infringer com-
mences the use of the invention.

As the plaintiffs in this case did n^t furnish
any evidence upon which to found a calcula-
tion of actual damages, the court should have
instructed the lury as requested bv the counsel.
Instead of it, the court instructed the Jury aa
follows:

**Ifthe invention is valuable; if by its use
the power and efficiency of the fire engines be-
longing to the defendant are so increased, that
fifty engines used with this improvement are
equal in practical effect to seventy-five, or any

516

491-495

8UFRBME Ck>UBT OP THS [JnITKD tiTATSB.

Dbc. Tcbv.

Other number of engines, used wittiout this im-
provement, the Jury . &re at liberty to infer, if
they thinlc the mference a Just one, that the
defendant, in its corporate capacity, has saved
the cost of the purchase and operation of the
additional number of engines which would
have been required to proouce the same results
if this invention had not been used ; and that
the corporate authorities, if they had admitted
the plaintiffs rishts, would have paid the
amount of this adoitional cost, or a large portion
of it, as the consideration for a license to use
this invention, rather than to abandon its use;
and that the plaintiffs have therefore lost by
the infringement what the defendant would
have so paid to secure such license. It is for
this reason that the benefits received by the de-
fendant in its corporate capacity, from the use
of the invention, in the consequent reduction
of its expenditures for fire engines, and their
management and operation, are pi^per subjects
for consideration in determining the plaintiff's
damages', and the jury must determine for
themselves, upon the considerations of this and
the other facts of the case (if they find that the
plaintiffs are entitled to recover), what dama^
have been actually sustained by the plaintiffs
in consequence of the unauthorized and wrong-
ful acts of the defendant, being careful only to
give the actual damages proved, and not to
speculate upon the possibility or even proba-
bility of damages beyond such as are proved to
have been susUiined by the plaintiffs.

It was of little use to caution the Jury from
giving speculative or any other than *' actual
aamages," after the large margin of inference
and presumption which they were permitted to
talce in order to find data by which to calculate
them.

It was said, in the case to which we have re-
ferred, '* actual damages should be actually
proved, and cannot be assumed as a legal in-
ference from facts '* which afford no data by
which they can be calculated.

in order to find out the plaintiffs' loss or
damage, the Jury were allowed by the court to
infer that the defendants have saved all the
money indicated by the comparative powers of
the engines with and without the improve-
ment; and after having made this inference,
they nuty presume that the defendants would
have paid this amount to the plaintiff for the
use of his improvement.

Thus the possible advantage or gain made by
the use of plaintiff's improvement on their ma-
chines, is made the measure of his loss. If the
plaintiffs, unable to furnish any other data for
a calculation, had proved that the defendants
liad made a certain amount of money by putting
out the fires in New York, which the plaintiffs
would otherwise have made by use of their
invention, he might with some reason contend
that this was a proper measure.

But if he fails to furnish any evidence of the
proper data for a calculation of his damage,
he should not expect that a Jury should work
out a result for him by inferences or presump-
tions founded on such subtile theories.

We therefcfre direct the eaae to be remanded for
a venire facias de novo.

Cited— 105 U.S.
6: I PUppin,«i6.

5t«

1B7 ; 14 Nott A H., 484 : 19 Blatobf.,

GEORGE B. MORE WOOD, JOHN R. MORE-
WOOD. AND FREDERICK R. ROUTH.
Appte. . ^

LORENZO N. ENEQUI8T, Owner of the

Brig Gothland.

(See 8. a, S How., 40i-48S.)

Charter-pa/rUee and eontraett of aJfMffhtm&nt
are maritime eontracte, eoffnizMe in adminU-
t^ — eonflieting testimony.

New Jersey Steamboat Company v. The Mer-
ohants* Bank of Boston, S How., 884^ aillrmed.

Charter-parties and oontraots of affreightment
are maritime contracts, within the true meaning
and construction of the Constitution and Act of
Congress, and ooflrnizable in courts of admiralty
by prooeAS either in rem or in permmam.

People's Ferry Co. v. Beers, 80 How., 401, oonsid-
er(>d. I

This court will not reverM a decree of thedronlt
court, merely upon a doubt created bKoonfllotlnr
testimony.

Submitted Mar, IS, 1860. Decided Apr, 9, 1860.

APPEA.L from the Circuit Court of the Unit
ed Sutes for the Southern District of New
York.

The libel in this case was filed in the District
Court of the United States for the Southera
District of New YorlL, by the appellee, against
the appellants, in personam, to recover freight
stipulated for in a charter-party.

The district court entered a decree in favor
of the libelant. This decree having been af-
firmed, on appeal, by the circuit court, the de-
fendants took an appeal to this court.

A further statement of the case appears in the
opinion of the court.

Meeere. Robert Dod^e and R. JohnaoB,
for appellants.

Mr. Charles Donohae* for appellee.

Counsel filed five briefs, in which the evi
dence in the case and the question of jurisdic-
tion were exhaustively discussed. But as the
question of admiralty Jurisdiction in personam
must be considered as havine been conclusivelj
settled, the argument is not nere given.

Mr. Justiee Grier delivered the opinion of
the court:

The ship Gothland, owned by Enequist, the
libelant, was cliartered by Burt, Myrtle & Co..
of Batavia, to proceed to Padung, ontke Island
of Sumatra, there to receive a quantity of oof-
fee; to return thence to Batavia and complete
her cargo, and deliver the same in New York.
freight to be paid by the assignees of the bills
of ladins: on oelivery of the cargo. The libel-
ant's suit is in personam against the consignees
or assignees of the cargo, for the amount of
freight stipulated in the charter-party.

The only defense alleged in the answer is.
that a portion of the mercnandise delivered was
not in good order, and had been greatly dam-
aged b^ sweating, caused by want of proper
ventilation on the vovage.

This defense was fully discussed and examined
both in the district and circuit court, and a de-
cree was entered for the libelant in both.

In the argument in this court, the counsel.

NOTB.— 2V) what viaus the jurisdiDtion nfadmi'
raJUy is ctmfined. See note to Alien v. Newberty,
62 U. S., supra.

«4 U.S.

1859.

Akbov y. Blits RmoB R. R. Co.

l,a

without abandoning the ori j^nal defense, have
expended much learning and ingenuity in an
attempt to demonstrate that a court of admiral-
ty in this country, like those of England, has
no Jurisdiction over contracts of charter-party
or affreightment. They do not seem to deny
that these are maritime contracts, according to
any correct definition of the terms, but rather
require us to abandon our whole course of de-
ciMon on this subject, and return to the fluctu-
ating decisions of jBnglish common law Judges,
which, it has been truly said, '*are founded on
no uniform principle, and exhibit illiberal jeal-
ousy and narrow prejudice."

The errors of those decisions have mostly
been corrected by legislation in the country of
their origin; they have never been adoptd in
thi^.

We do not feel disposed to be again drawn
into the discussion of the arguments which
oounsel have reproduced on this subject. The
case of The New Jersey Steamboat Company v.
Ths Merehanti^ Bank of Boston, 6 How., 844,
was twice argued (in 1847 and 1848) at very
great length. The whole subject was most
thoroughly investigated, both by counsel and
the court. Everything connected with the his-
tory of courts of admiralty, from the reign of
Richard II. to the present day—everything
which the industry, learning and research of
most able counsel could discover, was brought
to our notice. We then decided that charter-
parties and contracts of affreightment are * 'mar-
itime contracts " within the true meanhag and
construction of the Ck>nstitution and Act of
Congress and cognizable in courts of admiralty
by process either in rem or in personam.

Lord Tenterden admits that, by the maritime
law, "the ship is bound to the merchandise and
the merchandise to the ship; and it is a neces-
sary consequence that the contract is as much
a maritime contract as a bottomry or responden-
tia bond, or mariners* wages." See Abbott on
Shipping. But in England they cannot have
the benefit of this lien or privilege, because
courts of common law cannot enforce a lien in
rem, and will not permit the court of admiralty
to do it Our district courts had exercised this
jurisdiction without question till the case just
mentioned came before this court. Since that
time no objection has been raised in this court
to the Jurisdiction of courts of admiralty over
contracts of affreightment. Qee Biehy. Lambert,
12 How., 847, &c., Ac.

The numerous briefs of argument filed in this
case contain nothing which was not brought to
our notice in the former discussions of this sub-
ject, except some remarks on the case of Ths
People*s Ferry Po. v. Beers, 20 How., 401. It
has been contended that this case has established
the doctrine, that the jurisdiction of our courts
of admiralty under the Constitution should be
restrained to that which they were permitted
to exercise in the colonies before the Revolution.
The court decided in that case that a contract
to build a ship is not a maritime contract; and
though, in countries governed by the civil law,
courts of admiralty may have taken jurisdiction
of such contracts, yet that in this country they
are purely local, and ffoveroed by state laws,
and should be enforcea b^ their own tribunals.
As a cumulate argument, it was stated that the

Act of Congress of 1789 was not intended to

See 28 How.

conflict with the righta of the state tribunals to
enforce contracts governed by their own laws,
and not strictly of a maritime nature ; that such
contracts were thus considered at the time the
Constitution was formed, and had never been
previously cognizable in courts of admiralty as
within the category of maritime contracts; and
that the contest of jurisdiction in that case
*' was not so much between rival tribunals as
between distinct sovereignties claiming to exer-
cise power over contracts, property and per-
sonal franchises." The arguments used in stat-
ing the opinion of the court must be referred to
the subiect before it, and construed in connec-
tion with the question to be decided. They
had no reference whatever to any former de-
cisions of this court on the question now (it is
hoped for the last time) mooted before us.

There is much testimony in the record of this
case, on the issue made by the answer, with the
usual discrepancy and contradiction in matters
of opinion. The question whether the cargo
was injured through the negligence and fault
of the master, or whether the damage to it was
caused by the innate vice of the cargo and its
necessary exposure on the voyage, was a very
complex one, dependinj^ wholly on the opinion
of experts. Where witnesses of proper skill
and experience have formed their judgment
from a personal examination of the subject of
the controversy, their opinions are generally
more worthy of confidence than those elicited
by hypothetical questions, which may or may
not state lUl the accidents and circumstances
necessaiT to form a correct conclusion.

The decision of this case by the district and
circuit courts is supported by the testimony of
numerous witnesses, who had both the capacity
and experience to Jud^e, and had examined the
subject of the controversy. We see no reason
to dispute the correctness of their judgment, or
to enter into a particular examination of the
conflicting testimony in order to vindicate the
correctness of our own. We have frequently
said that appellants should not expect this court
to reverse a decree of the circuit court merely
upon a doubt created by conflicting testimony.

The judgment of the circuit court is affirmed,
wWi costs.

Ctted-ll Wall., 28;21 Wall., 66d. 562; 1 Bias., 386; 1
Brown, 216, 228 ; 2 Cliff., 88 ; 6 Hughes, 261.

ANSON, BANGS & CO., Compts, and Apph.,

THE BLUE RIDGE RAILROAD COM-

PANY.

(See 8. C, 28 How., 1,2.)

Motion to dmniss for want of bond — time given

to fie bond.

Upon a motion to dismiss the appeal, upon the
grounds that no appeal tx>nd was given at the time
of granting the appeal, either as a security lor
costs or BuperMdeoH of execution, the court gave
appellant sizty days to give theboad.and nle it
with the clerk, upon oomplTing with which order,
the motion to be dismissed ; otherwise, granted.

517

140-167

BUPKJEMS COUBT OF THB UnTTBD STATBB.

Dbc Tbhu.

ArgMfid Mar. 23, 1860, Bedded Apr, 16, 1860.

A PPE AL from the Circuit Court of the Unit-
ijL ed States for the Northern District of
Georgia.

The case is stated by the court.

On motion to dismiss.

Mesen, Reverdy Johnson* B. Toombs
and T, B. B. Cobb« for appellants.

Mr, P. Phillips* for appellee.

Mr. Juatiee Nelson delivered the opinion
of the court:

This is a motion to dismiss the appeal, on
the part of the appellee, upon the ground that
no appeal bond was given at the time of grant-
ing the appeal, as required by the statute, either
as a security for costs, or euperaedeas of exe-
cution. 1 Stat, at L., pp. 84, 85, sees. 22, 28,
p. 404.

It is admitted that no bond was given, but
the counsel resisting the motion proposes to
give one for the costs, and thus prevent the dis-
missal, if consistent with the practice of the
court The practice has been alowed in several
cases, as will be seen by reference to 10 Wheat. ,
811; 16 How., 148, and 9 Wheat.. 555. In the
last case, time was granted within which to
ffive the bond, or the ease be dismissed. The
bond may be taken and approved before any
judge or justice authorized to allow the appeal
or writ of error.

Let the cbppellant luvoe nxty days to give the
band, and file U with the clerk, up<m complying
with Uihieh order the motion he diemisaed; othtr-
wiee, granted.

Cited— 9 Bias., 489.

SIMEON BENJAMIN. Plff. in Eh'.,

«.

OLIVER B. HILLARD and MOSES C.

MORDECAl.

(See 8. C. 28 How., 140-167.)

Metent of obligation of tturety — when surety die-
charged by cftange of contract with principal —
when not— settlement, effect of— damages, meas-
ure of— question for jury — notice to defendant.

The general rule is, to attribute to the obllgratlon
of a surety the same extent as that of the princi-
pal.

If the terms of bis engagement are general and
unrestricted and embrace the entire subject, his
liability will be measured by that of the principal,
and embrace the same accessories and cooao-
quenoes.

The mere prolongation of the term of payment
of the principal debtor, or of the time for the per-
formance of ois duty, will not discharge a surety
or guarantor.

"niere must be another contract sutMtituted for
the original contract, or some alteration in a point
so material as in effect to make a new contract,
without the surety's consent, to produce that result.

But when the essential features of the contract
and its objects are preserved, and the parties, with-
out objection from the surety and without any
legal constraint on themselves, mutually acoommo-
dute each other, so as better t«> arrive at their end,
there is no ground for the surety to complain.

Where a settlement between the parties did not
embrace the subject to which the warranty ap-
plied, nor contain any release or extinguishment
of the covenants concerning it, the guarantor can-
not plead it in bar.

51ft

All questions of damages are, strictly speaking,
for the jury ; but there are certain established
rules, according to which they ought to find.

The amount that would have been received, if
the contract had been kept, is the measare of dam-
ages.

Introduction of the notice to the defendant, of
the defects in the work, was proper.

Argued Mar. tl, 1860. Decided Apr. 16, 1860

IN ERROR to the Circuit Court of the United
States for the Southern District of New
York.

This was an action on the case brought in
the court below, by the defendants in error,
against the plaintiff in error, as guarantor of
the performance of a certain contract, to re-
cover damages resulting from an alleged fail-
ure to perform said contract.

The trial in the court below resulted in a ver-
dict and judgment in favor of the plaintiffs,
for $6,000 and $1,869.15 costs; whereupon the
defendant su^ out this writ of error.

A further statement of the case appears in
the opinion of the court.

Messrs. Charles T>'<M»r cuid WilUam
Curtis NoyeSf for plaintiffs in error:

1 The court erred in the construction of the
defendant's agreement.

It was the contract of a surety which is to be
taken strictissimi juris, and is not to be enlarged
by a liberal or loose interpretation.

Leggett v. Humphreys, 62 U. S.(21 How.), 66-
76; Miller v. Stewart, 9 Wheat., 681, 708:
Wright v. Johnson, 8 Wend.. 512, 616,

The motive and design of the writing was,
to protect the plaintiffs against the loss of the
monev they were to advance. It, therefore, guar-
antied a performance of the contract by the
deliveiT of the articles, and that if they were
not delivered, the money should be refunded
with interest.

There is nothing in the surety's agreement
which binds him to answer for the breach of
any warranty which the principals have con-
tracted to make. The sealed agreement binds
the manufacturers to warrant'the engine capa-
ble of driving six run of stones, but the guar-
anty has no connection with such a prospect
ive warranty. The surety's obligation must be
and is definite; he is liable at once or never;
the articles are delivered or they are not; if de-
livered, he is clear; if not delivered, he is at
once liable to refund the money advanced, but
nothing else.

The essential idea of having money refunded
in gross, apparent on the face of the paper,
shows that it was a total non performance alone
which would charge the surety, and the men-
tion of that sum necessarily excludes all other
liability.

The surety cannot be supposed to have in
tended to assume an indefinite liabilitv for ulti-
mate defects in articles accepted and used by
the plaintiff, and as to which the defendant
was wholly ignorant

2. The unoertaking of the defendant was sat-
isfied by the performance of Hopkins & Leach'^
contract.

The receipt which went forth from the
plaintiffs was iustly relied upon by the deft^id-
ant, as a full discharge of the contract; and be
acted upon it in relinquishing valuable securi-
ties which he held for his indemnity. The

64 r.s.

1859.

BbNJAMIM y. HiLLABD.

14&-I67

plaintiffs are, therefore, estopped from denying
the performance so evident bv their receipt.
Broom Com. L., 841, 842, 91 L. L. O. ^
The plaintiffs treated this settlement with
Hopkins & Leach as a determination of the
suretyship. Thus, on Dec. 27, 1848, being nine
days after the settlement, they gave notice to
Hopkins & Leach of the failure of the engine.
But they never gave any notice to the defend-
ant till the last of May, 1849.

3. The defendant's obligations as surety were
discharged by the acts and agreements of the
plaintiffs and Hopkins & Leacn.

The new agreement, to which the defendant
was not a party, gave till the third rise of
water in October to complete the delivery.
Such new agreement was made u];)on a good
consideration, and was valid and binding. It
made a permanent and material change in the
contract.

Whether the change was for the benefit of
the one party or the other, or both, it was, in
either case, a change of the contract and dis-
charged the surety.

Miller Y. 8teu>art, 9 Wheat..681. 703; Burge;
Surety, 203-206; Pit. Pr. & Sur., 208; Theob.
Pr. & Sur., 154; Par. Merc. L.. 67; Brigham
V. WerUvforth, 11 Gush., 123; Diekerson v.
Gommis»ioner», 6 Ind., 128; HurU v. SmUh, 17
Wend.. 179. 180; Walrath v. Thompson, 6
Hill, 540; 2 N. Y., 186; McWUUafM v. Mason,
6 Duer., 276; Bangi v. Strong, 7 Hill, 250;
iSamuelY. Hovoarih, 8 Mer.. 272. .

The fact that the time of performance origi-
nally contracted for had already arrived, and
Hopkins & Leach might be deemed in default
of performance, makes no difference in the ap-
plication of the rule. Plaintiffs chose to waive
the default and make a new contract. If the
plaintiffs had insisted on the default, then
Hopkins & Leach would have kept the engine
and the defendant would have been liable only
for the advances previously made, being then
only about $4,000, and he would Lave been
more secure of indemnity by reason of the en-

S'ne, so far as built, being still the property of
opkins & Leach.

It is material to the risk or safety of the sure-
ty, that the advances be made as specified in
the contract to which he is surety.

An advance made before the time it should
be made or after it, or in a different kind of
medium, is equally a departure from the con-
ditions of the suretyship.

Theob. Pr. & Sur., 154, sec. 188; Bacon v.
Chssney, 1 Stark., 192; Simmons v. Keating, 2
Stark., 426: Law J. N. S. Ch., 260; Jur., 88;
4 Beav.. 879; 10 Law J. N. S. Ch . 895; 5
Jur., 164; Bonser v. Oox, 6 Beav., 110-118;
Walrath v. Thompson, 2 N.Y.. 185; S. C, 6
Hill, ^40iF. d M. Bank of Michigan v. Evans,
4 Barb., 487; Calvert v. London Dock Co., 2
Keen.638; 7 Law J.. N. S. Ch., 90; 2 Jur., 62;
Burge, Surety, 117, 118; Wright v. Johnson,
8 Wend., 512; Bunt v. Smith, 17 Wend., 179;
Fell, Guar., 206, etseg., 2d Am. ed. «

4. The court erred in refusing to charge the
jury, as requested bv the defendant's counsel,
m relation to the rule of damages.

The engine, boilers and appurtenances thereof
had a definite price fixed by the contract, viz. :
$3, 150. The parties had set this as the value of
such articles, properly made and fully answer-
See 23 How.

ing to the terms of the contract. In any assess-
ment of damages for failure to deliver such ar-
ticles, that price must be taken as the test of
value.

Whatever rule of damages might be applied,
this element of the price of an engine of the spe-
cific dimensions and sufficient to drive six run of
stones, was an essential consideration, and the
instruction asked for should have been granted.

Gary v. Qruman, 4 Hill, 625.

5. The court erred in admitting the paper
called a survey.

This paper was an unsworn statement, made
ex parte, and contained allegations of particular
facts, and also expressions of opinions of the
persons signing it.

Messrs. G. G. and li. W. Ch>ddard« for de-
fendants in error:

First. The first exception in the case was as
to the admission of this survey:

It was competent evidence to show that notice
and information were sent to defendant; and in
this light only was it put in evidence.

It Ming proper evidence for one purpose, and
the exception being general to its entire exclu-
sion, it is not well ti&en.

Gimden v. Doremus, 3 How., 515.

It was, however, admissible for all purposes,
as the defendant had alreadv introduced evi-
dence as to its contents, as had the plaintiff also,
without objection.

Second. The next exception is to the refusal
to nonsuit. This cannot be done against the
will of the plaintiff.

Elmore v. Orymes, 1 Pet., 469; DeWolfY.
Babaud, 1 Pet., 476; Cram v. Morris* Lessee,
6 Pet., 598.

Third. The remaining exceptions are to the
charge.

The construction given \» the guaranty is
correct.

The last clause of the contract with Hopkins
& Leach is. that they would give security for
the money and for the fulfillment of this con-
tract. And then, on the same paper, follows
the guaranty, by which the defendant guaran-
ties the performance of the within contract on
the part of Hopkins & Leach ; and also agrees to
refund the money paid on it, if not performed.

The charge of the court on the alleged en-
largement of the time for completing the con-
tract, was correct

Such an acquiescence in delay on the part of
Hopkins & Leach as was testified to, would
not, as matter of law, discharge the defendant;
but a material alteration of the contract by the
parties would discharge him.

The time for the putting up the engine, etc.,
was not fixed by the contract. They were to
be put up " when the foundations are finished
and ready for the reception of the machinery J'
of which Hopkins & Leach were to have ten
days' notice. There was no change in this.

An agreement with the principal for delay
does not dischai^ge the surety, unless it is one
which the principal can enforce; one which is
valid in law, and made on sufficient considera-
tion.

MeLemore v. P&teell, 12 Wheat., 554;riZM v.
Jones, 10 Paige, 79.

The contract was under seal, and could not
be varied by parol so as to be obligatory on the
parties to it.

619

149-16T

SUPRBXB GOUBT OF THS UKTCBO BtATBS.

Die. TB3M^

Da/tey v. Pr&ndergau, 5 Bam & Aid.. 187;
OaJm V. Niemoeunex Bhin., 11 Webd., 313.

The account and statement was no discharge
of Hopkins & Leach on their contract.

The engine had not been tried in connection
with the mill ; and of course it could not be deter-
mined whether it would drive the mill, with six
or any run of stones, and whether that part of
the contract had been performed.

If the defendant's* guaranty of the "per-
formance of the contract" extended to the
quantity and sufficiency of the work when done,
then be had no right to assume, if he did,
that his liability thereon ceased when the last
payment was made to Hopkins & Leach ; for
that payment mif^ht, and in fact did, become
due before the mill was complete and before
the engine could be tried.

There was nothing in the memorandum of
settlement to mislead him.

Whether the contract was performed or ful-
filled in the sense of the contract and as guar-
antied, could only be ascertained at Wukes-
barre. And the defendant was bound to ascer-
tain, before he could act on such assumption
to the prejudice of the plaintilKi.

The guaranty was co-extensive with the ob
ligations of the contract.

Non-performance by Hopkins & Leach was
what the guaranty looked to— was what it was
required for, and what it was given to provide
for. By the contract, the plaintiffs were en-
titled to security for the money and for the ful-
fillment of the contract.

The guaranty, to meet this, follows its terms,
and secures the performance, and the return of
the money if not performed.

What amount of money or what damages the
plaintiffs were entitled to recover, depended on
the evidence as to non-performance; which was
fairly submitted to the jury under instructions,
which were not excepted to.

In respect to the amount of recovery or the
rule of damages, the court charged that if the
jury found the engines, etc., were insufficient
to drive six run of stones, the damages should
be such sum as would supply the denciencv.

The cause was tried in 1856. The plaintiffs
were then out of pocket in money paid to Hop-
kins & Leach, over $8,000. including interest,
with little or no benefit from it. Besides which,
they had "expended large sums of money to
put the engines, etc., in a condition to run,"
and then the engine would not do the work re-
quired by the contract.

Mr. Justice Campbell delivered the opinion
of the court:

In September, 1847. Hillard & Mordecai em-
ployed the firm of Hopkins A Leach to make
at Elmira, in New York, and deliver to them
at Wilkesbarre, Pennsylvania, a steam engine,
and apparatus necessary to put the same in
complete operation, of the best materials and in
the most substantial and workinanlike manner,
according to specifications, and warranted to
be of sufficient capacity and strength to drive
six run of stones, and the gearing and ma-
chinery necessary for fiourine and ffristing pur-
poses. Also, to make and deliver the cast iron,
wrought iron, steel and composition work for
driving six run of stones, and the machinery
attached, of the best materials and workman-

•80

ship. These they were to erect and put up oa
a foundation prepared by Hillard & MorQecai.
who were to afford the proper aid for that pur-
purpose. The machinery was to be completed
and delivered at Wilkeslmrre upon the first safe
and navigable rise in the water of the river
(Chemung) in the ensuing spring; and Hopkins
& Leach were to give a responsible individual
for security for the money r«id on tJie contract,
and for its fulfillment, Hillard & Mordecai
agreed to pay $2,000 the 1st of December,
1»47; $2,000 the first of February, 1848; and
the remainder upon the completion of the work,
for which payments they were to be allowed '
interest. Before the first payment, the defend-
ant subscribed an agreement, indorsed on the
contract, as follows: *'For value received, I
hereby guarantee the performance of the within
contract on the part of Hopkins A Leach; and
in case of non-performance thereof, to refund
to Messrs. Hillard & Mordecai all sums of money
they may pay or advance thereon, with inter-
est from the time the same is paid." This suit
was brought on this guaranty by Hillard &
Mordecai for the insufficiency of the work done
by Hopkins & Leach. On the trial they adduced
testimony to show that the engine and appa-
ratus set up by Hopkins & Leach were not of
the best material, nor of substantial and work
manlike construction, and had not strength to
drive six run of stones, and in improving tliem
they had sustained expense and loss; that from
the middle .of December, 1847, till December,
1858, the time when the work was finished, they
had advanced $5,500. and that only a trifling bal-
ance existed at that date, which was paid tefore
the work had been tested by use : that afterwards,
and in that month, defects were discovered, of
which Hopkins & Leach had notice. In con-
sequence of which, they made efforts to improve
their work; but in June, 1849, the plaintiffs pro-
cured an examination to be made by three ma-
chinists and engineers, whose report upon the
imperfection of the machinery was communi-
cated to Hopkins & Leach and to the defend-
ant, and who were required to amend their
work. This notice and report were read to the
jury, the defendant excepting to their compe-
tency. The defendant, after the case of the
plaintiff was submitted to the jury, insisted to
the court that his contract was merely a guar-
anty, either of the performance of the agree-
ment by Hopkins & Leach b^ the delivery of
the machinery, or the refunding of the moneys
that might be paid before that event; and that
the advances of the plaintiffs, being in drafts
or notes, and not within the time limited far
the contract, the defendant was not liable at all.
or if liable, only to the extent of the payment
of $4,000, until they had fully pNerformed their
contract; and the plaintiffs having fully paid
off Hopkins & Leach, and receipts oeing given,
the deiendant had a right to consider lus gnar-
anty as at an end.

The court overruled a motion to nonsuit the
plaintiff, And instructed the jury that the de-
fendant was responsible on his contract, not
only for the non-payment of the money ad-
vanced to Hopkins & Leach in case they failed
to make and deliver the engine and machinerr.
but also for the full and faithful performance
of all of the agreement of Hopkins & Leach.
The general rule is, to attribute to the obliga-

64 U.K.

1869.

BbNJAMIK ▼. HiLLARD.

149-16T

tion ef a surety the same extent as that of the
principal. Unless from the terms of the con-
tract an intention appears to reduce his liability
wiU&in more narrow bounds a restriction will
not be imposed by construction contrary to the
nature of the engagement. If the terms, of bis
^ga^ment are general and unrestricted, and
enuirace the entire subject {atnnem eatudm), his
liaflility will be measured by that of the prin-
cipal . and embrace the same accessories and
consequences {eannexarjim et dependenUum.) It
will be presumed that he had in view the guar-
anty of the obligations his principal had as-
sumed. Poth. on Ob., 404; 8 M. & S., 503;
Boyd ▼. MoyU. 2 C. B.,.644.

In the case before us, the contract of the sure-
ty is not in the alternative, but consists of two
terms: one, that the principals shall perform
their engagement, not merely bv their delivery
of somelnachlneiy, but of such machinery as
the contract includes; the other, that if there
be a non-performance, whether excusable or
not, the money advanced on the contract shall
be secured to the plaintifFs to the extent for
which their principals are liable.

The defendant, to sustain his defense that
the plaintiffs had varied their agreement with
Hopkins & Lrach, adduced testimony to the
effect that the latter had informed them of
their inability to complete the work '*by the
first safe and navigable rise in the river, ''^ and
that they assented to the delay proposed by
them till another rise; that a portion of the
work was sent in April, and a portion in June,
and a portion in October, and that the plaint-
iffs were not ready to receive it until October,
and it was not erected until December, 1848, at
which time a settlement took place, and the
plaintiffs paid the small balance then due.

The circuit court instructed Uie Jury that the
waiver by the plaintiffs of the punctual delivery
of the enjdne and machinery did not constitute
such a change in the contract as to discharge
the guarantor. That a mutuiU alteration of
the contract by the principal parties would op-
erate to discharge the defendant as a guarantor;
but an acquiescence on the part of the plaint-
iffs in a longer time than was specified in the
contract for fulfillment, especially as the time
of fulfillment was somewhat indefinite, would
not, as matter of law, operate to discharge the
defendant; and the court declined to charge
the Jury ' 'that if they believed that the perform-
ance or the contract was essentially altered or
varied, or the time of the delivery of the
macliinery at Wilkesbarre extended upon good
consideration, without the knowledge or con-
sent of the defendant, the pldntiffs were not
entitled to recover."

The agreement of Hopkins & Leach com-
prised the manufacture of complicated machin-
ery of distinct parts and different degrees of
importance, ana these were to be transported
to a distance, there to be set up in connection
with other works about which other persons
were employed. That such a contract should
not be fulfilled to the letter by either party is
not a matter of surprise. The convenants are
independent; and there is nothing that indicates
that a failure on either part to perform one of
these covenants would authorize its dissolution,
or that the breach could not be compensated in
diunages.

See 28 How.

The evidence does not allow us to conclude
that there was any intention to change the
object or the means essential to attain the
object of the original agreement. In its exe-
cution, there were departures from its stipu-
lations; but these seem to have been made on
^oundis of mutual convenience, and did not
increase the risk to the surety. He was fully
indemnified by his principals until after the
settlement between the plaintiffs and Hopkins
& Leach.

It is clear that the mere prolongation of the
term of payment of the principal debtor, or of
the time of the performance of his duty, will
not discharge a surety or guarantor. There
must be another contract substituted for the
original contract, or some alteration in a point
so material as.in effect, to make a new contract,
without the surety's consent to produce that re-
sult. But when the essential features of the
contract and its objects are preserved,^ and the
parties, without objection from the surety, and
without any legal constraint on themselves,
mutually accommodate each other, so as better
to arrive at their end, we can find no ground
for the surety to complain. The circuit court
presented the question fairly to the Jury, and
the exceptions to the charge cannot tie sup-
ported. Trop. de Caution, 575; Baubien v.
Stoney, Speer. Ch., (8. C.,)608; 11 Wend., 812.

The defendant adduced testimony to show
that the plaintiffs accepted the engine and
machinery; Uiat an account was statea between
the plaintiffs and Hopkins & Leach of the work
done and money paid, and an acknowledgment
of its settlement entered upon it, and signed by
the parties; that Hopkins & Leach exhibited
this account to the defendant, and demanded a
return of the securities they had deposited with
him for his indemnity, and that they were
yielded on the credit given to that acknowledg-
ment He requested the court to instruct the
Jury, that if they believed that the defendant,
relying upon the receipt given by the plaintiffs,
settled with Hopkins db Leach,and surrendered
to them securities he held to indemnify him
against the liability he assumed by his guaran-
ty, and such surrender and discharge were made
after the settlement between Hopkins & Leach
and the plaintiffs, and upon the faith of it, the
plaintiffs are bound by such settlement and re-
ceipt, so far as the same relates to the defend-
ant, they having put it in the power of Hop-
kins & Leach to procure the surrender of such
securities for the defendant. This prayer finds
its answer in the agreement of Hopkins &
Leach, and the guaranty of the defendant.

The material of which the machinery was to
be composed, and the workmanship and ca-
pacity of the manufacture, were warranted.
The defects in the machinery were latent, and
could only be ascertained by its use. The set-
tlement between the parties did not embrace the
subject to which the warrant3r applied, nor
contain any release or extinguishment of the
covenants concerning it. The cause of the
present suit is not the same as that included in
the stated account, or acknowledgment entered
upon it.

The present suit originates in the contract
between Hopkins & Leach and the plaintiffs.
The former could not plead that settlement in
htLT of a similar suit a^inst them; and conse-

621

469^76

8C7FRBMB Coni^T OF THB UNmBD BtATBB.

Dbc. Term,

quectly their guarantor cannot. They have
miBConceived the import of that settlement
without the agency of the plaintiffs, and are
not entitled to charge them with the conse-
quent loss.

The circuit court instructed the jury, that if
they found the engine, boilers, and ap^ratus
for steam power, were sufficient to orive six
run of stones suitable for grinding, the damages
to be found should be sucn as would enable the
plaintiffs to supply the deficiency, and that
they were not required to assume the contract
price as the full value of such machinery.

The principle thus laid down coincides with
that in Alder v. KeigKly, 16 M. & W , 117.
*'No doubt/' say the court in that case, "all
questions of damages !ire, strictly speaking, for
the jury; and however clear and plain may be
the rule of law on which the damages are to
be found, the act of finding them is for them.
But there are certain established rules, accord-
ing to which they ought to find; and here is a
clear rule: that the amount that would have
been received, if the contract had been kept, is
the measure of damages if the contract is
broken." This rule was reaffirmed in Uadley
V. Bfixendale, 9 Exch., 841. The exception to
the introduction of the notice to the defendant
and the report accompanying it, cannot be sus-
tained. It was proper for the plaintiffs to no-
tify the principals and their surety of the de-
fects in their work, and to call upon them to
amend it. The report was not introdu9ed as
testimony of the defects, nor can we assume
that it was used for that purpose.

Upon the wliols VBCcrd, our eonchinon is there
w no error^ and the judgment of the drcuU court
u affirmed.

Cfted-15 Otto., 718 , 1 Fllppln, SM.

MARTIN VERY, Plff. in Br.,

GEORGE C. WATKIN8.

(See S. C, 28 How., 40IM76.)

Convereation, between trustee andco-surety of de-
fcTidant, when inadmissible — what errors not
grou nds of reversal — inadmissible paper — what
is a taUd lety --property levied on may be left
in possession of another — wlven property in
trustee's possession may be levied on — surety ex-
onerated when principal is — demand, how made
of receiver.

A coDversation betweon witness and a co-surety
of defendant, defendant not t)eing present at the
oonveraatfon. is inadmissible to ftx upon defendant
as co-surety a separate liability for an alleged
breach of the bond bv their principaL for wbich
they had made themselves mutually responsible.

Assfffnments of error, which are complaints be-
cause the court admitted evidence directly perti-
nent to the issues which had l>een made by the
pleadings, are not grounds of reversal.

A paper in the handwriting of the deceased co-
surety of the defendant was Inadmissible to show
that the testimony of the other witnesses was not
consistent with an appraisement which they had
made, pursuant to an order of the court.

If the officer charged with the duty to make a

Note.— AtoTifs and HahHUies of auretiw. See note
to n. S. V. Giles, 13 U. S. (9 Cranch), 2lit ; and wfte
to P. M. Gen. v. Barly, 16 IT. S. (12 Wlieat.), 186 ; and
note to Hall v. Smith, 46 U. 8. (6 How.), 96.

629

levy has a view of the goods and they are In bto
power, and he declares that he makes a le^y or
seizure of them in execution, it is a valid levy.

It cannot be implied that a levy by a mandial was
Incomplete because he left the property wiMre it
was when the levy was made.

After a levy has been made with a )l. fa. upoo
goods and chattels, the officer may oonilde them to
another person for safe keeping.

An execution is leviable upon the property in the
possession of a trustee of defendant, where It was
allowed by him, voluntarily, to remain.

In an action to make a security liable for an al-
leged breach of his bond, he is entitled to have the
beneflt of any irregularity which his principal
oould have resisted.

Under a decree authorising one to demand prop-
erty of a receiver, the demand should be made on-
der a certified copy of that part of the decree, per-
mitting the demand of the property, and reqairiof
its surrender, with a receipt upon it, either by Sttco
one or his attorney, that the goods were sarrcD-
dered by the receiver.

Such a certificate the court would have directed
to be put on file, as a voucher for the protection of
the receiver from further responsibility to the
parties, and as evidence that its decree had been
executed in that particular.

Submitted Mar. SS, 1860. Decided Apr. 16, I860.

N ERROR to the Circuit Court of the Unit
ed States for the Eastern District of Arkao

sas.

The history of the case and a st&tonent of
the facts appear in the opinion of the court.

Mr. J. StIllwelL for plaintiff in error.

Messrs. A. Pike and Geo. G. WartldBS,
in person, for defendant in error.

Mr. Justice Wayne delivered the opinion of
the court:

On the 8d of March, 1841, at Little Rock.
ArkansQS, one James Levy gave his ohligation
with a mortgage for $4,000. with inlereat, due
six years after date, to one Darwin Liadsley.
who soon after assigned the obligation to Mar
tin Very, the plaintiff in error. In March. 1843.
Levy paid to Very $2,000, and at the same time
executed a promise, in writing, to pay the
residue of the debt in jewelry and other wares,
which Very agreed to receive in payment, to
be selected within a year from that time, from
Levy's stock of goods. Very refused to per-
form the agreement, and in 1848 brought an
action on the original obligation, to which
Levy pleaded the agreement by way of accord
and satisfaction, with an offer to perform on bis
part. The Supreme Court of Arkansas, on an
appeal, held it to be, in equity, a clear accord
and satisfaction, u|x>n a good consideration, be-
cause the creditor by that arrangement received
payment of nearly half of the oebt in advance,
and because the residue was to be paid almost
four years before the debt became due. In the
mean time. Very brought a bill to foreclose the
mortgage in the Circuit Court of the United
States for the District of Arkansas, to which
Levy set up the same defense by way of answer.
In April Term, 1850, the court sustained the
defense of Levy, and decided that Very should
select from the stock of goods in question a
sufficient amount, according to their value, oo
the 3d March, 1844, to satisfy the rest of the
debt. It then became necessary to appoint a
receiver in the cause. John M. Ross was ap-
pointed receiver, and gave a bond, with K.
Cummins and Geo. C. Watkins as securities,
in the penal sum of $5,000, with the conditioo
that he would faithfully discharge his duties
as receiver, with respect to such goods as might

64 U.S.

1859.

Vebt v. Watkinb.

461M76

he brought .into court, and that he would care-
fully keep and dispose of them in conformity
with such order and decree as the court might
make in that suit.

In consequence of Very's refusal to abide by
bis agreement. Levy was obliged to keep his
stock of goods on hand to tender them to Very,
according to the agreement. But Levy had
other cr^itors, who seized upon the same goods
in execution, and they were in possession of
the sheriff when Ross was made receiver, and
from the sheriff he received them. The next
step was an order from the district judge, di-
recting Very to select from a box of jewelry in
the hands of the receiver such an amount, ac-
cording to the value of the goods in March,
1843, as would be sufficient to discharge the
balance of the debt due to him. Thin he re-
fused to do, and then the clerk of the Supreme
Court of Arkansas was directed, with the as-
sistance of two skillful and disinterested per-
sons, to make a selection from the goods for
Very.

It was done. A report was made, that the
valu^ of the goods in March, 1844. had been
$5,777, and that according to that value a se-
lection had been made to the amount of $2,-
002.59, to pay Very's claim upon Levy, and
that the goods had been set apart for that pur-
pose, witn an inventory. A final decree was
then made, authorizing Levy to withdraw the
remainder of the gooas from the hands of the
receiver, adjudging also that Very should take
the selected goods m payment of the residue
still due upon the bond and mortgage, and that
Ross, the receiver, should deliver them to him
on demand. Very refused to abide by that de-
cree, and prosecuted an appeal to this court.
Here the decree of the court below was af-
firmed. On its return. Very refused to pay the
costs. Levy had to pay them in order to get a
mandate from this court to carry its deci'ee in-
to execution. Under these circumstances, Levy
sued out a writ of execution, and directed it to
be levied on the goods belonging to Very, still
in the hands of Ross. The receiver and the
marshal returned it without further action on
the writ. A venditioni exponas was then issued,
and the goods were sold by the marshal for
$260, the full value of them at that time, m
their then condition. Three years and six
months passed, and then Very, having ac-
quiesced all of that time in what had been
done, commenced this suit to recover from
Watkins, as the security of Ross, damages for
a breach of his bond, alleging that he had
carelessly kept the jewelry which had been in
his possession as receiver, and for not having
surrendered it to him when he demanded it,
as under the decree of the court he had a right
to do.

Watkins filed three pleas to this action. The
first is a detailed narrative of the proceedings
in the suit between Very and Levy to the ap-
pointment of Ross as receiver, and showing
that, by the decree. Very had been required to
receive, in satisfaction of the debt due to him
by Levy, Jewelry to the amount of $2,002.59;
and that from that decree they had appealed
to the Supreme Court of the United States,
where the decree of the court below had been
aflSrmed with costs. Very v. Lety, 18 How.,
345. And further stating, that Levy had paid

See 98 How.

the costs of the suit in the Supreme Court, and
that the lewelry. still being in the hands of
Ross, had been levied upon and sold by the
marshfd. and that the proceeds of it were ap-
plied to the repayment of Levy of the costs,
which Very was bound to pay by the decree.

Watkins, in his second plea, denied that the
lewelry had been injured from tW careless
keeping of Ross; and his third plea is a denial
that Very had ever demanded it from Ross.

Upon the trial of the case, the plaintiff ex-
cepted to the rulings of the court, as well for
excluding as for admitting testimony.

We have examined with some pains the
plaintiff's assignments of error, without finding
cause for sustaining either of them. The first
is, that the court refused to permit a witness to
testify to a conversation between himself and
Cummins, the co-surety of Watkias, for the
purpose of fixing upon the latter a liability, in
this action, to the plaintiff. It seems that Wat-
kins was not present at that conversation.
Whatever it may have been, it was inadmissible ;
and had Cummins been alive; and had he been
called as a witness to narrate it. he would not
have been a competent witness to fix upon his
co-surety a separate liability for an alleged
breach of the bond by their principal, for which
they had made themselves mutually responsible.
The argument of the counsel for the defend-
ant in error is unanswerable upon this point.

The second, third, fourth, fifth and sixth
assignments of error are complaints because the
court admitted evidence directly pertinent to
the issues which had been made bv the plead-
ing, and defensive as to the imputed negligence
of Koss in keeping the goods committea to him
as receiver, and as to their condition, quality
and value when they were turned over to him
under the order of the court ; and as to their con-
dition when it was levied upon by the marshal
to pay the costs of the Supreme Court.

The seventh assignments of error was the
refusal of the court to admit a paper in the
handwriting of Cummins, the deceased co-
surety of the defendant, to show that the testi-
mony of the other witnesses. Dort and Kirk, was
not consistent with the appraisement which they
had made, pursuant to the order of the court.
It was clearlv inadmissible.

The eighth and ninth assignments of error
relate to the levy upon the jewelry by the
deputy marshal; and the court is asked to in-
struct the jury: " If the levy was made without
seeing the jewelry and taking it into possession,
they should disregard it as any evidence of any
levy; as, in law, a levy upon personal property
— which, jewelry is-— cannot be made without
having a sight of it, and taking possession
thereof."

The court refused the instruction as asked ;
but said to the jury, that to make a valid levy
on goods and chattels on a writ of ^. /a., if the
officer charged with the duty has a view of
them, and they are in his power, and he de-
clares that he makes a levy or seizure of them
in execution, such is a valid levy, without
taking them into his possession.

The objection to this instruction seems to be,
that there had been an insufficient seizure, be-
cause the officer did not take manual possession
of the box containing the jewelry, but left it in
the keeping of Ross, who had pointed it out to

528

401^12

BUFRBIIX COUBT OP THB UhiTBD BtATBB.

Dec. Tsrm,

him when he came to make the levy. But the
eyidence estahlishes that a levy was made by the
officer, and that he returned the execution to
the marshal , for further proceedings upon it.

It cannot be implied that the levy was in-
complete, on account of the box having been
left wheu it was when the levy was made,
where it md been kept by Ross whilst he con-
tinued to be receiver, and where it remained
afterwards, from Very not having demanded it,
as he had a right to do and should have done.

After a levy has been made with a^ fa.
upon goods and chattels, the officer may confide
them to another person for safe keeping, until
there has been a settlement of the judgment and
payment of all costs.

The court, in giving this instruction to the
Jury, went further than it was necessarjr to do.
without, however, having interfered with the
riffht of the Jury to find from the evidence
whether or not a levy had been made.

The tenth assignment of error relates to the
instruction of the court, that by the decree of
the court below in August, IwM), and the af-
firmance of it by this court in 1851, Ross ceased
to act as receiver, and from thenceforth held
the Jewelry in question only as the trustee of
Very. That decree put an end to the con-
troversy, excepting to what remained to be done
under the mandate of the court for the exe-
cution of its decree. It is true that Ross, as re-
ceiver, had not been discharged by a formal
order upon motion when the decree was made;
but it is also true that the jewelry, by the de-
cree, was made the property of Very, and that
he could have demanded it from Ross, and that
he could not justifiably have refused to deliver
it It was the property of Very for all pur-
poses, as any other that he owned, or which
could have been conveyed to him by any kind
of title. It was, as such, liable for his debts.
It seems to have been considered by the counsel
of Very as liable for the costs of appeal in the
Supreme Court, which Very had neglected to
pay. Levy, however, paid them, and obtained
an execution against verv for his reimburse-
ment, which was as well leviable upon this
property, still in the possession of Ross, as upon
any other. It was fu lowed by him voluntarily
to remain where the law had placed it, without
having made any proper demand for it under
the decree. • We do not consider the application
for it by Mr. Fowler, as the attorney of Very, a
proper demand. Mr. Fowler's relation to him
was not that special attorneyship which author-
ized him to demand it in the manner that he did.
No doubt that both Mr. Cummins himself and
Mr. Fowler thought themselves empowered, as
attorneys in the suit, to withdraw it from Ross,
to make a private sale of it for the payment of
the costs due by Very.

But Roes had responsibilities in the matter
under the decree, which gave him the right to
withhold it from the counsel of one of the
parties, until a demand was made upon him, ac-
cording to what the course of equity practice
requires to be done under such decrees. It
matters not what causes he may have assigned
to Mr. Fowler for not delivering the Jewelry to
him. for, in a controversy to make the security
of Roes liable for an allegied breach of his bond,
the former is entitled to nave the benefit of any
irregularity which his principal could have re-

sisted. According to the practice in equity,
under such a decree as this is, authorizing Very
to demand the lewelry, the demand should have
been made under a certified copy of that part of
the decree, at least, permitting very to demand
the property, and requiring Ross to surrender
it, with a receipt upon it, either by Very or by
his attorney, that the goods were surrendered
by Ross. Upon the return of such a certificate,
the court would have directed it to be put on
file with the other papers in the suit, as a
voucher for the protection of Ross from further
responsibility to the parties, and as evidence
that its decree in that particular had been exe-
cuted. Such a course is not merely a form, to
be followed or not, as parties to such a decree
may please, but it is a cautionary requirement.
to prevent further litigation, by exactneas in the
performance of a decree in equity. Had it been
observed in this instance, this suit would not
have been brought.

Ths instruetion as given w t a eonfarmity ttith
the decree. Having examined every {ungnment
of error, we thail direct thejudgmeni of the court
below to be affirmed.

THE ORIENT MUTUAL INSURANCE
COMPANY, Plff. in Br.,

JOHN S. WRIGHT, use of Maxwell.

Wright & Company.

(See 8. Cm 23 How., 401-41S.)

Open policy, what in, and effect of— when eame
atUichee — rules governing same — conetrucHon
of such ajpoliey — when and how premiums to
be settled.

An open or ninninflr policy, enables the merotaant
to insure his iroods sliippeu at a distant port wiieo
it is impossible for him to be advised of toe particu-
lar ship upon which the foods are laden, and there-
fore cannot name it in the policy.

The party insured can injure the oargo **od
board ship or ships," on ooodition of dedarinir the
ship upon the policy and grivlnff notice to the
underwriter as soon as known, ana if poaslble, be-
fore the loss of the ship on board of which the
ffoods have been laden.

The underwriter agrees that the policy shall at-
tach, if the vessel be seaworthy, however low may
be her relative capacity to perform the voyage;
and for the additional risks he may thus incur, be
finds his compensation in an Increase of the pre^
mium.

The ship must be seaworthy, or the policy will
not attach ; but the decrees of seaworthiness are
various ; and the rates of premiums are varied bj
the underwriters accordinfir to the different esti-
mates they form of the character and qualities of
the vessels to which they relate.

The principles of law and rules of constructioo
^veminflT policies of this description stated.

Where the parties aarree, that in respect to ves-
sels ratinv lower than A 2, the premiums on the
risks Bhalfbe fixed at the time thev are declared or
reported ; when thus fixed, and the premium paid
or secured, the policy attaches upon the goods from
the time they are laden on board the vessel.

The mere declaration of the ship, on board of
which the ffoods are laden, is not sufficient to oom-

Elete the contract, as something- more is to be done
y the assured: he must pay or secure the addition-
al premium which the underwriter has reserved
the riffht to fix, at the time of the declaratioa of
the risk.

Note. — /nsurance. Different kinds nf jfoUeks.
Valued policy. See note to Ins. Co. of Ylivlnia v.
Mordecai, 83 u. 3., supra.

1869.

Oribmt Mot. Ims. Co. y. Wkiqht.

401^12

Wbere the veaeel declared or reported by the
sured was rated below A 2» and the oompaQy had
reserved the right to fix at the time the additional
premium, aad uoleas assented to by the assured,
and the premium paid or secured, the contract of
insurance, in resptjct to the particular shipment,
did not become complete or bindlner ; held, that the
premiums were to be settled when the risks were
reported ; not at any other petiod.

Argued Mar, 20, 1860, Decided Apr, iS, 1860.

IN ERROR to the Circuit Court of the United
States for the District of Maryland.

This action was broaght in the Superior
Court of Baltimore City, l>y the defendants in
error, on a certain policy of insurance.

On petition of the plainti£F in error, the cause
was removed into the Circuit Court of the
United States for the District of Maryland.

The trial below resulted in a verdict and
judgment in favor of the plaintiffs for $17,865. 18
with costs; whereupon the defendant sued out
this writ of error.

A further statement of the case appears in
the opinion of the court.

Messrs, A* Hamilton* Jr.. and F. B.
Cttttiii§f, for plaintiff in error:

The contract of insurance contained in the
record is commonly called an open or running
policy, and is issued when the shipments to be
protected thereby, the time of maldng them,
the vessel or vessels carrying them, the ports of
destination, and the value or amount of cargo,
and other circumstances material to the risks to
be borne by the underwriter have no present ex-
istence, or are unknown to either of the parties.

The contract is necessarily incomplete, though
binding upon the underwriter to tl>e extent of
the agreement. It contemplates that if the as-
suredshall desire to av^il himself of his right
to be protected under it, he shall, when the
risks to be insured are known to him, or within
a reasonable time thereafter,make a declaration,
return, or report of them to the underwriter,
with all essential particulars, in order that the
premium to be charged may be estimated by
the insurer, and if agreed, to, may be entered
with the particulars upon the policy which is
" open" to receive them.

1 Phil. Ins.. 26, 8ded: 1 Ihid., 278; 1 Duer
Ins., 77»8ec. 28.

Until the return by the merchant of risks, not
known at the time of making the lu^reement to
insure, no basis exists upon which the consider-
ation or premium for assuming the hazards
could be estimated or named by the underwriter ;
consequently, an open or running contract to
insure separate sams upon unascertained future
succesdye and distinct shipments to be there-
after declared or reported by the merchant, is
an agreement that the underwriter will assume
the risk as to them, at and from the ladinff
thereof, in consideration that the assured will
pay, or agree to pay, such premium as shall be,
m good faith, namied by the insurer, as an ade-
quate compensation for the risks to be assumed
by him.

2. The premium is the price, and is the sole
consideration for which the underwriters agreed
to indemnify the assured against loss. The
rates of premium at which he can afford to take
hazards, is the basis upon which the whole
business of insurance rests. It is vital that the
insurer should have the power to determine his

See 28 How.

rate of charge, leaving it, of course, optional
with the merchants to accept or reject. Hence,
under the agreement contained in the policy in
controversy, as the risk to be insured at the time
when it was effected were not known and did
exist, it was impossible to estimate the pre-
miums to be paia, and therefore an agreement
being necessarily incomplete, various reserva-
tions were made, and amon^t others, the
essential ones, to add an additional premium
upon the cargo to be shipped by vessels rating
lower than A 2, or by foreign vessels. That
the premiums or risks should be fixed at the
time of the indorsement, and such clause to
apply as the Company may insert as the risks
are successively reported.

Mr. Wright had the option to make ship-
ments by vessels of this description, and the
right to claim the benefit of contract by paying,
or agreeing lo pay, the additional premium
which the Company might, in good faith, charge
for the risk.

1 Duer, Ins., 66, sub. 11; 1 Phil. Ins., 2. 8.

8. In such cases, there are as many different
contracts of insurance as there are different sub-
jects to insure, and these contracts are as dis-
tinct as if each was made the subject of a sep-
arate policy.

When the company has, in good faith, esti-
mated and determined the rate of premium
which it deems to be commensurate with the
risk reported to it, and the merchant considers
it too high and refuses to agree to it, the contract,
9S to that shipment, has not become complete.

The merchant has a right to be protected by
the policy, at and from the lading of the car^o,
if he chooses to agree to pay the premium de
manded by the company therefor; but if he
chooses, he may decline to pay it, in which case
as the whole consideration fails, the company
may refuse to enter the risk, or if an entry has
been made, may strike it from their books.

12 La. Ann., 260; 1 Duer, Ins., 77, sec. 28;
Story, Cont., sec. 481.

4. The schooner Mary W. did rate lower
than A 2; consequently, when Mr. Wright
made the declaration or return of the shipment
by her to the Company, it had the right to de-
termine in good faith the additional rate which
in its judgment would be adequate to the char-
acter of the risk that he desired should be in-
sured. The contract makes no provision, in
case the parties cannot a^ree on the premium,
for its adjustment by arbitration or otherwise,
and in such case the law does not undertake to
make a price for them.

6. Mr. Wright did refuse to agree to pay
either of the rates of premium, which the Com-
pany in good faith determined. He denied the
right of the Company to estimate the risk, de-
' nounced the rates named by it as exorbitant,
offered to leave the dispute to arbitrators, and
finally offered to pay, at a less rate, Ac. ; con-
sequently, the contract between the parties, to
insure the cargo of The Mary W., was never
complete.

When Wright refused to pay or to agree to
pay either of the rales of premium demanded,
the Company was free from liability. His re-
fusal went to the entire consideration on which
alone it had engaged to be liable at all.

Messrs, B. 4. Brent and JSL May, for de-
fendants in error:

6»

401-412

Bttfbbmb Coubt of the Unttrd Btatbb.

Dbc. Tkkm.

The principle of coDBtruing an insurance
policy is to be most libera] towards assured.

Smith. Merc. L, l»7; 2 Marsh., 87; 8 Kent,
267; 14 Pet.. 109; 1 Duer. Ins., 161, sec. 5;
P(Mrmer v. I'M. Co., 1 Sumn.

The premium note being given and the amount
agreed to, makes a new contract perfect and
complete by extension on the old terms.

1 Am. Ins. 26. and ^iote ; 1 Phelps, 14. and
notes: 2 H. Bl., 848, Wi, notes; 19 How., 818.

The premium note is conclusive, whether
paid or not.

8 Kent, 260: Bahell v. Mair, 1 Camp.. 682;
Fay V. BeU, 8 Taunt. 496; 9 How., 890.

The policy takes effect from date of premium
note, though policy delivered after.

Ligliihody v. N, A. Inn, Co., 28 Wend., 18.

The adverse argument is most unreasonable,
because it is virtually the claim of a power ex
parte to annul the contract already attached
and in force.

1 Phelps. Ins., 128; BoyaUon v. Turnpike
Oo., 14 Vt., 811; 1 Duer. 162. sees. 7-10.

Intention of parties must be on the whole
contract, even by overruling grammatical con-
struction.

Morey v. Roman, 10 Vt.. 666.

If the risk had once attached, premium note
could not be refused payment or returned.

8 Johns., 1.

The last clause retains one and one half per
cent, on all returned premiums.

The contract was irrevocable the moment the
premium and extension was reported and ap-
proved.

1 Pars. Cont., 406. 407, note, E: Tayloe v.
Merchants' Insurace Co., 9 How.. 890.

The contract is not the less complete because
an increased premium was left op«n for subse-
quent agreement.

This was decided in U. 8, v. WUkins, 6
Wheat.. 185. and not overruled, as supposed,
in 17 Ohio, 1.92.

But here is an express obli^tion to pay an
increased premium, and that is itself as good
as if the increased premium had been paid at
the time — promise for promise is a good con-
sideration.

1 Pars. Cont., 378-876; 19 How., 828.

Now, as to the effect of the indorsement
leaving the premium not fixed at the time, we
insist —

1. That the average premium was fixed in
the very extension of the policy, liable to be in-
creased or abated.

2. The right to fix the rate in the case of The
Orient must be reasonable, and not exercised so
as to annul the contract.

1 Duer, 162, sees. 7-10; 1 Phil. Ins., 128; 14
Vt,, 811.

Mr. Justice Nelson delivered the opinion
of the court:

This is a writ of error to the Circuit Court of
the Unit^ States for the District of Maryland.

The suit was brought by the plaintiff below
upon a policy of insurance covering a quantity
of coffee laqen or to be laden on board the
**good vessel or vessels" from Rio de Janeiro
to anv port in the United States, "to add an
additional premium, if by vessels lower than A
2, or by foreign vessels.

The policy contained the following clause in

respect to premiums: " Having been paid the
consideration for this insurance by the assured,
or his assigns, at and after the rate of one and
one half per cent. , the premiums on risks to be
fixed at the time of indorsement, and such
clauses to apply as the Company may insert, a»
the risks are successively reported." The pol
icy bears date 27th July, 1866. The CompsoT
subscribed at the execution $22,600 as the
amount insured.

On the 30th July, 1866. the policy was al
tered by agreenSent of parties by sinking out
the words, ' * vessels not rating lower than A 2,"
as it originally stood, and inserting the words
now in the instrument, namely: " an addition
al premium, if by vessels lower than A 2, or by
foreign vessels."

On the 4th January, 1866. the Company sub-
scribed an additional sum of $16,000, and od
the 19th April following, the sum of $26,000.

Premium notes were given at the time the
different sums were subscribed, at the rate of
premium mentioned in the body of the policy.

The agent of the Company at Baltimore, who
negotiated this insurance, the defendants bein^
a New York Company, states that when appli
cations are made to enter risks on running pol-
icies, they are indorsed at once by him, and the
report of such indorsement transmitted to the
Company in New York, which names the pre-
mium, and this is communicated to the assured;
that the premiums specified in the body of the
policies are nominal, and the true premiums to
be charged are fixed by increasing or reducing
the nominal premiums when the risks are re-
ported ; and that the nominal premiums taken
on the delivery of a running policy are re-
turned, if no risks are reported.

In the latter part of August, 1866, the p1alD^
iff applied to the agent at Baltimore for an io-
dorsemcnt on -the policy of the coffee in ques-
tion, laden or to be laden on board a vessel
called The Mary W. . from Rio de Janeiro to New
Orleans, which application was communicated
to the Company in order that they might fix the
premium. The Company at first declined to
acknowledge the vessel as coming within the
description in the policy, on account of her al-
leged inferior character and unfitness for the
voyi^; but the plaintiff insisting upon the sea-
worthiness of his vessel, and his right to the in-
surance within the terms of the policy, the Com-
pany fixed the premiimi at ten per cent., sub-
ject to the conditions of the policy, or two and
one half per cent. . as against a total loss. This
rate of premium the plaintiff refused to pav.

The coffee was shipped on The Mary W. at
Rio de Janeiro for New Orleans, on the l2Ui
July. 1866, at which period she started on her
voyage, and was lost on the 29th of the month
upon rocks, the master beine some seventy
miles out of his reckoning at tlie time.

Evidence was givefi on the trial, on the part
of the Company, tending to prove that Tbe
Mary W. was rated below A 2. and even tbst
she was unfit for a sea voyage, being originally
intended, when built, in 1840, as a ooaating ves-
sel, and prayed the court to instruct tbe juir,
that if they find from the evidence the vessel,
at the time of the application for the indorse
ment of her cargo upon the policy, was rated
in the office of Uie Company and other officer
of underwriters in New York lower than A &

«4U.8.

1859.

Oribkt Mut. Inb. Ck>. v. Wbight.

401-^X2

aDd being so rated, the Company offered to
make the indoreement at the premium fixed by
them, and that on the premium being commu-
nicated to the plaintiff, he refused to pay it or
assent thereto, then he is not entitled to recover,
which prayer was refused; and the court there-
upon instructed the iury, substantially, that the
plaintiff was entitlea to recover for the loss, so
far as the rate of premium was concerned, up-
on deducting such additional premium to the
one and one half per cent., as in the opinion of
underwriters may be deemed adequate to the
increased risk of the coffee shipped in a vessel
rating below A 2.

The Jury rendered a verdict for the plaintiff.

The material question presented in the case
is. whether or not the Company were under a
contract, with any of the terms and conditions
of the policy, to insure this particular cargo of
coffee on lioard of the vessel Mary W. at the
rime the loss occurred; for. unless the contract
is found there, none existed between the parties,
as it is admitted none was entered into at the
time the vessel was reported and the risk de-
clared. The plaintiff has assumed the affirma-
tive of this question, and insists that the Com-
pany was bound by the terms of the policy to
cover the coffee from the time it was laden on
board the vessel at Kio as soon as the risk was
declared, and this whether the vessel rated be-
low A 2 or not. This is necessarily the result
of the position claimed, as it denies to the Com-
pany the right tp fix an additional premium,
even if it should happen that the vessel rated
lielow A 2; that then, or in that event, it is
contended, the additional premium becomes a
question of mutual adjustment between the
parties, and if they disagree, to be determined
by the courts. On the part of the Company,
it is insisted that, accordmg to the special pro-
visions in the policy, in case the vessel reported
rateA below A 2, the contract is inchoate and
incomplete until the payment or security by
the assured, of the additional premium to be
fixed at the time by the Company.

Tlie contract of insurance in this case arises
out of an open or running policy, which enables
the merchant to insure his goods shipped at a
distant port when it is impossible for him to be
advised of the particular ship upon which the
^oods are laden and, therefore, cannot name it
m the policy^.

A relaxation in this respect has been permit-
ted by the laws and practice of commercial
countries; and the party effecting the insurance
is allowed to insure the cargo *' on board ship
or ships." on condition of declaring the ship
upon the policy and giving notice to the under-
writer as soon as known, and if possible before
the loss on board of which the goods have been
laden. The underwriter, who consents to in-
sure upon policies of this description, of course,
has no opportunity to inquire into the charac-
ter or condition of the vessel, and agrees that
the policy shall attach, if she be seaworthy,
however low may be her relative capacity to
perform the voyage; and for the additional
risks he ma^^ thus incur, he finds his compen-
sation in an increase of the premium. A higher
premium is always demanded wifere the vessels
to which the insurance relates are not known.

The ship, indeed, must be seaworthy, or the
policy will not attach; but the degrees of sea-
flee 28 How.

worthiness or of the capacity of a ship to per-
form a given voyage are exceedingly various;
and it is well known that the rates of premium
are varied by the underwriters according to the
different estimates they form of the character
and qualities of the vessels to which they relate.

In the case of an insurance of goods shipped
from and to port or ports designated, or on a
voyage particularly specified, the ship to be
afterwards declared, and the rate of premium
to be paid is ascertained, and inserted in the
body of the policy at its execution, the contract
becomes complete, and the policy attaches upon
the goods from the time they are laden on board
the vessel, as soon as the ship is declared or re-
ported, provided the shipment comes within the
description in the policy. But until the decla-
ration is made by the assured, it is inchoate and
incomplete; and, if not made at all, the risk is
regarded as not having commenced, and the as-
sured is entitled to a return of his premium.

The principles of law and rules of con-
struction governing policies of this description
appear to be well settled, as may be seen by a
reference to the authorities collected in the text
writers.

1 Arnold, ch. 7, sec. 2, pp. 174-179, Per-
kins' ed. ; 1 Phillips, ch. 5, sec. 2. pp. 174-
177: 2 Parsons, ch. 1. sec. 2, pp. 84-85, and ch.
6. pp. 198-199; 8 Kent's Ch..p. 256; EfUwisUY.
Eliu, 1857, 2 Hurl. & Nor. (Exch.), 549;
Langhom v. Cologan, 4 Taunt, 380; B, Oarwr
Co. V. Manf, In$. Co., 6 Gray, 214.

But the policy before us is materially differ-
ent from the class of open or running policies
adopted in England and upon the continent at
an early day, and which appear to be generally
if not universally in use at the present time.
Instead of determining the amount of premium
and inserting it in the policy at the time of its
execution upon the shipments to be afterwards
declared, as in the case of the policies we have
been considering, the parties here agree, that in
respect to a certain class of vessels, namely r
those rating lower than A 2, the premiums on
the risks shall be fixed at the time they are de-
clared or reported; when thus fixed, and the
premium paid or secured, the policy attachea
upon the goods from the time they are laden on
board the vessel. The mere declaration of the
ship on board, of which the goods are laden* ia
not sufficient to complete the contract, as some-
thing more is to be done by the assured to bring
the subject within the spechil stipulations in
the policy; he must pay or secure the addition-
al premium which the underwriter has reserved
the right to fix, at the time of the declaration
of the risk.

The premiums specified in the body of the
policy are nominal ; and the true premiums to
be charged are fixed by increasing or reducing
the nominal premiums when the risks are re-
ported. This,it was proved, was the established
custom of this Company, and of which the as-
sured is chargeable with notice. Indeed, this
custom appears to have been acted upon in con-
nection with this policy, and with the dealings
of the parties under it.

On the 18th August is Indorsed qn it: Brig
Windward, from Hio de Janeiro to Baltimore
—value of shipment $4,750. at 1^ per cent, pre-
mium; and on the 20th November: Brig T.
Walters, from same place to, Philadelphia —

527

401-^12

SUF&BMS COUBT OF THB UnITBD BtaTBS.

Dbc. Tsrm ,

value of ahipment $2,876, at li per cent, pre-
mium. The premiums for iDSurance of these
two shipments are i per cent, less than the rate
in the body of the policy.

We have said, that where the vessels to which
the insurance relates are not known to the under-
writer, a higher premium is always demanded,
as he has no opportunity to inquire into the
character or capacity of the vessel for the voy-
age; which information is readily accessible
where the ship is known, bv reference to the
book of the register of vessels kept by the un-
derwriters, in which the name, master, rate and
present condition are entered.

Now, the change made in this policy, and in
others of the class, in the time of flxine the pre-
mium, from that of the execution of the poucy
to the time when the risk is reported, places the
underwriters, in respect to fixing the premiums,
on the footing of insurance of goods to be ship-
ped on board a vessel named, the underwriters
possessing all the information possessed in that
case, in respect to the character of the vessel.
As the effect, therefore, of this change in the
terms of the policy is to reduce the rate of pre-
mium, it is as beneficial to the assured as to the
underwriter — which, doubtless, led to his as-
sent to this mode of insurance. It is true, that
in respect to vessels to be afterwards declared,
and the premiums on the risks to be fixed at
the time declared or reported, the parties stand
on the footing of original contractors, the un-
derwriter having the ri^ht to fix the premium,
and the applicant the right to assent or not, as
he sees fit; and, undoubt^ly, mutual confidence
must exist, in order to the succcbsf ul working
of the system. On the one side, the under-
writer might be unreasonable in the amount of
the premium claimed ; and on the other, the ap-
plicant, who is presumed to have the earliest
advices of the ship on which his goods are laden,
might conceal her condition when reported. and
Impose upon the underwriter. Injustice miffht
be practiced in this way by both parties, if Uiis
mode of dealing with each other may be as-
sumed.

But this would hardly be just as to either
party, and especially when the interest of both
IS concerned to deal Justly and honorably with
each other. The business of the underwriter
depends esentially upon the good faith with
which he deals with his customers; and this
motive, as well as the great competition that
exists in the business, may be well relied on to
prevent any unreasonable advantage. But, at
worst, the applicant is not bound to pay the pre-
mium, if unreasonable; and may at once be in-
sured in any other office, and claim a return of
premium, if any, advanced. The evidence in
the present case furnishes no groond for appre-
hension, as the premium charged was not un-
reasonable, but the contrary.

But, be the argument ever so strong in re-
spect to the opportunities to deal unjustly with
each other, it is quite clear, upon the fair if not
necessary construction of the terms of the
policy, both parties have agreed to submit to
them, for the sake of the better means furnished
to ascertain the true character of the risks, and
thus reduce the rate of premium below that
which was chareed under the old system, where
it was fixed in ue absence of knowledge on the
subject; and the period of time these policies

688

with this change of the terms has been in use,
for aught that appears, without complaint or
dissatisfaction, affords evidence that all appre-
hensions of unfair dealing are imaginary.

We have said that, according to the true cod-
struction of the terms of this policy, where the
vessel declared or reported by the assared wm
rated below A 2 , the Company had reserved the
right to fix at the time the adoitional premiom;
and unless assented to by the assureo, and the
premium paid or secured, the contract of in-
surance, in respect to the particular ahipmeiit.
did not become complete or binding. The court
below held the contrary, the instruction lo the
Jury maintaining that the contract was complete
and bindine as soon as the vessel was reported;
and that, if the parties could not agree as to the
additional premium, the question was one for
the courts to settle ; thus placing this policy upoo
the footing of those where the full premium
was fixed, and paid or secured, at the time of
the execution, and in which no special provis-
ions concerning the premium are inserted.

These special clauses are very explicit, and
are inserted in this policy for the benefit of the
Company. We think, independentlv of the usage
and practice of the Company under these pdi-
cies, the import of the language used cannot
well be mistaken.

The right is expressly reserved to charge an
additioniQ premium upon all vessels reported
rating below A 2; and again, the premiums on
risks are to be fixed at the time of indorsement
— that is, when the vessels are reported to be
noted on the policy. If the construction rested
alone upon the right to add additional pre-
miums upon a eiven rate of vessels, that might be
some ^und for the agrument that the time
for fixing them was open ; and if the parU«
could not agree, the law must determine the
question. But when the parties themselves
stipulated, not only that in the particulai^case
additional oremium shall be charged, but tlui
it shall be fixed at the time the risk is made
known, there would seem to be no room for
doubt or dispute in the matter. In the present
case, there is also the additional special provis-
ion, namely: "and such clauses to apply s»
the Company may insert as the risks are success-
ively reported," thus providing for any un-
foreseen or extraordinary risks that might be
claimed under the policy.

Even if an arbitrator had been acieed upon
to fix the additional premium, and he had re-
fused, the contract would have been at an end.
as the courts could not appoint one IWiOU ▼.
DaviM, 8 Men, 507; Milmy, Qery, I4yes.,400;
Code Napoleon, 1591 , 1602 ; 1 Troplong de vente,
Nos. 146, 160); and certainly they could not fii
the premium in this case, on the disagreement
of the parties, without assuming the right to
make a contract for them. The premiums were
to be settled when the risks were reported, not
at any other period.

In the case of policies on goods " in ship or
ships," to be afterwards decUmBd, and where
the full premium is paid or secured at the exe-
cution, the policy, even in that case, is a mere
outline of the contract, to be completed on
making the declaration; but if not made within
the terms of the policy, the contract is at an end
as respects the particular shipment.
t In ErUioitU v. BUis, 2 Hurl. & Nor.. JBxch.,

«4U.8.

1859.

8uN Mux. Ih8. Co. ▼. Wbight.

41d-42(>

549, 656. 1857, Channell, B., obsenred, speak-
ing of a policy of this description, at the time of
the making of the policy, certain particulars
were a^i^reea upon— others were left to be set-
tled. The policy was to be on rice, to be war-
ranted free from particular average, to be sent
"in ship or ships." Something more was want-
ing to make a binding contract. The parties can
only fill up such particulars as are left in blank
so as to be consistent with the policy.

Applying this principle to the policy in the
presen t case, regarding the special clauses therein
something more is required to make a bindin/{
contract than Uie declaration of a ship rating
lower than A 2 to bring the subject within the
policy; the additional premium fixed by the
company was to be paid or secured.

We have found very few cases in the books
upon the peculiar class of policies before us, and
no mention of Ihem in the text writers on the
subject of insurance. The case bearing more
directly than any other upon the point in ques-
tion is DoumUe v. Ths Sun Ins. 0o,,12 La. Ann. ,
259.

The contract of insurance there was in an
open or running policy of the class in which
the full premium was paid or secured at the
execution. But a modification was afterwards
made, by which ** it was agreed that this policy
shall cover merchandise to the address of the
assured from European ports to New Orleans,
«M Boston or New York, subject to additional
premium as per tariff."

The court held that by the terms of the policy
the party desiring to be insured upon any par-
ticular shipment of merchandise was bound to
present to the Company an invoice of the goods
<thiB had been provided for in the policy), and
pay or secure the premium; that the party was
not bound to report any shipment except at his
election, nor could the Company demand pre-
mium on the same, unless presented for insur-
ance; and that, on a policy of the class before
the court, there must necessarily exist as many
contracts of insurance as there are indorsements
on the policy of separate shipments.

We have examined this case more at large,
from the novelty of the questions involved, as
they do not seem to have been the subject of
consideration by the courts or text writers, than
from any difficulty we have felt in the view to
be taken of them; and from the examination
we have giveli to the peculiar features of the
policy, we entertain no doubt but that the
changes made, and which have been particularly
referred to, will be found in practice beneficial
both to the insured and insurer.

The only defect, perhaps, existing, is the
want of a provision for the case, which may
happen, where the declaration or report of the
ship is not made until the loss is known — that
is, wEere the ship and the loss are reported to-
gether. According to the old form of the policy,
Uie full premium being ascertained and fixed at
the date of it, it is well settled that, though the
declaration is not made tUl the loss is known, if
made with due diligence after advices of the
ship, the underwriter is liable. There may be
some difficulty In applying that rule to the class
of policies before us. It was rejected in the case
of DouvQle V. Tlta Sun Ins. Co. ,above referred to.
Upon the tohole, after the best eonrnderaiion we
have been able to give to the ease, we are satisfied

See 23 How. U. 8., Book 16.

ths ruling of the court bdow was erroneous, and
the judgment must be reversed, and a venire de
novo awa/rded.

Dissenting. Mr. Justice Clifford.
8ee dissenting opinion in next succeeding
case.

8.C.— IWallMiM.

Clted-28 How., 433; 1 Wall., 477, 488; 78 N. Y., 18.

THE SUN MUTUAL INSURANCK COM-
PANY, Plff. inEr.,

JOHN. 8. WRIGHT, use of Maxwell,

Wright & Co.

(See 8. C, 28 How., 412-420.)

Orient Mut, Ins, Co, v. Wright, ante, p. 5£4,
affirmed — uxUver by insurance company.

The questions involved are sutMtantiaUy the
same as have been examined in the case of the
same plaintiff acrainst the Orient Mutual Insuranoe
Company, and the decision in that erovems the
present one.

•Where the plaintiff objected to the premium, and
the Company, in answer to this, responds, that it
had reserved the right in the policy to fix the pre-
mium in case of vessels rating l>elow A 2, and that
it could not consent to its determination by a
third person ; held, that there was no waiver of
this riiBrht of fixing the premium on the part of the
Company.

Argued Mar. 18, 1860. Decided Apr. ^S, 1860.

IN ERROR to the Circuit Court of the United
States for the District of Maryland.

This action was brought in the Superior
Court of Baltimore City, ov the defendants in
error, on a certain policy of insurance.

On petition of the defendant, the cause was
removed into the Circuit Court of the United
States for the District of Marvland.

The trial resulted in a verdict and judgment
in favor of the plaintiffs for $17,365.18. with
costs; whereupon the defendimt sued out this
writ of error.

A further statement of the case appears in
the opinion of the court. See, also, the preced-
ing case, which 1b substantially the same as this.

Mr. F. B. Catting* for plaintiff in error.

Messrs. R. J. Brent and BL Ma^« for de-
fendants in error.
See argument in the preceding case.

Mr. Justice Nelson delivered the opinion of
the court:

This is a writ of error to the Circuit Court
of the United States for the District of Mary-
land;

The suit below was upon a policy of insur-
ance brought to recover a loss upon coffee on
board the vessel Mary W. on a voyage from
Rio de Janeiro to a port in the United States.
The above questions involved are substantially
the same as have been examined in the case of
the same plaintiff against the Orient Mutual
Ins. Co. , and the decision in that governs the
present one.

It was insisted in this case, on the part of the
plaintiff below, that the Company had waived
the question as to premium on the declaration
or report of The Mary W., as it was bound by

84 629

41^-420

SuFBBMB Court of thb Unttbd Btatba.

Dbc. Tsrm^

the act of the agent hi making the indorsement
on the policy, who added amply the words,
"not to attach if the vessel proved unsea-
worthy."

The Company were advised, by a letter of
their agent, dated August 28, 1856, of the ap-
plication of the plaintiff to have the coffee in
question on The Mary W. entered on his policy ;
and on the 25th of the month they answered,
directing the agent to inform the plaintiff of
the facts the Company had previously commu-
nicated to R. C. Wright, a brother, m relation
to the vessel, and that they regarded her an
entirelv unfit vessel for a cargo of coffee, and
should not consider the policy as attaching to
the cargo.

The correspondence with R. C. Wright on
the subject was under date of the 14th August,
same year, and which related to a different
shipment of coffee on the same vessel.

The plaintiff, notwithstanding the objections
of the Company, insisted upon his right to have
the coffee covered by the policy, and so advised
the agent, who communicated the information
to the Company. On the 26th of the month,
they, still insisting that the vessel was unfit
for such a cargo, instructed the agent to inform
the plaintiff that if he claimed the propeity to
be covered by the policy, he must conuder it
subject to the risk of the policy not attaching
from the unseaworthiness of the vessel. Upon
this, the agent entered the coffee upon the pol
icv, with the words, *'not to attach if ves-
sel be proved unseaworthy," and so advised
the Company. They, on receiving this advice,
immediately informed the agent that the in-
dorsement was a practical nullity, and directed
him to inform the plaintiff that they conceded
his rieht to be covered by the policy, and that
they had no other remedy but to name a pre
mium commensurate to the risk, and fixed the
premium at ten per cent., subject to the condi-
tions of the policy, or two and a half per cent,
upon a total loss. In answer to this, the plaint
iff objected to the premium, insisting, if The
Mary W. rated below A 2. the Company were
onlv entitled to an equitable rate of premium;
and if they and he could not agree, it was a
proper case for a reference.

The Company, in answer to this, respond,
that they had reserved the right in the policy
to fix the premium in case of vessels rating
below A 2, and that they could not consent to
its determination by a third person. The plaint
iff again denied the right of the Company to
fix the premium, and thus the correspondence
terminated.

It is quite apparent that there was no waiver
of this right of fixing the premium on the part
of the Company, nor was it claimed or sug-
gested in the communications between the par-
lies at the time.

Judgment rewrsed, and a venire de novo
awQA'ded,

Mr. Justice Cliirord« dissenting:
I dissent from the opinion of the court in this
case; and inasmuch as the question presented
is one of considerable importance, I think
it proper to state the reasons of my dissent.

John S. Wright, the present defendant, sued
the plaintiffs m error on a policy of insurance,
to recover for a total loss of a cargo of coffee,

shipped from Rio de Janeiro to New Orleans
on the schooner Mary W. As appears by the bill
of lading, the goods were shipped at the port,
of departure as early as the 12Ui day of July,
1856. and the vessel sailed for New Orleans
on the same day. She had stormy weather alter
her departure; and on the 20th day of August
followmg she was wrecked upon the rocks,
and all her cargo was lost. Notice of the ship-
ment was received by the plaintiff on the 23d
day of August. Ib56, and on that day he notified
the agent of the defendants, residing in Balti-
ihore, of the same, and requested him to enter
under his policy the cargo of the vessel, which
consisted of coffee, valueid at $18 per bag.

By the terms of the policy the plaintiff waa
insured, "on account of whom it may concern
— loss payable to them, lost or not lost— at and
from Kio de Janeiro to a port of the United
States, on one half of five thousand bags of
coffee, each two hundred bags in running marks
and numbers, in order of invoice, subject to
separate average, upon all kinds of lawful goods^
and merchandise laden on board of the good
vessel or vessels, beginning the adventure upon
the said goods and merchandises from and im-
mediately following the loading thereof on board
the said vessel at the place of shipment as afore-
said, and so shall continue until the said goods^
and merchandise shall be safely landed at the
place of destination, as aforesaid."

Another clause was that ' * the said goods and
merchandise hereby insured are valued at $18
per bag, as interest may appear."

Payment of the consideration by the assured
is expressly acknowledged by the terms of the
policy, at and after the rate of one and one half
per cent. — to return one fourth per cent., if di-
rect to an Atlantic port; to add an additionii
premium, if by vessels rating lower than A 2. or
by foreign vessels, subject to such addition or
deduction as shall make the premiums conform
to the established rate at the time the return is
made to the Company.

Some reference to the correspondence be-
tween the parties becomes necessary, in order
that the true nature of the controversy may be
fully and clearly understood.

Defendant is a Corporation, doing business
in the City of New York; but they have an au-
thorized agent in Baltimore, where the defend-
ant resides. Their agent informed them by
letter, under date of the 28d of August, 1856.
that the plaintiff on that day had requested
him to enter this cargo under his policy ; and
in the same letter stated the amount of the
goods and the name of the vessel. To that let-
ter the defendants replied three days afterwards,
saying that they considered the vessel entirely
unfit for a cargo of coffee, and should not con-
sider their policy as attaching thereto.

That information was communicated to the
plaintiff by the a^ent on the following day;
but the plaintiff insisted that the goods were
covered by the policy; and on the same day
the defendants were informed by their agent
that the plaintiff did so insist. They were also
furnished by their agent at the same time with
a letter from the plaintiff, giving his reasons for
insisting that the cargo should w entered under
the policy. In that letter he stated that the
sole object of open or running policies would
be defeated, if the underwriters were at liberty

64 U.S.

1859.

8uN MuT. Im8. Co. v. Wbight.

412-420

to decline any risk that migbt arise under them;
and repeated, that he considered the defendants
bound, hj the spirit as well as the letter of their
policy, to cover the goods at risk on this vessel.

Each party was thus fullv possessed of the
views of the other, and of all the circumstances
of the case. Neither appears to have enter-
tained a doubt as to the validity of the contract,
and the only matter in dispute between them
was the fitness of the vessel for such a cargo.
But they had further correspondence, which it
is important to notice, in order to understand
the real nature of the controversy between the
parties. Following the order of events, the
next letter is the reply of the defendants to
their agent, which is dated the 26th day of Au-
gust, ll56, three days before the loss, and more
than forty days after the vessel had departed
on her voyage. In that letter they say, after
acknowledgmg the receipt of one toTwhich it the
was a reply, that, with regard to the case of
the schooner under the policy of the plaintiff,
thev can only repeat their belief that she is an
unnt vessel for such a cargo, which makes her
an unseaworthy risk, and request their agent
to say to the plaintiffs, that if he deems the
property covered bv the policy, he must so con-
sider it subject to the risk of the policy not at-
taching from the unseaworthiness of the vessel.

Pursuant to that letter, the agent of the de-
fendant's, two days afterwards, wrote to the
plaintiff, that the president of the Companv
'* has requested me to say to you, that he will
cover for the schooner Mary W., but you must
consider it subject to the risk of the policy not
attaching from the unseaworthiness of the ves-
sel," and made the indorsement on the policy
as follows, datine it on the precieding day :

" Au^s^ 27, 1856. Schooner Mary W., Rio
de Janeiro to New Orleans, on i cargo, 1,830
bags of coffee, at $18 per bag — not to attach if
vessel be proved unseaworthy — $16,470."

When that indorsement was made, in my
judgment the contract became complete, leav-
mg the additional premium to be equitably ad-
justed between the parties, according to estab-
lished rate of vessels rating under A 2; or in
case of dispute, to be setued, like any other
controversies, by the judicial tribunals. E.
Carver Co, v. Manvf. Ins. Co., 6 Gray, 214.

On the following dav the agent informed the
defendants that he had made the indorsement.
To that letter they replied on the 29th day of
the same month, saying, in effect, that the con-
dition inserted in the indorsement was practi-
cally a nulli^^; and as a reason for that conclu-
sion, they add that no risk attaches if Uie ves-
sel IS proven to be unseaworthy; but the diffi-
culty is, so to prove it. After some other
remarks, which it is not important to notice,
they go on to say, that no other remedy remains
except to name a premium commensurate with
the risk, which they therein insist it is their ,
right to do. Accordingly, they fix ten per
cent., subject to the conditions of the policy,
or two and a half per cent, against a total loss,
and direct their agent to notify the plaintiff of
their action in the premises, that he may deter-
mine on which rate he wanted the risk entered.
That notice was given to the plaintiff by the
t^nt on the 2d day of September following.
He objected to the rates named as exorbitant,
but admitted the right of the Company to an

See 28 How.

equitable rate, and insisted that the cargo was
covered by the policy. His views were com-
municated by the agent to the defendants on
the 8d dr^ of September, 1856, and on the fol-
lowing (fay they struck the risk from their
books.

Evidence was introduced by the plaintiff
that the premiums specified in the body of run-
ning policies are nominal, and that the true
premiums to be charged are fixed by increas-
ing or reducing the nominal premium when
the risks are reported. Premium notes were
given by the plamtiff in this case at the policy
rate of one and one half per cent., ana were
paid by him to the defendants at their maturi-
ty long before the loss in this case. Sums paid
for premiums on running policies, according to
the custom of this Company, are returned if no
risks are reported, but with a deduction of a half
per cent. , which is retained by the Company
for their services. According to the testimony
of the agent, he had no power to bind the Com-
pany from the time of the application for in-
surance until the answer thereto was received
from the Company.

On this state of the case, the presiding jus-
tice instructed the jury as follows: "If the
jury shall find, from the evidence, that the de-
fendants executed the policy of the 27th of
July, 1855, and received from the plaintiff the

Sremium therein mentioned; and that their
uly authorized agent in this city made the
indorsements on the policy which have been
offered in evidence; and shall further find that
1,880 bags of coffee belonging to the plaintiff
were shipped on the 12th day of July, 1856, at
Rio, on board the schooner Mary W., to be
carried to New Orleans; and that when the
schooner left Rio she was seaworthy and in
good condition ; and shall further find that the
vessel and cargo were subsequently on the voy-
age totally lost by one of the perils insured
against; and that the schooner was rated lower
in New York than A 2, then the plaintiff is
entitled to recover for one half the value of the
coffee so lost, at $18 per bag, less such addi-
tional premium beyond the li per cent. , as in
the opinion of underwriters may be deemed
adequate for the increased ribk to a cargo of
coffee shipped in a vessel rating below A 2.
with interest from thirty days after such time
as the jury may find the defendants were fur-
nished by plaintiff with the preliminary proofs
of his loss."

Under the instructions of the court, the jury
returned their verdict for the plaintiff, and the
defendants excepted. That instruction, so far
as it is necessary to consider it at the present
time, affirms that, by the true construction of
the policy, the contract between the parties
under the circumstances of this case, as dis-
closed in the evidence, was complete when the
shipment of the goods was reported by the
plaintiff, and the indorsement was made upon
the policy by the authorized agent of the de-
fendants. In that view of the case I entirely
concur. When the report was forwarded by
the agent, the only objection made to the risk
was, that the vessel was unsuitable, or that she
was unseaworthy. That objection was repealed ,
and finally the plaintiff was told, that if he in-
sisted upon the indorsement, it would only be
upon the condition that the policy should not

531

477-481

BUP&BMB COUKT OF THB UHITBD IJTATKA.

Dec, Tkbm,

attach if it turned out that the objection of the
defendants was well founded. He accepted
the condition,and the indorsement was so made.
After the indorsement was made, it was too
late for the defendants to reconsider the position
they had voluntarily assumed. E. Carver Go.
▼. Manuf, Ins, Co,. 6 Gray. 214.
Suppose they had a right , as a condition

Precedent, to demand the payment of the ad-
itional premium before making the indorse-
ment; they did not insist upon the right, but
voluntarily waived it. They had already re-
ceived the policy rate of one and one half per
cent., and to the present time have neglected to
refund the same. Prepayment of the policy
rate was a sufficient consideration to uphold
the contract; and certainly it will not be de-
nied that that they might waive the riffht to
claim prepayment of whatever might be due to
them for the additional premium contemplated
by the policy. But their riffht to demand the
additional premium as a condition precedent to
the indorsement cannot be admitted. Such a
construction would defeat the policy and, there-
fore, must be rejected, unless the lanffuag e of
the instrument is imperative to that effect. 1
Phil. Ins., sec. 488, and KewUy v. Ryan, 2 H.
BL, 848. Policy rate is not the actual rate of
adjustment between the parties in any case
under this instrument, unless, perchance, it
happens to be the established rate at the time
the return is made to the Company. Cravford
V. Hunter, 8 T. R., 16. noU,

Addition or deduction from policy rate is to
be made in all cases so as to make the sum
paid and received conform to the established
rate. Something, therefore, remains to be done
in respect to every risk, irrespective of the
character of the vessel. In case the shipment
is by a vessel rating under A 2, or by a foreign
vessel, an additional premium may be added;
but there is no stipulation in the instrument
that it shall be paid in advance of the instru-
ment ; and there is nothing in the language of
the instrument from which to infer that such was
the intention of the parties. That inference
was wholly gratuitous, and in my judgment,
unfounded. When adjusted, the sum to be
paid must conform to the established rate at
the time the return was made to the Company.
If the parties cannot agree what the estab-
lished rate was at that time, like other matters
of controversy, it must be settled by the judi-
cial tribunals. Harmcm v. Kingston, 8 Camp..
150; 1 Arnold, Ins., 175, 177; Smith's Mer.
L.. 208; U, 8, v. Wilkins, 6 Wheat, 144. Un-
less this be the true construction of the policy,
then it is a delusion which ought to be shunned
by every business man. Lm often occurs
before the notice of the shipment The assured
cannot adjust the additional premium until he
knows by what vessel the shipment has been
made, so that, if it be true that the contract is
incomplete until the additional premium is
adjusted and paid, then open or running poli-
cies for the insurance of goods from distant
ports are valueless. They are worse than
valueless, as generally understood, because
they have the effect to delude and deceive.

iW tfiese reasons, lam of the opinion tliat the
judgment of the circuit court ought to be affirmed.

Cited— 1 Brown, 175.
582

JOHN P. CALLAN and MICHAEL P. CAL-

LAN, Appts.,

CHAS. W. 8TATHAM bt al.

(See 8. C, S8 How., 477-4SL)

Deed, whenfra/udvlent as to creditors — preef ef
payment of consideration, necessary to sustatm
— possession, and other facts— price below tnu
Tolue.

Upon a creditor's bill to set aside a deed, the
court below decreed that the deed was firaudulent
as against creditors, because the price was consid-
enibly l)elow its true value, ana because the evi-
deooe in respect to the payment of the conaidem-
tlon stated in the deed, was unsatisfactory.

Proof of payment of the consideration was vital
to uphold the deed where the evidence was in de-
fendant's possession and the transaction was secret.

The want of such proof is nearly. If not quite:
fatal to the validity of the deed as SRainat creditors.

Other facts also tended to justl^ the decree, to
wit : The oontinuanoe of the vendor in the pooscn
sion of the premises, the same after the deed an tie-
fore'; his heavy indebtedness; and suits pending and
maturing to judsrments against him ; all of which
were well known to the vendee.

Argued Mar, 98, I860. Decided Apr. tS, 1860.

APPEAL from the Circuit Court of the Unit
ed States for the District of Columbia.
The history of the case and a statement of
the faclA appear in the opinion of the court.

Messrs. W. 8* Cos and H. W* Davis, for

appellants:

1. It is maintained for the appellants that
the pleadings did not Justify the decree of the
Circuit Court The bills deny that the consid
eratioD, recited in the deed of Oct. 16, 1851
actually passed. The answers aver that it did.
and show that it was paid partly by surrender
of a note for $4,000, and partly by a cash pay-
ment. These answers are responsive and arp
not disproved by any evidence and are, there-
fore, conclusive.

Feigle^ v. Feigley, 7 Md.. 687.

The deed not being voluntary and fraodu
lent per se^ actual fraud must be alleged and
proved, not only against the grantor, but also
against the grantee.

Stat. 18 Eliz., ch. 5, sec. 6; Story, Eq. Jur..
sec. 858.

All the authorities hold that a bona fide pur-
chaser without notice of fraud, is not aifected
by the grantor's intent to defraud creditors.

See Astor v. Wells, 4 Wheat., 486; Union
Bank v. Toomer, 2 Hill, Ch..27; Storer v. Bar
rington, 7 Ala., 142; Pope v. Andrews, 1 S. &
M. Ch.. 2d7.

2. But supposing the pleadings sufficient,
what are the alleged evidences of fraud?

1. The inadequacy of the consideration.

It appears that the consideration was not in-
adequate; that the complainant's witnesses
bverestimated the value of the property; that
the title was defective; and thai this consider-
ation entered into the consideration of value.

2. The next evidence of fraud relied on h
John F. Callan's continuance in possession of
the property after his conveyance to his
brother, and his receipt of rents from it.

Whatever might be the case in r^ard to tht'

Note.— Fraud in avoidcmce nfdeeds. See note to
Harding v. Handy, 84 U. 8. (U Wheat.), 108.

64 U.S.

1869.

Callak y. Statham.

477-481

personal estate, possession of real estate is no
evidence per m, of fraud.

PhetUpiaee y, Sayles, 4 Mason, 312.

Positive denials of fraud in the answers, can-
not be overcome by mere suspicion.

QUnn V. Orowtr, 8 Md., 212; 9 Om, 215; 7
Wend.. 259

8. But it is maintained further by the appel-
lants:

1. That John F. Callan's interest in the prop-
erty was such as creditors cannot reach. lie
did not pay anything for it, but had merely a
right to acquire title hereafter on condition of
paying within a certain time. On such an inter-
est no common law execution could be levied;

VanNeu v. ByaU, 18 Pet., 294; Hopkins v.
Stump, 2 Harr. & J., 301; &iwyer v. Morte, 3
Cranch, C. C, 381; Bogart v. Perry ^ 1 Johns.
Ch.. 52;

Nor can it be reached in eouity.

Dundas v. Dutent, 1 Yes., jr.. \96\ Nantes v.
Garrvek, 9 Ves., 183; Rider v. Kidder, 10 Ves.,
368; GnUaud v. E^twiek, 2 Ansty., 381; Dan-
oftan v. Finn, 1 Hopk. Ch., 59; iSwing v. Can-
trett, Meigs, 904; Shrwin v. Oldham, 6 Yerg.,
185.

2. A conveyance of such an interest cannot
be considered fraudulent against creditors.

Grogan v. Oooke, 2 Ball & B., 232; Doyle v.
Sleeper, 1 Dana, 534; Buford v. Buford, 1
Bibb. 305: Mathews v. If^ver, 1 Cox, 278.

Messrs. A. Aastin Smith and Chilton
As D*Tidee« for appellees:

1. The ^cree is right, and ought to be af-
firmed.

After reviewing the circumstances of the
case, the counsel said :

The indicia of fraud relied on are:

The insolvency of the grantor and pendency
of suits against him about ripening into Judg-
ment, known to the grantee; the inadequacy
of price; continued possession and enjoyment
of the property by the grantor after the deed;
the failure to show the payment of the alleged
consideration: the antedating the deed and
withholding the same from the record; the
evasive and uncertain character of the answers;
the falsity of John F. Callan's answer and its
adoption by M. P. Callan, the grantee; the
blood relationship of the parties; the inconsist-
ency of the grantee's conduct, if bona fide; the
secrecy of the transaction ; the sweeping grant
in the deed, and the admitted previous intent
by the grantor to defraud his creditors, are so
numerous and well established, as hardly to re-
quire authority. The following are relied on
in support thereof:

ffudffins V. Kemp, 61 U. 8. (20 How.), 45;
Sands v. Godwise, 4 Johns., 580; Parker v.
Holmes, 2 Hill, Ch.. 95; Lee v. Hunter, 1 Paige.
519; Miller v. TolUson, 1 Harp. Ch., 145; Boi-
man v. Draughan, 8 Stew.. 243; Bank U. 8,
V. Housman, 6 Paige. 526; Land v. Jeffries, 5
Rand.. 211; Halbert v. Grant, 4 Mon., 580;
Hildreth v. Sands, 2 Johns. Ch., 35: WaleoU v.
Almy, 6 McL., 23; Johnson v. Dick, 27 Miss.,
277; 1 Story, Eq. Jur., 869; 3 Md. Ch., 34,35;
Swann v. Dent, 2 Md. Ch., Ill, 220; Perkins
v. PiUUn, 10 Ga., 241; SiMthy. Henry, 2 Bai-
1^. 128; TrimhleY. Batcliff, 9 B. Mon., 511.

2. The appellants attempt to explain the in-
adequacv of price by assailing their own title.
This objection I to the title, however, is not
See 28 How.

taken by either appellant in his answer. It is
not pretended that it was known to Michael P.
Callan, or influenced the price.

If he had regarded the title as bad, it is in-
conceivable that he should have purchased at
all; and even if there were no inadequacy, the
other badges of fraud remain.

Under the Statute of 13 Eliz., the convey-
ance must be, not only for a valuable consider-
ation, but bona fide. Both must concur.

1 Story, Eq. Jur., sec. dOSfSandsv, Godwise,
4 Johns., 536; Glenn v. BandaU, 2 Md. Ch.,
220.

3. A court of chancery will, at the suit of
creditors, reach and condemn property which
has been fraudulently conveyed, although it
could not have been reached at law.

Bayard v. Hoffman, 4 Johns. Ch., 450; Hod-
den V. Spader, 20 Johns., 554; Weed v. Pierce,
9 Cow., 722; Storm v. WaddeU, 2 Sandf. Ch.,
495, 511 ; T&ppan v. Bhans, 11 N. H., 812, 326;
Sargent y, Salmond, 27 Me., 539.

Mr. Justice Nelaon delivered the opinion of
the court:

This is an appeal from a decree of the Cir-
cuit Court of the District of Columbia.

The suit below was a creditor's bill, filed by
Statham and others, the appellees, to set aside
a deed made by J. F. Callan and wife to M. P.
Callan, on the 16th October. 1854, conveying
lot No. 8, in square No. 456, with the improve-
ments, in the City of Washington, and to sub-
ject it to the payment of the plaintiff's Judg-
ments.

Judgments to an amount exceeding $3,000
were recorded against J. F. Callan, 6th May,
1855. The deed was recorded 14th April. 1855.

A second bill was filed against the same par-
ties and others, on the 9tn August, 1856. by
Austin Sherman, a judgment creditor of J. F.
Callan, for the purpose of setting aside the
same deed, and subjecting the propertv to the
payment of his Judgments recovered 2d April.
1855. and exceeding in amount $9,000.

The two suits were consolidated, as the same
proofs were equally applicable in respect to the
charge of fraud in the execution of the con>
veyance sought to be set aside. The court be-
low decreed that the deed was fraudulent as
against creditors, and directed the property to
be sold, and the proceeds to be brought into
court for distribution. The case is here on an
appeal from that decree.

At the date of the deed of October, 1854,
Callan was heavily in debt — several suits im-
pending over him and maturing to judgments,
to whicn the property in question would have
been subject. The conveyance was made to a
brother, for the consideration, as stated in the
deed, of $4,900. The premises conveved, ac-
cording to the estimate of witnesses who were
well acquainted with them, were worth at the
time, exceeding $15,000. assuming the title to
be good, which will be noticed hereafter. The
vendor continued to possess and occupy the
property after the conveyance the same as be-
fore, leasing the buildings and collecting the
rents in his own name, and not accounting to
tlie vendee for the same. Indeed, the vendee
seems to have taken no part in the management
of the property ; nor does it appear that he has
exercised any act of ownership over it since

58t

40-65

BUPHBJCB COUBT OF THB UlTITED BTATBS.

Dec. Tbem,

the purchase, and down to the taking of the
proofs in these cases.

In the answer of Oallan, the vendor, to the
bill of Statham and others, to the charge that
the consideration mentioned in the deed was
not paid, he simply states that it had been fully
paid by his brother, the vendee. The vendee,
for his answer, adopts the answer of his co de-
fendant.

In their answer to the bill of Sherman, they
concur in statingHhat $4,000 of the considera-
tion was paid by the surrender of a note the
vendee held against the other parly, and $900
in cash, and that the payment was not made in
presence of any third person.

Xo proof was given by the defendants in re-
spect to the payment of the consideration, with
a view of sustaining the allegation in the an-
swers. They rely entirely upon the rule of
pleading, that the answers are responsible to
the bill, and to be taken as true till overthrown
by proof on the other side. As they aver the
payment was a transaction between themselves,
and the principal part a note held by the vend-
ee, which he surrendered, the evidence in re-
spect to which is, therefore, exclusively within
their own knowledge, it would have been more
satisfactory if they had given some proof in
support of the answers, especially when there
were other accompanying circumstances, tend-
ing to excite distrust and suspicion as to the
bonaJide$ of the deed.

As it respects the defect in the title, relied on
to reduce tiie value of the property, it appears
that J. F. Callan, in November, 1840, took a
lease of this property from one W. Robinson,
trustee of Alice Jennings, Alice ioiniog in the
lease for the term of her natural life,~for the
annual rent of $200; and in which lease it is
agreed that, upon the death of the said Alice, the
lessee shall have the right to purchase the es-
tate for the price of $8,000; upon the payment
of which, Robinson binds himself and his heirs
to convey the title. Alice died in May, 1861,
and Robinson some years earlier.

It is insisted, on the part of the defendants,
that the heirs of Robinson, and also of Alice,
refuse to carry into execution this contract, and
have refused to accept the $8,000. There is
some obscurity upon the evidence, as it re-
spects the precise state of this question at the
time of the deed from Callan to his brother, in
October, 1854. It is claimed, on the part of the
Judgment creditors, that this money had been
paid and that the deed from the heirs was kept
back in fraud of their rights. Perhaps the
better opinion is, upon the facts, that the
money has not been paid and that the prop-
erty is subject to this incumbrance. It is clear,
however, that there is no serious embarrassment
in the way of clearing the title on payment of
the money.

It appears, by some arrangement, not par-
ticularly explained, with the heirs, after the
death of Alice, Callan agreed to pay the inter-
est on the $8,000, and which has been paid
down to the month of July, 1854; and the case
shows that, upon the payment of the purchase
money, with the interest, from the period last
mentioned, the title can be obtained. It would
have been remarkable if this right of purchase
had not been preserved, as it appears Callan

584

has put on the property improvements to the
amount of from $7,000 to $10,000.

The question as to the title is only Important
as entering into the estimate of the value of the
property, and as tending to rebut the under-
valuation of the price, as charged in the bill.
It is clear, however, admitting the property to
be subject to the payment. of $3,000, that the
price was considerably below its true value.

But, independentlv of this consideration,
there are other facts in the case that may well
justify the decree below — ^the most important,
perhaps, the unsatisfactory evidence on the
part of the Callans in respect to the payment of
the consideration stated in the deed. This
proof was vital, in order to uphold a deed ia
other respects surrounded with suspicion. The
evidence was in their possession; and their ad
mission that the transaction was secret made
the proof still more indispensable on their pan.
The want of it, under the circumstances, is
nearly, if not quite, fatal to the validity of the
deed as against creditors.

The continuance of the vendor in the posses-
sion and occupation and full enloyment of the
premises, the same after the aeed as before,
and absence of interest in the subject mani
fested by the vendee, are circumstances not
satisfactorily explained; also, the heavy in
debtedness of J. F. Callan. and suits pendinj?
and maturing to judgment — all well known to
the vendee.

We are uUisfled the decree of the eowH beUne is
right, and should be affirmed.

HENRY OELRICKS and GU8TAV W.
LURMAN, Plffs, in Br„

BENJAMIN FORD.

(See 8. C, 23 How., 49-66.)

Usage, when admimble to explain instrument-
effeet of, how limited — cannot add to or tary
contract — ambiguity — suretff — verbal negoHa-
tione, prior to written contract — when eonJtract
binds principal, not agent.

There must be ambis-uity or unoertatnty upon
the face of a written instrumeat, arising oat of
the terms used by the parties In order to justify
extraneous evidence of usage ; and, when admiw-
bie, it must he limited in ite elfeot to the dearUifr
up of the obscurity.

It is not admissible, in order to add to or engraft
upon the contract new stipulations, nor to contn-
diet those which are plain.

Proof of usagre is inadmissible where there ii
no ambiflruity or uncertainty in the terma of a
contract, and the condition sougrht to be annexed
was not by way of explanation or interpretatioD.
but in addition to the contract.

Where plaintiff a^rrees to deliver flour, in ooasld-
eration of which the defendants a^ree to pay the
price, parol evidence, of usaffe to superadd bb a
surety a given sum of money, u inadmissible.

Any conversations and verbal understanding be-
tween the parties at the time, were merged in the
contract, and parol evidence is inadmissible to en-
graft them upon it.

The court below was right in excluding the eri-
dence of the usage from the jury ; 1, because th«
usage was not proved ; and 2, it was inoompetesi

Note.— r78ao» and custom ; admissUHlity of in con-
struction of cmitracte. See note to Adams v. Otter-
bach, 66 U. S. (]j5 How.), 690.

64 U.S.

1859.

Oblrickb y. Porj>.

49-65

^jrary the clear aad poaltive terms of the Instru-the other to comply with the demand. The evi-
dence on the part of the plaintiff in error came
fully up to the standard required.

2. The true and only object of introducing
evidence of usage, is to ascertain and give ef
feet to the intentions and understanding of the
parties to a contract. The proof must, there-
fore, be such as to show that the partie8 knew
and adoi)tcd the usage as part of their contract,
or, as it is commonly expressed, that they con-
tracted in reference to it.

The validity and binding effect of usage
does not depend upon the extent to whichitis
adopted, but upon the fact whether or not the
contract is made in reference to it. Unless this
were so, there could be no such thing as a valid
usage confined to a particular place, or business,
or branch of business, or to the business of par-
ticular individuals or companies. Yet, all such
exist and have been legally recognized, and a
fortiori where the usage of the particular com-
panv or individual is expressly referred to, and
made part of the contract.

Gabay v. Lloyd, 8 Bam. & C, 798; Salman
FaU$ Mfg, Co. v. Ooddard, 14 How., 456; Ben-
ner v. Bank of Columbia, 9 Wheat.. 581 ; Mills
V. Bank of U. A, 11 Wheat., 488; LoHng v.
Oumey, 5 Pick., 16; MeDoweU v. TngenoU, 5
S. & R, lOL; Kno(B v. Bif)e8, 14 Ala., 249.

8. It is admitted that the custom must

meat.

Where the mime of the prinoipal Is disolosed In
the oontract, and the plaoe of his residenoe, as the
person makiner the sale through his affent^-thls
fixes the duty of the performanoe upon him, and
exonerates toe a4rent.

Argued Apr. 19, 1860. Decided Apr. SO, 1860.

IN ERROR to the Circuit Court of the United
States for the District of Maryland.

This was an action of aseumpsit brought in
the court below by the defendant in error, to
recover damages resulting from the alleged
breach of a certain contract.

The trial resulted in a verdict and judgment
in favor of the plaintiff for $12,161 damages,
and $68.50 costs; whereupon the defendants
sued out this writ of error.

The facts of the case are very fully stated by
the court.

Meters. WlUiam F. Friek, J. P. Bei^a-
-min and J. Nelsoiit for plaintiffs in error:

The plaintiffs in error in this court will in-
sist:

1. All the evidence on the case ought prop-
erly to have been submitted to the Jury, and
was sufllcient, if they believed it, to establish
the existence of an usage, among a certain class
of flour dealers in the City of Baltimore, ac-
customed to deal in "time contracts," under
which either the buyer or seller might demand
security, by way of a margin to be put up by
both, whenever the faithful performance of
such a contract should be considered doubtful
by either party.

2. There was evidence in the cause, which
ought properly to have been submitted to the
Jury, tendmg to show that both the agent of
the plaintiff below and the defendants, made
all their " time contracts *' for flour, with ref-
erence and subject to such an usage.

3. The usage, as proved, was a reasonable
and lawful usage.

4. The effect of the usage was not to vary
and contradict the contract; but to add to it
something incidental and not inconsistent with
it ; and that on this ground proof of the usa^
was admissible, although the contract was m
writing. The agreement f or a " time " sale of
flour, on certain terms and for a margin, being
one and simultaneous, and a part only of the
contract having been reduced to writing, parol
evidence of the residue was properly admissible.

5. The agent of the plaintiff below had a
right to contract in reference to the usage so as
to bind his principal.

6. That not only by the rules of legal pre-
sumption, but by necessary inference from the
facts, the credit in this case was given exclu-
sively to the agent, and the principal had no
right of action on the contract; and that even
if this were otherwise, the rule of damages, as
applied to the case, was erroneous.

1 . The proof shows the existence of a distinct
class of traders, accustomed to deal in ' * time **
contracts for flour. The custom contended for,
is confined to that class of dealers.

The custom is simply that a right is reserved
to both parties to call for a " margin."

The usage, as proved, ^oes further. It defi-
nitely fixes the time at which the security may
be demanded, its nature and amount, and the
ri^bt of the demanding parties forthwith to re-
scind the contract on the refusal or failure of

How.

be reasonable and lawful. The theory on
which a usage is adopted is, *'that it is a
part of the contract." Therefore, any and every
rule of law which may be controlled by the
positive and express stipulations of parties, may
be controlled to the same extent by usage. The
true scope of the rule is, that no usage can
make valid a contract which the law prohibits
or incorporate elements in the coniract which
are, in themselves, unlawful. Tested by these
rules, the custom proved in this case is neither
unreasonable or unlawful. It is an incident to
the contract, without which the contract itself
is amenable to the charge of being unfair and
immoral. This usage, properly understood, is
designed to protect the fair and responsible
trader from the insolvent rambler, and to con-
vert what mi^ht be in its design a wager mere-
ly, into a valid contract in its effect.

4. While it is clear that evidence of usa^ is
not admissible to vary or to contradict, either
expressly or by implication, the terms and pro-
visions of a written contract; it is eoually so,
that in commercial transactions extrinsic ca-
dence of custom and usage is admissible, to
annex incidents to written contracts in matters
in respect to which they are silent.

Button V. Warren, 1 Mees. & W. , 475.

Hence, an established custom may add to a
contract stipulation not contained in it, on the
ground that the parties may be supposed to
have had these stipulations in their minds, as a
part of their agreement, when they put upon
paper or expressed in words the other part
of it.

2 Pars. Cont. , 49, and cases in note z ; Ben-
ner v. Bank of Columbia, 9 Wheat., 581 ; Bank
of Washington v. TripleU, 1 Pet. 25; Syers v.
Jonas, 2 Welsh., H. &G., Ill; Queen v. Inhab,
of Stoke upon Trent, 5 Ad. & E., N. 8.. 808.

Where the agreement between the parties is
one and entire, and only a part of this is re
duced to writing, it would seem that the resi.

685

49-66

SUFKBKB COUBT OF TSB UhTTBD StATBB.

Dbc. TmM»

due of the contract, though not resting on
usage, may be proved by extrinsic evidence;
and this even where the residue of the con-
tract, resting in parol, may operate when dis-
closed, to put the legal rights and responsibili-
ties of the parties in reference to the subject
matter of the contract, in a different position
from that in which the written part of it places
them.

2 Pars. Cont., 65; Jefferyy. Walton, 1 Stark.,
267 ; 2 £Dg. C. L. , 885 ; Knapp v. Harden, 6 Car.
& P.. 745; 25 Eng. C. L.. 680; 1 Greenl. Ev.,
sec. 804; Ooates v. Sangston, 5 Md., 181.

5. Bell, being the general agent in Baltimore
of the defendants in error, for the sale and pur-
chase of flour for him, had authority to make a
** time '* subjject to the call for a " margin,'' so
as to bind his principal. That the principal in
New York, in authorizing his Baltimore agent
to sell flour for him generally on " time" con-
tracts in the latter market, was bound by the
usages of the *' time" flour trade in that mar-
k(*t is oIaai*

BMoek y' Stables, 12 Q. B., N. S., 765; Sut-
ton V. Tatham, 10 Q. B., 27; Bayliffey. But-
t&rv)orth, 1 Welsh., S. & G., 425.

The principal cannot defend himself on the
ground that he did not know of the general
or special usage.

Story, Ag., sees. 60, 96; Bank of ^atJUngton
V. TrwUU, 1 Pet.. 84.

6. The instruction fl;iven by the court below
had the effect of withdrawing from the lury
all the evidence showing that the credit ^ven
in the transaction was to the agent, Bell, exclu-
sively.

The rule laid down by Story as a presump-
tion of law is, that ** a foreign factor buying or
selllne goods, is ordinarily treated, as between
himself and the other party", as the sole con-
tracting party; and the real principal cannot
sue or 6e sued on the contract."

Story, Ag., sec. 423; see, also, more espe-
cially sees. 268, 290, and 400.

This IB the established English doctrine.

Russ. Fact. & Bro. , 288 ; 2 Liv. Ag. . 249 ; PM-
arson v. Oandcuequi, 15 East, 62; Addison v.
Oandasequi, 4 Taunt. . 574 ; Thomson v. Daven-
port, 9 Barn. & C, 78; Smyth v. Anderson, 7
Man., Gr. & S., 21, 62 Eng. C. L.

The rule, as stated by Story in the four sec-
tions above quoted, has never been directly
questioned in this country, except in one case
(Kirkpatriek v. Stainer, 22 Wend., 244). and
then by a divided court.

It is reaflSrmed by him (and in that case exam-
ined) in note 1 to sec. 268, 5th edition of 1857,
Story, Ag., and has been adopted in McKen-
ne V. Netius, 22 Me., 148; Alcoek v. Hopkins,
6 Cush.,490; Merrick's Estate, 5 Watts c&S., 14.

It is, however, an open question whether the
rule extends to the different States of the Union,
as jurisdictions foreign to each other. There
are dicta in 22 Wend., above referred to, to the
effect that it does not. But the point has never
been expressly made and decided in that way.

On the contrary, in Neu>casUe Jf. Co. v. Bed
BieerB,B., 1 Itob. La., 145, it was directly
held that it did apply to the different States as
a reasonable presumption; and this would seem
to be the true doctrine.

The term used in the books is principals
" beyond seas;" and in construing these words

in Acts of Limitation, they are held to refer to
other States of this Union.

And so bills of exchange are foreign biUs
when drawn by a party in one stste upon one
in another State. Story, Bills, sees. 22 and 28;
Buekner v. Finley, 2 Pet. , 586.

So. both Scotland and Ireland are foreign to
England for the purposes of this rule.

This rule, in the absence of any evidence on
the question "to whom credit was given,"
creates a conclusive presumption of exclusive
credit to the agent. It is of course liable to be
rebutted, but the onus is on the principal In
this case there is nothing to remove the weight
of presumption. On the contrary, the proof is
all the other way.

The absconding, of itself, was a virtual aban-
donment of the contract by Bell.

Boper V. Coombes, 6 Bam. & C, 584; IHa/nekt
V. CoUmm, 8 Bing., 14; Keys v. Harvoood, 2
Com. B., 905; Dubois v. Delaware Can. Co.,
4 Wend., 285.

If it did not give an absolute right to the
other party to treat the contract as rescinded.
it, together with the insolvency, reasonably en-
titled him to ask for security for its perform-
ance.

In every contract of purchase and sale,80 long
as it is executory and the rights (»f Uiird par-
ties do not intervene, the insolvency of either
party (j^ualifles his rights, and adds to the ordi-
nary nghts and remedies of the other.

See/Smi^ V. Bowles,2^ip., 578;1 Pars. Cont..
2d ed. , 447 ; Story, Sales, sec. 821 ; Sands v. Tay-
lor, 5 Johns., 895; Oirard v. Taggart, 5 Serg.
& R., 84; Vargas v. NevohaU, 15 Me., 817.

Messrs. Oeor^ Willlaim Brown and F.
W. Bmne* Jr., for defendant in error:

The defendant in error contends:

Firat. The evidence is not sufficient to estab-
lish a general usage in Baltimore, hj which
either part^ to a contract to deliver flour at a
future day is entitled to demand a margin or a
security of the other.

Second. Such usage, if proved, would not
be valid and binding, because,

(a) It is not reasonable and certain. It opens
the door to fraud and deception, and offers fa-
cilities to parties to escape from contracts which
appear likely to occasion loss.

{f>) The usage is not generally known in Bal-*
timore.

ifi) Usage may explain the meaning of terms
terms, but cannot avail to contradict or vary a
written contract To permit it to do so, would
be in violation of a settled rule of evidence and
of the Statute of Frauds.

Third. If the conversation with reference to
the usage is of any avail at all, it can only bind
Bell personally, and was intended only to
do so.

Fourth. The testimony of Ballard would be
inadmissible to show the usage of Bell in ref-
erence to his own contracts, in a case like this,
where it would vary or contradict a written
contract ; but it certainly cannot bind the plaint-
iff, who does not appear to have had any knowl-
edge of notice thereof.

Fifth. Even if the usage be proved, and be
good in law, and binding on Uie plaintiffs, the
defendants cannot avail themselves of it, be-
cause the margin was expresslv claimed on \ht
ground of contract, and not or usage.

64 r.s

18{».

Oblbicks y. Ford.

49-65

Sixth. Because the notice was not addressed
by Bailard to the plaintiffs in New York, but
was directed to Bell in Baltimore, and sent to
his counting-room after he had disappeared.

Seventh. Bell was not the plainti£F*s agent
for the purpose of receiving any such notice:
and even ii he were, a notice addressed to an
absconding agent and sent to his counting
room and so sent, in fact, because the agent
was known to have disappeared, is not suffi-
cient to bind the principal. Good faith and
fair dealing require that the notice should have
been sent to the plaintiff in New York.

£ighth. But the notice did not give the plaint-
iff reasonable time to comply, even if it had
been communicated to him by telegraph, which
it was not It was left at Bell's counting-room
before 13 M. on the 21st., and gave notice to
deposit $5,000 in the Merchants" Bank of Bal-
timore on the following day.

Ninth. The defendants did not comply with
their own notice — they state that on the 22d,
they would deposit $5,000 in the Merchant'
Bank, and required Bell to do the same; but
they made no such deposit, and therefore, under
no circumstanoes,could the plaintiff be required
to do so.

Tenth. The defendants had no right to re-
quire the arbitrarv sum of $5,000 in cash, on a
contract on which, at the time of the demand,
they were in fact losers; and therefore no se-
curity at all was necessary.

Bleventh. Nor had the defendants the right
to select the place of deposit, under penalty of
a cancellation of the contract.

Twelfth. Nor had Ballard, the broker who
made the contract, any right to give a notice
to put up a maigin.

Tiiirteenth. The instructions of the court are
correct and cover the whole case. Jhe rule of
damages as laid down is sustained both by rea-
son and authority.

Fourteenth. Ford is principal, and has a
right to sue.

Qfwn V. Kopke, 86 £ng. L. & K, 896; Ma-
honey v. Kekule, 14 C. B.. 890: Kirkpatriek v.
8Unn&r, 22 Wend., 244; Taintarv, Prendergasi,
3 Hill 72; 8 Rob. Pr., 57; 2 Kent's Com., 8th
ed.. 680, marg., 818.

The following authorities are relied on to es-
tablish the proiK)sition that the written contract
cannot be varied or contradicted by the proof of
uaage: that the alleged usage is not properly
proved; and if prov^, is not valid.

U, 8, V. Buchanan.B How., 88, 102; Adams v.
OUerbaek, 15 How., 545; BrUtan v. Bcnfiahy,
62 U. S. (21 How.), 588; Fbley v. Mason, 6
Md., 50; 1 Greenl. Ev., sees. 275, 278, 281, 284,
288, 292-294; Goxe v. Beisley, 19 Pa. St.. 247;
Maey v. Insurance Co., 9 Met., 863; Bowen
V. aunidard, 10 Met. 381; Adams v. Wordley,
1 Mees. & W.. 874; Mages v. Atkinson, 2 Mees.
«& W.. 442; Tru&man v. LodtT, 11 Adol. & £.,
596; AUm v. Dykers, 8 Hill, 597; Uinton v.
Locke, 5 Hill, 437; Gross y. Oriss, 8 Grat, 262;
Maecmber v. Parker, 18 Pick., 182; Hona v.
Mutual Ins, Co., 1 Sandf., \91\ Barlow v. Lam-
bert, 28 Ala.. 710; 1 Sm Lead. Cas., 807-
809. margin; 8 Cranch, 81 ; 1 Met.. 199; 4 Mees.
& W.. 1&; Bourns v. QaUiff, 11 Clark & F.,
45, 70; F(yrd v. Yates, 2 Man. & G., 549;
Browne, St Frauds, 116, sees. 118, 448, 451; 2
Pars. Cont., 59.

8ee28How.

The contract is valid, and the rule of dam-
ages is properly laid down by the court.

2 Pars. Cont., 485; McNaughter v. CassaUy,
4 McLean. 580; Btanttm v. 8maU, 8 Sand., 280;
BibblewMte v. McMorive, 5 Mees. & W., 462;
Mortimer v. McCaUan, 6 Mees. & w., 58.

The notice in this case was not sufficient

1 Pars. Cont., 64; Story, Ag.. sees. 28, 29,
80. 140, 246; Bank of U. 8. v. Dams, 2 Hill.
451 ; Graddon v. Price, 2 Car. &P.. 610; Fulton
Banky. N. T. & 8. Canal Co., 4 Paige. 128;
Willis V. Bank, 4 AdoL & E.. 89; Harper v.
Hampton, 1 Harr. & J., 715; Dunlap's Paley,
Ag.. 187;Rus8. Fact, 814. 815; Osbomv. Bank
of U. S., 9 Wheat, 830; 4 How., 836; 9 How.,
552; 11 How., 222.

Mr. Justice Nelson delivered the opinion of
the court:

This is a writ of error to the Circuit Court
of the United States for the District of Mary-
land.

The suit was brought by Ford against the
defendants in the court below upon the follow-
ing contract:

Baltimore, November 7, 1865.

For and in consideration of one dollar, the
receipt whereof is hereby acknowledged, I have
this day purchased from J. W. Bell, agent for
Benjamin Ford, New York, for account of Oel-
ricks & Lurman, Baltimore, ten thousand bar-
rels superfine Howard Street or Ohio flour,
deliverable, at seller's option, in lots of five hun-
dred barrels, each lot subject to three days^
notice of delivery, and payable on delivery, at
the rate of nine dollars and twenty-five centa
per barrel, viz. :

2f000 barrels, seller's option, aU December, 1865.
4,000 " " " January, 18M.

4,000 " '* " February, 1856.

10,000
Approved:

L. E. BaIiULRD, Broker.

OeLBICKS & LURMAK.

The 3.000 barrels deliverable in December
were delivered, accepted, and paid for, as per
contract. The 4,000 barrels to be delivered in
each of the months of January and February
were duly tendered to the defendants and pay-
ments demanded, and whieh were refused.

The only objection to the acceptance of the
fiour at the time tendered was the refusal of
Ford to a demand made upon his agent to de-
po8it $5,000 in one of the banks in Baltimore
to secure the punctual delivery of the flour at
the time mentioned. This demand for a de-
posit of money was denied by the plaintiff, on
the ground that the contract contained no such
stipulation.

After much testimony given by both parties
on the trial, on the subject of a usage among
the dealers in flour in the City of Baltimore to
demand on time contracts a deposit of money
(or margin, as it is called), and the right to re-
scind the contract if refused, the court charged
the jury, Uiat if they shall find, from the evi-
dence, the defendants entered into the contract
givcQ in evidence, and that the plaintiff offered
to deliver the flour therein mentioned according
to its terms, and that when the offer was made
he had the requisite quantity of flour to com-
ply with the contract, and could have delivered
it if the defendants had been willing to receive

49-65

SoFBBMS Court op thb United States.

Dec. Tkbit.

it, and that they had refused, then the plaintiff
was entitled to recover. The court further in-
structed the jury, that the rule of damages was
the difference between the contract price of the
flour and the market value in the City of Bal-
timore on the several days of the tenders, with
interest on this sum, in the discretion of the
jury. The jury found for the plaintiff.

One of the principal prounda of objection to
the ruling of the court is, its refusal to submit
the question of usage, which was the subject of
evidence on the trial, to the jury.

The witnesses, introduced by the defendants
to prove the usage, speak in a very qualified
manner as to its existence, as well as to the in-
stances in which thev have known it to have
been cdopted or acquiesced in; and all of them
admit they have no knowledge that it was gen-
eral among the dealers. Some of them state
that they reco^ized and had acted upon a
custom in their own business, under which
either party to the contract might require a
margin to a reasonable amount, to be put up to
secure the performance, and that the contract
might be rescinded if the party refused ; that
they could not say such was the general custom ;
that different persons have different customs;
some consider there is such a usage, and some
do not. One witness states that he had, at all
times in his business, considered it to be a right
which might be exercised by either party to a
time contract, whenever he apprehended a
risk; that if the party was solvent, he supposed
there was no right to demand it; another, that
in his business he had always considered such
contracts to be subject to the right of either
party to demand the margin ; that the occasion
of exercising it was rare, as contracts made by
his house were made with responsible persons;
that he did not know that this was a general
usage in Baltimore. The broker who negotiated
the contract for the defendants states that he
considered it a clearly understood right of both
parties to such contracts to demand a margin to
a reasonable amount: that he entertained the be
lief, from conversations with various merchants
on the subject; that he recollected but one in-
stance where, when the demand was made, the
margin was put up, which was a margin of
twenty-five cents on the barrel in a contract for
500 barrels.

There were ten witnesses, fiour merchants for
many years in the city, who state that they
knew of no such usage.

It will thus be seen, from a cai'eful analysis
of the evidence, that Uie defendants wholly
failed to prove any general or established usage
or custom of the trade in Baltimore, as claimed
in the defense. Every witness called on their
behalf fails to prove facts essential to make out
the custom in the sense of the law ; on the con-
trary, most of I hem expressly disprove it
They express opinions upon the subject of a
margin as a right to be exercised in their own
business, but admit that it is not founded upon
any general usage; and none of them speak of
its having been claimed or exercised in iiis own
business but in one or two instances. Whether
a usage or custom of the kind set up existed in
the trade in Baltimore, was a question of fact
to be proved by persons who had a knowledge
of it from dealing in the article of flour. Opin-
ions of persons, as to what rights they might

688

exercise in their own business in respect to time
contracts, fall far short of any legal proof of the
fact, especially when they admit that there was
no general usage of the kind known to them.
Then, as to the precise limit or character of
the custom claimed, the opinions of the wit-
nesses are various and indefinite. The mar^rin ,
they say, must be reasonable, but the pretended
usage contains no rule by which a reasonable
margin may be determined. It is said the
amount may be referred to merchants. But
there is no evidence that this is a part of the
custom, or that any such mode of adliuting it
ever occurred in the trade. Some of the wit-
nesses state, that the margin must be a sum of
money sufficient to make Uie party safe accord-
ing to the state of the market. One states that,
at the time the demand was made in this case
for a margin, flour had fallen, and the price
lower than the price in the contract; yet thw, in
his judgment, did not affect the ri^ht to make
the demand, as the general opinion amoag
dealers was, that the pnce would advance; that
there were great fluctuations in the price, and
that, in such a condition of things, a reasonable
margin would depend upon the extent and
character of the fluctuations, and upon the
speculative ideas of the future value of flour.

The broker of the defendants, who purchased
this flour, states his view of the reasonableness
of the mar^n, which is the difference between
the intrinsic value of the flour and its specula-
tive value; by intrinsic value, he says he means
the cost of the production ; and by speculative
value, th% price at which it was rating above
its intrinsic value; and to a question what, in
his opinion, would be a reasonable margin un-
der the custom, when flour in the market was
lower than the contract price, he answered
that he considered the demand reasonable in
this case, because he believed flour was going up
to $12 per barrel. It would be difilcult to de-
scribe a custom more indeflnite and unsettled.

But, independently of the total insufficiency
of the evidence to establish the usage, we are
satisfied, if it existed, the proof would have
been inadmissible to affect the construction of
the contract. This proof is admissible in the
absence of express stipulations, or where the
meaning of the parties is uncertain upon the
language used, and where the usage of the trade
to which the contract relates, or with reference
to which it wa9 made, may afford explanation,
and supply deficiencies in the instrument.
Technical, local, or doubtful words may be thus^
explained. So, where stipulations in the con-
tract refer to matters outside of the instrument,
parol proof of extraneous facts may be neces-
sary to interpret their meaning. Ab a general
rule, there must be ambiguity or uncertainty
upon the face of the written instrument, arinng
out of the terms used by the parties, in order to
justify the extraneous evidence, and when ad-
missible, it must be limited in its effect to the
clearing up of the obscurity. It is not admis-
sible to add to or engraft upon the contract new
stipulations, nor to contradict those which are
plain. 2 Kent's Com., 556; 8 lb,, 260, and note;
1 Greenl. Ev., sec. 295; 2 Cromp. & J., 249, 250;
14 How., 445.

Applying these principles to the contract be-
fore us, it is quite clear that the proof of the
usage attempted to be established was inadmis-

1859.

Adams v. Nobris.

858-868

«ible, and should have been rejected. There
is no ambiguity or uncertainty in its terms or
stipulations, and the condition sought to be an-
nexed was not by way of explanation or inter-
pretation, but in addition to the contract. The
p]ainti£F agrees to deliver a given number of
barrels of flour on certain days, at the price of
$9.25 per barrel, in consideration of which the
defendants asree to receive the flour, and pay
the price. This is the substance of the written
contract. But the defendants insist, that besides
the obligations arising out of the written in
strument. the plaintiff is under an additional
obligation to ^ive security, whenever called up-
on, for the faithful performance: and this, by
the deposit in bahk of the suni of $5,000. The
written instrument bound only the personal re-
eponstbility of the plaintiff; the parol evidence
seeks to superadd, not a responsible name, as a
auroty, but, in effect, the same thing, a given
sum of money. The parol proof not only adds
to the written instrument, but is repugnant to
the legal effect of it.

It was also urged on the argument that this
contract was entered into between the defend-
ants and the agent of the plaintiff, with the un-
derstanding at the time that it should be subject
to the usage; but the answer to this is, that no
such usage existed; and if it did, the terms of
the contract exclude it. Any conversations and
verbal understandinf^ between the parties at the
time were merja^ed m the contract, and parol
evidence inadmissible to engraft them upon it.

We are satisfled the court oelow wa«i nght in
excluding Uie consideration of the evidence of
the usage from the jury: 1, because the usage
was not proved; and 2, if it had been, it was in-
competent to vary the clear and positive terms
of the instrument.

An objection has been taken on the argu-
ment, which was not presented to the court be
low, but which, it is insisted, is involved in the
-exception to the charge; and that is, inasmuch
as it appears upon the evidence that the plaint-
iff was a resident of New York, and the con-
tract made at Baltimore, in the State of Mary-
land, by an agent, the presumption of law is
that the credit was given exclusively to the
agent, the principal being the resident of a for-
eign state; and hence, that the contract, in
le^ effect, was made with the agent, and not
with the principal, and the former should have
brought the suit.

This doctrine is laid down by Judge Story in
his work on A^ncy, and which was supposed
to be the doctrine of the English courts at the
time, and founded upon adjudged cases. Story,
Ag., sec. 288. and note; sees. 290, 423. It
did not, however, at the time, receive the as-
sent of some of the courts and jurists of this
country. 2 Kent's Com., pp. 680, 68t, and note;
22 Wend., 224; 8 Hill. 72. And the doctrine
has recently been explained, and Judge Story's
rule rejected by the English courts. In the case
of Qreen v. Kopke, 86 £ng. L. & Eq., 896. 899,
1856, the court denied that there was any dis-
tinction, as it respected the personal liability of
the a^ent, whether the principal was English
or a loreigner. The Gkitf JusUoe observed :
'* It is in all cases a question of intention from
the contract, explained by the surrounding cir-
cumstances, such as the custom or usage of the
trade when such exists. No usage," he observes,

flee 88 How.

" was proved in the present case, and I believe
none could have been proved." Again, he ob-
served: ''It would be ridiculous to suppose that
an agent, for a commission ot one half per cent. ,
is to guaranty the performance of a contract
for the shipment of 1,000 barrels of tar." The
case was Anally put upon the intent of the par-
ties, as derived from the construction of the
contract, and which was, that the defendant
contracted only as agent, and not to make him-
self personally liable. Willes, J., doubted if
evidence of custom was admissible to qualify
the express words of the contract, so as to make
the agent liable.

See, also, 14 Com. B., p. 890; Mdhony v.
KekuU, 5 El. & B.. pp. 125, 180.

In the present case, the broker's note, and
which is approved by the defendants, affixing
the flrm name, is too clear upon the face of it
to admit of doubt as to the person with whom
the contract was made. The purchase is from
"J. W. Bell, agent for Benjamin Ford, of New
York," and the case shows that Bell had full
authority. The name of the principal is dis-
closed in the contract, and the place of iiis res-
idence, as the person making the sale of the
flour, through his agent. This fixes the duty
of performances upon him, and exonerates the
agent.

ThejudgmmU of the court below , affirmed.

Cited--6 Wall., 704; 10 WaU., 667; U WalL. 408; a
OUff ., 819.

EDWIN G. ADAMS. Ptff, in Bh'.,

SAMUEL NORRIS.

(See 8. C, 28 How., 858-868.)

Mexican mil — probate not neeesaary to admU om
evidence— w?uU execution of, wxlvi — evidence of
custom OR to when competent and prevailing —
instruclioM to jury — declarations of testator —
question for jury.

Mexican will, not iDadmissible as testimony, be-
oaiise It had never been admitted to probate, and be-
cause the witnesses that were preseat at its exeou-
tlon had never been examined to establish It as an
authentic act.

Is not nuU.because It does not appear on the faoe
of the will that the wltneitses were present during
the whole time of the execution of the will, and
heard and understood the dispositions it contained.

Such testaments are not required to make full
proof of themselves ; and the observance of for-
malities, which do not appear on the face of the
will, may be shown by testimony dehors the instru-
ment,

Bvidenoo of a custom in California, as to the man-
ner of malcing wills, was competent.

And if it became prevailinff and notorious, so as
that the assent of the public authorities may be
presumed, upon principles existing in the Juris-
prudence of Spain and Mejdco, the acts of indi-
viduals, in accordance to it, are iegritlmare.

The instruction to the jury, that the testator and
witnesses should alike hear and understand the tes-
tament, and that, under these conditions, its publi-
cation as the will of the testator should bo made,
embraced all that was necessary.

Proof of the signatures of the deceased witnesses
and of the testator, and of a declaration by him
that he had made a will with a similar devise, was
competent.

It was a proper question to be submitted to the

Note.— ITHOife and custom; admiMibaity o/, in con-
struetUm of contracts. See note to Adams v. Otter-
baoh, 56 U. S. (16 How.), 689

ftt»

86a-«68

S€FBBMB Court of the United Btatss.

Dae. Tbbic,

iury, whether under the drcumetanoee of the ease.
It was probable the formalities required by the law
were complied with.

Argued Apr, 17, 1860. Decided Apr, SO, I860,

F ERROR to the Circuit Court of the Unit-
ed States for the Districts of California.

This was an action of ejectment brought in
the court below, by the pluntiff in error, to re-
cover seven eighths of iXierancho ** Del Passo,"
granted on Dec. 20, 1844, by Governor Michel-
torena to Eliab Grimes.

The plaintiff claimed as heir at law of said
Grimes. Defendant claimed under his devisee
by codicil.

The trial resulted in a verdict and Judgment
in favor of the defendant ; whereupon the plaint-
iff sued out this writ of error.

A further statement of tbe case appears in
the opinion of the court.

Messrs. C. CuBhing, J. P. Benjamin, R.
H. CUllet* L. Janin and E. L. Ooold« for

plaintiff in error:

We assume that it is the Hispano-Mezican
law in force in Mexican California.

The rule of public law is general, that the
validity of a devise of real estate depends on
the lex loci.

2 Kent's Com., p. 518; Faeliz. Droit Int.
Pr.. 8d ed., liv. 2, tit. II., ch. l;Enni8v.8imth,
14 How., 400; ttto. Confl. L. sec. 474; Per-
kins' Jarm.p Wills, 1.

If the Question were affected by the considera-
tion of domicil or citizenship, or of locus rei
aetae, the result would be the same here: for if
a will, it was a will made in Mexican Califor-
nia, by a Mexican Califomian, there domiciled,
and of land situated in Mexican California.

Hence the legal questions involved are to be
judged by the Hispano-Mexican law, subject
to no other oualiflcation, if any, than construc-
lion of that law by the state courts of Ameri-
can California.

The Hispano-Mexican law, regarding the ex-
ecution of wills, is found in Pandectas Hispano-
Mejicanas, Vol XL. p. 004, No. 8290, 8291;
Novisima Recopilacion, 1. 1 and 2, tit. 18, lib.
10; Recopilacion, 1. 1 and 2, tit. 6, lib. 6; Leyes
de Toro, No. 8, amending the Ordenamiento
de Alcala.

All these legislative i)rovi8ions are to the
same effect, so far as pertinent here, and with
the commentaries of the received legal exposit-
ors, are assumed to be the law of the subject-
matter.

Suggestion occurs, however, in a late case,
that of Tevis v. Pitcher, hereinafter cited, 10
Cal. , 465, thai although the construction of the
devise is so subject to the Hispano-Mexican, yet
the proof of the will is not, but depends on the
common law of the United States — that is to
say, English law, whether common, equity,
ecclesiastical, constitutinff together the basis of
the unwritten municipal law of the common
law states.

And on these premises, the court in that case
proceeds to infer that to establish it, there is need
only to prove the handwriting of the signers.

We 00 not admit the applicability or the
soundness of these legal sugg^tions.

Messrs. E. M. StaAton, neTerdy John-
son and Edmund Randolph* for defend-
ant in error:

1 . The testamentary instrument under whfch

the defendant claims, belongs to the class
known as open wills, which took effect as a
deed at the death of the testator, previous to
the establishment of the present State Grovem-
ment of California, and u not required by the
laws of the state to be probated.

QHmes' Estate v. Mrris, 6 Cal., 831 ; Casir^
V. Castro, 6 Cal., 158; Panaud v. Jones, 1 Cal..
508; Tern v. PUeker, 10 CaL, 465.

2. Under the Mexican law, three witnesses
to an open or unsealed will, without an esori-
bono or alcalde, were all that were required;
and under the custom existing in Caufomia
prior to the establishment of the state govern-
ment, two were sufficient.

Panaud v. Jones, 1 Cal., 504; Oaetro v. Cas-
tro, 6 Cal.. 158; Tevis v. PUefier, 10 Cal.. 465.

8. Custom may be proven, and when proven
has the effect of law.-

Panaud v. Jones; Castro v. Castro, above
cited; Von Sehmidt v. Huntington, 1 Cal.^ 55;
Tem& V. Pitcher, 10 Cal., 466.

4. A usage or custom once recognized by
judicial decision, becomes the law of the lan<l
and no further proof is necessary to establish
it, and no evidence is admissible to contradict
the fact as laid down by the court.

Cookendorfer v. Preeton, 4 How., 826; Edie
V. East India Co., 2 Burr.. 1221 ; Pt>sten v. Ba»-
sette, 5 Cal., 468; Tens v. Pitcher, 10 Cal., 465.

5. The rule of evidence is the law of the
forum, and such law must prevail in all judicial
proceedings.

Story. Confl. L., sec., 258, 2,fioteand author-
ities cited; Bank U. 8. v. i>tmfui%, 8Pet..S61,
878; Lewis v. San AtUonio, 7 Tex., 308; Terns
V. Pitcher, 10 Cal. . 465.

6. The witnesses being all dead, the will is
to be proved by proving the handwriting of all
the subscribers to it.

Price V. Brown, 1 Brad., 291, and authorities
there cited; Jawncey v. Thorn, 2 Barb. Cb., 38;
PeebUs v. Case,2 Brad., 226; Matt., Pres. £v.,42;
Hands v. James, 2 Com., 581; Brice v. &nith,
Willes, 1; Oroft v. POwlet, 2 Str.. 1109; Tenisv.
Pitcher, 10 Cal.. 465.

7. The will in this case has three competent
attesting witnesses — ^the number required even
by the strict rules of the Mexican law.

Panaud v. Jones, 1 Cal.. 504; Tevis v. PUck-
er, 10 CaU, 465.

8. By custom, as established by proof in this
case, and by judicial decision in the case of
Panaud v. Jones, Castro v. Castro, and Tens ▼.
PUeher, two witnesses are sufficient, and the
will is good.

9. Upon proof of the signatures, the wit-
nesses l^ing all dead, the presumption of law
arises, that all the formalities essential to the
due execution of the will were complied with.

Price V. Brown, 1 Brad., 291; Jauneeg v.
7^m, 2Barb. Ch., 40; FeeblesY. Case, 2 Brad..
129; Tevis Y. Pitcher, 10 Cal., 465.

And presumptions are to be liberally in-
dulged in favor of the due execution of wills,
when, from lapse of time or other circumstances.
it may be difficult to prove the facts directly.

Jauncey v. Thorn, cited above.

10. The admissions of the testator were ad-
missible as rebutting evidence.

1 Phil. Ev., 189; 1 Moody & Rob., 525; 1
Phillim., 447; 1 Hawks' Law & £q.» 268; 12
Pet., 151.

1859.

Adamb t. Nobrib.

888-868

Mr, JuiUoe Campbell delivered the opinion
of the court:

The plaintiff claimed, as the assifrnee of
heirs at law of Eliab Grimes, deceased, the
title and possession of an undivided seven
eighths of a parcel of land in Sacramento
County known as the rancho del Paso, contain-
ingten square leagues, being the land granted
to Eliab Grimes by Micheltorena, Gk>vemor of
California, the 20lh December, 1844. The de-
fendant i-esisted the claim as the assignee of
Hiram Grimes, who is a devisee of the land
by a codicil to the last will of EUab Grimes,
which is in the Spanish language, and of which
the following is a translation :

"SRAL FIB8T — EIGHT DOLLARS.

Provisionally empowered bv the maritime
custom-house of the port of Monterey, in the
Department of the Californias, for years eight-
een hundred and forty-four and eighteen hun-
dred and forty-five.

Pablo Dk La Gubrra.

MiCHBLTORBNA.

[bkal.]

I, Eliab Grimes, a Mexican citizen by natu-
ralization, having to add a codicil to mv testa-
ment heretofore made, and desirous of doing it
in conformity with law established in this re-
public, do make and declare it to be of my
will and intention, in presence of the alcalde
of this jurisdiction, his secretary, and two wit-
nesaes of assistance, as follows:

Codicil 2d. I give and bestow to Hiram
Orimes, my nephew, all the right and title
which the government concedes to me to the
rancho known (or named) as the * rancho del
Paso,' in Upper California, situated on the
American River, as is delineated and appears
in the plan and title, the original of which ex-
ists in the public archives of Monterey, to-
other with all the cattle, horses, and other ani-
mals, that are on said rancho, as also all the
buildings and laboring and cooking utensils,
and all other property of mine which is met
with on said rancho, deducting always a cer-
tain portion of all the cattle, horses, and other
animals, and of their produce, for those who
have had the care of said rancho, in payment
of their services, according to the agreement
made.

And in order that it may be evident, I sign
in the manner above expressed this l8th day of
April, 1245, at the pueblo of iiian Francisco de
Asis, and at the same time there remains de-
posited a copy in the archives of the same.

Eliab Grimbb.

Before me, in the absence of the two al-
caldes.

Robbrto T. Ridlby, dindieo.

WitneBses:

Nathan Spbar.

GUILLBRUO HmCKLBT."

The verdict and judgment in the circuit
<»urt were in favor of the defendant: and the
cause is presented to this court upon excep-
tions to decisions of the presiding Judge in the
coarse of the trial.

The defendant, to sustain the codicil, estab-
lished, by the admission of the plaintiff, the
geatdneness of the signatures of the testator
and of the witnesses to the codicil, and that
they w^re all dead, the testator having died in
1848. He also adduced the testimony of a num

flee 88 How.

her of witnesses to prove the existence of a cus-
tom in California as to the mode of making
wills prior to any change In the Mexican law
by the state government, and that Grimes,
shortly before nis death, had informed a wit-
ness that he had devised his place of del Paso,
with the stock on it, to Hiram Grimes, his
nephew, and desired of him some aid for hii
nephew in the settlement of his affairs. No
other testimony is reported in the bill of excep-
tions. It was contended, on behalf of the plaint-
iff, that the codicil was not competent as evi-
dence, nor sufficient to transfer property.

1. That the codicil had never been admitted
to probate in California, and that the proof of
the signatures to the codicil was not sufficient
to establish its validity.

2. That there is no statement in the paper
itself tending to show that the disposition was
dictated by the testator in presence of the wit-
nesses, or read over to the witnesses in the
presence and hearing of the testator, they being
present at one and the same time, without in-
terruption or turning aside to any other act,
and having been so dictated, or so read over,
was declared by the testator to the witnesses to
be his last will and testament.

8. That three witnesses of assistance are neces-
sary to the validity of a will, and that the eindico,
not having professed to act as a witness, and
being without authority to receive wills in that
capacity, the codicil is void for want of the
sufficient number of witnesses, and that this
deficiency could not be cured by proof of any
custom at variance with the written law.

The court did not support these objections,
but instructed the jury that a will, executed un-
der the Mexican laws, in presence of only two
witnesses, affords no suffident proof of the ex-
ecution. But if they should be satisfied, from
the proofs in this case, that a uniform and no-
torious custom existed uninterruptedly for the
space of ten years in California, which author-
ized the execution of wills in the presence of
two witnesses only, and which custom was so
prevailing and notorious that the tacit assent
to it, of the authorities, may be presumed, then
the proof of such a custom, and for such a
length or time, will operate a repeal of the
prior law, and that two witnesses will be suffi-
cient. On the contrary, if a custom of the char-
acter described and for the period mentioned
was not proved to their satisfaction in such
case, if three witnesses have not attested to the
codicil, it is a nullity.

The court further instructed the jury, that if,
from the evidence and under the instructions
given, thev should find three witnesses re-
quired, and they will inquire whether each and
all of the three witnesses to the will is or are
competent; that the will being written in
the Spanish language, if either of the witness-
es did not read or speak that language, and
could not understand the disposition of the
pro^^rty made by it, and that the testator was in
the same predicament, such witness would be
incompetent, and unless the custom was es-
tablished, the codicil would be null ; but if the
custom was established, that custom would
control the case; and if the signatures of the
testator and of a sufficient numoer of witnesses
is established, in the absence of countervailing
testimony, the jury may infer a due execution

1^41

958-868

SUPHEMS COUBT OF THS UmTKD StATBB.

Dbc. Tkrm,

of the will. This selection from some twenty
exceptions will suflBlciently present the ques-
lions that were considered in the circuit court
and have been discussed at the bar of this
court.

These instructions require an examination of
the law of California, previously to its organi-
zation as a State, relative to the execution of a
testament, and the modification of that law by
the revolution made in its legal system after
that event. The law of Spain was introduced
into Mexico, and forms the basis of its Juris-
prudence. By the laws of the Council of the
Indies, it was provided in all cases, transactions
and suits, which are not decided nor provided
by the laws contained in that compilation, nor
by the regulations, provisions, or ordinances,
enacted and unrepefJed concerning the Indies,
and by those which may be promulgated by
royal orders, the laws of the kingdom of Castile
shall be observed comformably to the law of
Toro, with respect as well to the substance, de-
termination and decision of causes, transactions,
suits, as to the form of proceeding. The Par-
tidas (6 part. tit. 1, 1. 1, 2) describes two kinds
of wills. " The one is that which is called, in
Latin, testamentum nuneupaUfmm.which means
a declaration openly made before seven wit-
nesses, by which the testator makes known, by
words or in writing, who the persons are whom
he institutes as his heirs, and the manner in
which he disposes of his other property. " This
form of will is of Roman origin, and can be
traced to the modes of testamentary disposition
employed in the time of the Republic. Origi-
nally the form was wholly nuncupative, but
the use of writing was allowable before the
tegtamentum in wnpUa was introduced.

The Part Idas proceeds to describe the other
form of will — "Uiat which is called, in Latin,
te»tamentum in seriptiiit which means a declara-
tion made in writing, and in no other way.
This will ouffht to be made before seven wit-
nesses, called at the instance of the testator for
that purpose. Each of the witnesses ought to
write his name at the end of the will ; and if
one of them should not know how to write,
either of the others may do it for him, at his
request. We also say that the testator ought
to write his name at tlie end of the will; and if
he should not know how, or could not write,
then another may do it for him, at his request."

The witnesses were formerly required to su-
perscribe and seal as well as sign the will. If
the testator desired to conceal the contents of
his will from witnesses, he could do so, either
by writing the will, or procuring it to be writ-
ten, and inclosing it in an envelope, and by
writing his name and causing the witnesses to
write their names on the envelope, with Uie dec-
laration that the paper contained the last will
and testament of the testator.

The essence of the te^tamsntum in seriptis
consists in the writing, and whether it was pub-
li^ed to the witnesses who subscribed anq at-
tested it, or was concealed from them, was not
a fact of any conseauence. But the writing
contained in the envelope was subject to no for-
mality. It might be written by the testator, or
by the hand of another. His signature to the
will itself was not required.

The announcement to the witnesses that it
was Ms will, and their attestation of that dec

448

laration, and the sufficiency of the seals, were
the only securities against forgery or fraud.
Other formalities were added, and a rigid ex-
action of those that were prescribed, rendered
this form of testamentary disposition onerous.
On the other hand, the nuncupative or oral will
was subject to the objections that the witnesses
might die, or fail to remember the declarations
of the testator, or misrepresent them. In the
process of time, the form of making a will or*
ally became unfreauent. The olographic will
and the mystic will served the purpose of those
who desired to conceal the disposition of their
property; while the written will, prepared by
a public officer, and attested by witnesses, was
the form commonly used on the continent of
Europe.

The last-named form, with a reduced number
of witnesses, was permitted in Spain by the law
of Toro. This testament might be made before
a notary public, but he was not indispensable.
If made before a notary public, there should be
three witnesses of the vicinage; but If there was
not a notary, five witnesses were necessary, un-
less they could not be had, in which event three
witnesses of the place, or seven strangers, would
be sufficient. 1 Tapia Febrero. 864.

The authentication of the will by the inter-
vention of judicial authority is also of Roman
origin.

£ivigny traces the changes in that adminis-
tration, and explains the manner in which this
system penetrated the jurisprudence of Europe:
1 Sav. hist, du droit Ro.,88; and the result, as it
affects the question under consideration, is clear-
ly ascertained in the writing of the civilians.
' Ricard says: *' It results from what has been
established, that the depositions of the seven
witnesses before the judge, when the nuncupa
tive will has not been drawn up in writing at
the time it was made, is in a manner of the es-
sence of the testament, since it could not have
effect without those depositions." » ♦ ♦
'* But in respect to those that were drawn up
in writing," he says, ** the opening and reading
that were made after the aeath of tbe testator
contributed nothing to the validity of the testa-
ment, and served only to verify the seals of the
witnesses, and to render the testament public.
We see, however, from laws of the title, in
what manner shall testaments be opened {auem
ad mob, tMtam, op&r.) in the Code and Digest,
that it was the ordinary practice for those who
were interested in the execution of the testa-
ment to apply to the pnetor, who obliged the
testamentary witnesses to come before him to
admit or deny their signatures and seals, and
of which he made a proees wrbtU; and that
this is the practice in the countries where the
Roman law prevails."

Ricard des don., 1825-1898.

The Mexican jurists agree that the written
testament from its form is not a public and au-
thentic act, and that it is necessaiy, to the full
enjoyment of their rights, that those interested
in the will should invest it with that quality.
Thev show that such a person may compel the
production of a will from private cusloaj, and
that the witnesses may be examined in reference
to all the circumstances relative to the execution
of the will, and the capacity and death of the
testator; and if it shall result from these that
the testament is legal, the judge may order it to

64 U. &

1W».

Adilhs y. NoB&is.

858-868

be protocoled, and it obtains the faith dae to
an authentic or public act. These writers de-
scribe the measures to be taken in case of the
death or absence of the witnesses, in order to
obtain the same result. 2 Sala Mex., 127, 128;
2 Curia Felip. MeJ., 827; 2 Febrero, Mej.. ch.
20, section 5.

We do not consider it necessary to inquire
whether the elevation of tliis writing to the
i^ade of an authentic act was a necessary con-
dition to the support of a suit upon it by an
heir or legatee in the ordinary tribunals in the
Department of California. We think it is clear
that the heir was not restrained from entering
upon the inheritance, by the fact that this was
not done; and that there are circumstances that
would have authorized the heir to maintain a
suit, even though the testament could not be
produced. The right exists independently of
that evidence. Merlin, verbo preuve. Gab. des
preuves, 868, 450. This testator died in 1848.
His devisee seems to have taken possession of
the property bequeathed to him. There is no
testimony of any action by the tribunals in Cal-
ifornia previous to the organization of the
state government. We know that the political
condition of California from the time of the
death of the testator until the or^nization of
that government was chaotic, and no inference
can be drawn from such an omission. Imme-
diately after the organization of that govern-
ment, the common law of England was intro-
duced, and the ancient legal system of the de-
partment abrogated. No provision was made
for the probate of wills that had been executed
before the introduction of that system. "The
Statute of the State," says the Supreme Court
of California, ** fails to require wills executed
before its passage to be probated;" and '* this
was not acoMM Smmus;" but " the Legislature
actually intended to exclude them from the op-
eration of the statute altogether, leaving their
validity to rest upon the laws under which they
were made."

Onmes v. Ifarris, 6 Cal., 621.

And in Castro v. Castro, 6 Cal., 158, they say,
that a will is regarded by the courts of England
and the United States as a conveyance, and
takes effect as a deed, on proof of its execu-
tion, unless there be some express statute re-
quiring it to be probated." Conceding, there-
fore, that, under the Mexican system, the pre-
liminary proof of the will before some public
authority was necessary togi^e it probative
force in a court of justice, that condition has
been altered by the statutes of California before
adverted to.

Our conclusion is, that the codicil was not
inadmissible as testimony, because it had never
\)een admitted to probate, and because the wit-
nesses trho were present at its execution had
never been examined to establish it as an au-
thentic act. The next inquiir will be, whether
the oodicil is null because it does not appear on
the face of the will that the witnesses were
present during the whole time of the execution
of the will, and heard and understood the dis-
positions it contained. The laws that prescribe
these formalities do not require that express
mention shall be made of their observance
under the penalty of the nullity of the testa-
ment.

In Bonne v. Powers, 8 Mart., N. S., 458, the

€ee 28 Bow.

question arose in Louisiana upon a will made
in 1799. before the change of government.

The Supreme Court say: " The Spanish law
did not require, as our code does, it should ap-
pear on the face of the instrument itself that idl
all the formalities necessary to give effect to a
will previous to the signature of tne testator and
the witnesses had been complied with.'* In
Sophiev, Duj^essis, 2 La. Ann. , 724, the Supreme
Court say: The principle invoked by the de-
fendants, that a will must exhibit upon its face
the evidence that all the formalities required
for its signature have been fulfilled, has no
application to nuncupative testaments under
private signatures. Such testaments are not
required to make full proof of themselves^ and
the observance of formalities which do not ap-
pear on the face of the will may be shown by
testimony dehors the instrum'^nt. Biec, in his
supplement to Esriche, reports the case of a
mystic will attached for nullity, because the
solemnities required for those of that class, Iq
the law of the Partidas, before cited, did not ap-
pear to have been followed. The supreme tri-
bunal of Justice in Spain sustained the will.
Sap. aL die. v. Testamento. And the same con-
clusion is maintained by the French jurists up-
on similar statutes. Merl. Bep. v. Testament.

In order to show that the codicil was valid
and translative of property, the defendant intro-
duced evidence of a custom in California as to
the manner of making wills, and the jury were-
instructed that the evidence was competent;,
and that, if the custom was so prevailing and
notorious that the tacit assent to it of the au-
thorities may be presumed, it will operate U>
repeal the prior law. The civilians state that
customs which are opposed to written law are
held to be invalid, unless they have been
specially confirmed by the supreme power of
the State, or have existed immemorially ; and it is
not material whether they consist in the non-
observance of the written law, or in the intro-
duction of principles or practices opposed to
such law; that every valid custom presupposes
a rule, observed as binding by the persons who
are subjected to it by an unbroken series of sim-
ilar acts; and that it belongs to the sound, legal
discretion and conscience of the tribunals to de-
termine by what testimony such a custom can
be established.

Lind's Study of Juris., 14, 17, and note.

The Spanish codes recognize these principles.
They say, to establish a custom, the whole or
greater part of the people ought to concur in
it; that ten years must have elapsed amongst
persons present, and twenty at least amongst
persons absent, in order to its being introduc^;
that it may be proved by two sentences of
judges or judgments given upon or according
to it; that, being general and immemorial, it
ma^ repeal or alter the anterior law, the appro-
bation of the prince being supposed or pre-
sumed.

De Asso & Rodri. Inst., ch. 1; 1 Febrero, 55.

The custom under consideration is one of a
general nature, and its existence for the period
must be assumed from the verdict of the jury.
It is a rule of property pervadhig in its applica-
tion, and necessary to be known in order that
judicial administration should be carried on.
The recognition of such a rule, if it exists, was,
therefore, to be looked for from the superior

54S

858-868

Supreme Court of the Unitbd States.

Dec. Teem.

and supreme tribunals of the State of California.
In the case of Panaud ▼. Jone^^ 1 Cal. , 497-505,
the Supreme Court say: " The custom with re-
spect to the execution of wills, so far as the tes-
timony goes, appears to have prevailed gener-
ally and for a lon^ time in California, it may
have been the universal practice from the first
settlement of the country." In Castro v. Cm-
tro, 6 Cal., 158, this observation is cited, and
the court say: " that it is shown from the tes-
timony of various witnesses, that two [witnesses
to a will] were sufficient under the customs of
California." The same fact is restated in the
case of Tens v. POeher, 10 Cal., 465.

Nor is such a change in the mode of transfer
of property a singular fact in the history of the
American States. Several cases are mentioned
in the opinion of the court in Panaud v. Janes,
above dted, and a similar instance is men-
tioned in Fowler v. Shearer, 7 Mass., 14.

Nor is the existence of such a departure from
the written law extraordinary, when the cir-
cumstances of the early history of the depart-
ment are understood. The most important of
the arrangements for the colonization of the
department related to the establishment of the
military districts and prendioe, and the mission
establishments in close proximity to them.
The priests and soldiers were the most con*
spicuous and influential members of the depart-
ment, and exerted supreme in its political and
economical arrangements. The Spanish laws
relieved the soldier from the inconvenient for-
malities that attended the execution of the or-
dinary nuncupative or closed testament, and
authorized himto make a nuncupative will be-
fore two witnesses, or an olographic will.

The canon law distinctly reprobates (prm-
eeriptam eofisuetudinem tmprobamus) the re-
quirement of seven or five witnesses for the tes-
tation of a will: **9eeundtim quod legee humanm
deeemunt;" ♦ • • ** quia vero a divina lege
et eanelorum Patrum instituHe et a generaU ec-
eleeia eoneuetudine id noecUur esee a&enum cum
tcripkim tit, in ore duorum vel irium tesHum tiet
omne verbum" Decret. Greg, lib. 8, tit. 26 ch..

10.

The precept and example of these dominant
classes in the department may possibly have
exerded a controlling influence in forming the
habitude of the population on this subject. And
if it became prevailing and notorious, so as that
the assent of the pubUc authorities may be pre
sumed, upon principles existing in the juris-
prudence of Spain and Mexico, the acts of in-
dividuals, in accordance to it, are legitimate.
This codicil was written in the Spanish lan-
guage; and it is to be inferred that there was
testimony that the testator and one or more of
the witnesses understood that language imper-
fectly.

The instructions of the circuit court required
the jury to find that the testator dictated the
contents of the codicil to the witnesses, they
being assembled at the same time, and that
it should be then read in the presence of
all, so that it was understood by all, and that
the testator should then have declared it to be
his last will; and the court informed them that
if the testator did not understand the language,
and there was not present any one who ex-
plained and interpreted the codicil in the pres-
ence and hearing and understanding of the

544

witnessed, the document was not a valid instm-
ment; and also, if neither the testator nor a suf-
ficient number of the witnesses understood the
lan^age of the codicil, and that it was not
valid.

The Roman law did not require the wit-
nesses to a Latin will to understand the Latin
language: ** nam si tel eeneu pereipiat quu, eui
rei adhibitue sit, euffleere." It is admitted b?
the civilians that a testator may dictate his will
in his own language, and the will maybe
drawn in another, provided that the witnesses
and notary understand both. The object of
the law is that the instrument shall express the
intentions of the testator, and it does not re-
quire the reproduction of his exact words.
Whether the witnesses should understand the
langu^ige of the will, has been the subject of
much contest amonff those writers; and names
of authority may be cited in favor of either
opinion. But the current of Judicial authority
seems to have decided it is not neoesfaary that
the witnesses to a testament should compre-
hend the language in which it is written ; and
the same authority has settled that the witnesses
should understand the langua^ of the testator.

16 Dalloz. jur. gen., titdispoei. entre vifs.
et test.. No. 8126.

8 Trop. don. & test.. No. 1526.

2 Marcad. Exp., 15.

Escriche dice. verb, interprete.
The instruction of the presiding judge to the
jury, that the testator and witnesses should
alike hear and understond the testament, and
that, under these conditions, its piit)lication as
the will of the testator should be made, em-
braced all that it was necessary to be said upon
this part of the case.

The last inquiry to be made refers to the
weight to be given to the testimony adduced in
support of the factum of the codicil. This con-
sists of the proof of the signatures of the de-
ceased witnesses and of the testator, and of
some declaration by him that he had made a
will with a similsr devise. We comprise,
among the witnesses to the will. Ridley, the
iindieo. It does not appear that a niufiiv
was charged with any function in the prepara-
tion or execution of testaments by the law or
custom of California. Nor is it clear that the
sindieo in the present instance expected to give
any sanction to the instrument by his official
character. He attests the execution of the will
and we cannot perceive why the description of
himself which he affixes to his signature should
detract from the efficacy of that attestation.

The binding force and legal operation of this
codipil are to be determined by the law, as it
existed when the codicil was made. But the
mode in which it should be submitted to the
court and jury, and the effect to be given to
the testimony that accompanied it, da>end
upon the law of the forum at the time of the
trial. The evidence of the signatures of the
testator and witnesses was competent; and ii
was a proper question to be submitted to the
Jury, whether, under the circumstances of tJie
case, it was probable the formalities required
by the law were complied with. As supplecocr
proof that the testator had made the codicil
and was acquainted with the contents of the
instrument, the admission or declaration offered
as evidence was competent testimony.

•4 U.S.

1859.

Lcco V. Umitsd Stateb.

515-543

Upon a retfimD of the whols etue, our opinion
M, inere i» no error in the record, and the judg-
ment of the circuit court is affirmed.

JUAN M. LUCO AND JOSE LEANDRO
LUCO, AppU.,

THE UNITED STATES.

(See S. Co 23 How., 615-648.)

Mexican land claim — should be found in the
archives — testimony of officers cannot supply or
contradict records.

Mexican title to Rosa, after a careful examina-
tion of the testimony, is pronounced false and
forged.

As a ^neral rule, no grrant of land purportinsr
to have issued from the late Government of Cali-
fornia should be rdoelved as srenulne by the courts
of the United States, unless it be found noted in
the registers, or the e^pedienU, or some part of It
be found on file amonflr the archives, where other
and genuine grants of the same' year are found.

The tMtimony of the late oflBcers of that govern-
ment cannot be received to supply or contradict
the public records, or establish a title of which
there is no trace to be found in the public archives.

Argued Apr. IS, 1860. Bedded Apr. SO, 1860.

APPEAL from the District Court of the Unit-
ed States for the Northern District of
California.

The history of the case and a full statement
of the facts appear in the opinion of the facts
appear in the opinion of the court.

Messrs. C. Cashing and C. Benham, for

appellants:

Are the papers false ?

Upon this issue the theory of the defense is,
that the claimants have forged two several
grants to the land claimed; that the first was a
very base counterfeit, which would not serve
as a title paper; that consequently they pro-
cured anoUier (as to whether a forged one or an
antedated one, counsel and court below both
seem to be indifferent); that that other is the
one upon which we now rely. These propo-
sitions they claim to have proved directly by
the testimony of two of their witnesses, Horace
Hawes and Raphael Guirado. and indirectly
by circumstances attendant upon the title, its
history, and the mode of conduct of the case.

There is an attempt to dispose of what mili-
tates against this theory of defense, by impeach-
ment, cross examination, analysis and compar-
ison.

On our part, in reply, we contend, in the first
place, that the testimony of Rawes and Guir-
ado must be rejected, and that the case stands
as if their depositions had never been taken,
and that it will be considered upon the other
testimony alone.

Leaving Hawes and Guirado out of yiew, we
find that the testimony of other witnesses has
been taken to maintain the theory they were
expected to establish. In discussing it, I shall
follow the order of the court below m its opin-
ion rejecting the claim. That opinion is not in
the record ; but it has been printed, and as I
am informed very kindly furnished to the court
by the distinguished gentleman who delivered
it — the Honorable Ogden Hoffman. That opin-

See 28 How. U.S., Boo^ 10,

ion does full Justice to the case of the govern-
ment.

The o{^inion makes the following points
against the claimants:

1. The claim was not presented in time, and
no explanation of the fact was given.

2. The archives afford no evidence of the
genuineness of the papers.

(a) The grant is not registered there.
{b) There is no record of approval there.

(c) There was no espediente there; but on the
contrary all there is of it, the petition and mar-
ginal decree of concession, was produced from
the claimant's custody; no explanation was
given as to where it had been; who had it; how
or under what circumstances we had sot it.

(d) The grant is not numberM, ana no gap
is left for it in the numbers on the espedieiUes
made about the time of its date, or in the num-
bers of entries of grants in the so called book of
Toma de Razon.

8. There was no possession. Rosa himself
has so declared.

4. No claim of ownership, recognized and
acquiesced in by the public authorities, or even
by the neighbors and coUndanles.

5. The signatures are forced.

6. The seal on our grant is false. '

7. The description of Pico's office, written at
the head of the grant, is not the proper one.

8. The principal witnesses for the claimants
are impeached.

9. It is strange that other grants made about
that time were not approved until the next or-
dinary session of the Departmental Assembly.

10. The mere fact of so many suspicious
circumstances arraying themselves against us,
though each may be answered, is overwhelming
against us.

These points were discussed seriatim by the
counsel. But the discussion being chiefiy con-
fined to the evidence, only the following brief
abstract of parts of the argument is here given.

The testimony offered to prove a forgery, is
that of certain persons introduced as experts.

This testimony is inadmissible.

At the time it was offered, Pio Pico had not
been called to disprove his signaHire. He
should have been called by the government in
the very beginning.

When the object is to disprove handwriting,
the supposed maker is the best evidence and
must be called

1 Phil. Ev.* 223-225, p. 48. and note 918;
2 Phil, Ev., 555, and noU 422, S Phil. Ev.,
p. 1832, et infra., p. 1887; Gurney v. Lang-
lands, 5 Barn. & Aid.. 880.

To say the least, it argues very ill for the
conviction on the minds ot the government
agents of the forgery, that they did not call Pio
Pico. McKnight, Orlando, who thinks Pico's
signature was made by Covarrubius; that it is
stiff and clumsy, while certain specimens are, as
he says, natural and without restraint. This
person is not accustomed to Spanish documents,
and confesses that he does not consider himself
an expert in relation to them.

Puray, J. H., who thinks the same as Mc-
Knight, and finds the capital p, and the rubric
differently shaped from specimens shown him,
confesses also that he does not know the Span-
ish language; is not accustomed to compare
Spanish documents; does not consider himself

<55 64o

61(H^

8i;rR£MK CouBT OF THA Unitbd Statss.

Dsc. Tebm,

an expert in relation to them ; and does not aee
well.

It is submitted that this testimony is entitled
to less than the usual weight of the best of the
kind. It is pronounced bv all the books the
weakest and most unreliable of testimony.

1 Phil. Ev., 493, note 9I«, p. 1882.

The opinion of other witnesses is taken, not
because of their bkill as experts, but of their
assumed knowledge of Pico's signature. These
persons do not agree in the reasons they give
for their opinion.

" If witnesses, concurring in the result, clash
in their reason, this will take from the general
force of their testimony, however confident they
seem

ComtaUe v. SUibd, 1 Hagg. EccL. 66.

Their conclusions are dtawn from dissimil-
itude appearing on comparison, and if admissi-
ble, which we contend they are .not, they are
entitled to little consideration as against those
drawn from similitude.

Young v. Brawn, 1 Hagg. Eccl., 556; Bell v.
Norwood, 7 La., 96; Contttable v. Steibel, I Hagg.
EccL, 56; Murphy v. Hagerman, 1 Wright,
292; Crisp v. Walpole, 2 Hagg.. Eccl., 581.

It is thought that all that is said and attempted
to be proved against the genuineness of Pico's
signature, is mere refining in the presence of
the proofs of genuineness offered on the part
of claimants.

Pio Pico himself says, upon inspection of a
traced copy of the title papers, that the signa-
tures appear to be his, and that he believes he
put them there at the time they purport to have
been put there. This was testimony in chief,
and is palpably from inspection of the papers,
not from recollection. When cross-examined,
he admits at first that he speaks from inspec-
tion. But he finally appeals to his recollection,
and confirms the genuineness therefrom.

>Iany witnesses also prove, the genuineness
directly.

A forger would have been unlikely to adopt
a rare mode of making tlie most striking letter.

It is absurd to say Pico's signature is a
forgery in the presence of his testimony. He
would as soon have antedated for us as sworn
falsely for us.

Pico should have been impeached. He has
not been.

This is all the testimony which tends to es-
tablish a forgery, exclusively. The other testi-
mony in the case is equally applicable to ante-
dating, as to forgery.

It is said that the seal on oui grant differs
from that on our certificate of approval, which
latter is admitted, and proved by the govern-
ment's own witness to be genuine; and that, in-
asmuch as Covarrubias says he does not re-
member more than one seal, the impression on
our grant is false.

We do not admit that the difference claimed
to exist between the impression on the grant and
that on the approval proves, by any means, that
they were made by different stamps. These
stamps were very rude; they were prepared for
print mg by greasing them and holding them on
the blaze of a candle, until the soot and grease
made a coloring matter; they were then applied
to the paper, not by a machine, which would
give a just impression, but by the hand.

The differences visible in the two impressions

246

consist only of minute differences between the
spaces of parts of the objects on the impres-
sions, or of differences in the relative angles of
two or three letters of the inscription. All
these differences are mechanical, only occa-
sioned either by the want of uniform density
and proportion in the lamp black and grease
with which the impression is made, or in the
want of precision or uniformity in the action of
the hand in applying the stamp.« There seems
a greater difference as found occurring accident-
ally in all such impressions, and they may be
produced experimentally at will with any stamp,
either employing wax, or still more employing
lamp blacK and grease.

As to any deduction to be drawn from our
not producing an impression from the archives
similar to the one impugned, we protest against
it. If the government desire to predicate an
argument upon the fact, if fact it is, that the
archives present no impression like the one in
our grant, it should have been proved. We do
not aidmit that there is any ground of suspicion
in this circumstance. Until it is proved thai
there is but one die, there is no reason to suspect
the genuineness of the seal at all. It has the
same legend and device as the others have.

This seal is vindicated by the two other seals;
they are admitted to be genuine, and the stamp
that made them is prov^ to have been deliv-
ered into the hands of Fr^giont as early as the
change of flags; the presumption is, that it has
remained in Uie custody of the government ever
since.

The seal was not necessary upon these papers:
it was not required by law. Covarrubias
would not liave put on a false seal whea none
is necessary. He is the man who made the
grant. He says so, and it is in his handwrit-
ing. He knew the law. He was the very man
to know exactly what was required; he had
been Secretary of State.

It is affirmatively proved to be genuine.

** After proving the seal, it will be presumed
to have been properly affixed, and it will lie on
the opposite party to show that it was afKxed
by a stranger."

Lord Brounker and Sir Robert Atkyns, 8kin.,
2, cited in 8 Phil, 1062, note 717.

If it be supposed we found two blank papers
with the genuine seals on them, we ask, why
did we not write the grant and approval on
them, and the petition and marginal decree oa
an unsealed one? This theory is forbidden by
the fact that this is not the stamped seal, the ha-
bilitating seal, but it is the governor's seal, put
on acts in his office, to attest their genuineness as
his, not to show the paper was lawf uL If it
be supposed that we haa access to the genuine
stamp, why not use it on all the papers?

Or, if we foraed the stamp, why not make a
fac simile? We have as fine artists ia San
Francisco as there is in the world, and the seal
is a very rude one.

Some of the witnesses for the claimants are
sought to be impeached, and many witnesses
examined for that purpose; but ail of those
who are attacked are so corroborated, that even
if successfully impeached as to character, they
must be believed in this instance.

The attack, however, upon their character
gives us no concern. We conceive we hi\ve re-
pelled it by proof of good character, and we

1850.

Luco y. UfiiTKD States.

615-543

are perfectly contenterl to submit the matter to
the judgment of the court, upon the testimony
of our witnesses in support.

After we have repelled the suspicion arisinjo^
from each circumstance, we are gravely told it
still remains that we were surrounded by many
suspicious circumstances.

In the first place, it is to be observed that
there are not so many circumstances as the
theory of the attack upon this title presupposes.
On the contrary, they are but few. There are
two or three great facts in the case: each of
these is attended by minor circumstances which
follow it as necessary consequences; and ^et
these two or three facts are marshaled with
consummate generalship, not alone, but in the
van of all these followers.

Thus, we have the petition in our own hands
— an irregularity, if you please, a suspicious
one; but certainly its suspicious character is
not heightened by the other facts of which it
was the cause, namely : absence of our grant
from the so called book of Tomade Razon from
Jones* list, from list of numbers on the entries
in that book, and the fact of our Mpediente not
bearing any number on itself. Again ; De la
Rosa is a garrulous, eccentric, and perhaps un-
happy old man, a fact irrelevant in itself, but
very significant in view of his declarations,
seeming poverty, and dependence, and petty
occupations.

Of course we cannot answer these groups of
circumstances collectively — they have no rela
tions inter se; we must answer them severally,
dealing with isolated circumstances by them-
selves; it is the bundle of fagots, not suscepti-
ble of being broken when united, but quite suc-
cessfully to be destroyed if taken apart, and
broken one by one.

It is absurb to say that the suspicious circum-
stances are severally explained and yet collect-
ively survive. It is submitted, the claim is
valid and must be confirmed.

Messrs. J S. Black, Atty-Gen., and P.
Delia Torre» for appellees.

[The ar^ment of these counsel was able and
elaborate m support of the defense, based on
the fraudulent character of the claim. As it
was chiefiy confined to the discussion of the
facts and evidence, it is not deemed of import-
ance to this report.]

Mr, Justice Grier delivered the opinion
of the court:

The appellants, Juan Manuel Luco and Jose
Leandro Luco, filed their petition with the
Board of Commissioners for ascertaining and
settling land claims in California, on the 18Lh
of September, 1854. This was after the time
limited by the Act of Congress of 1851 (9 Stat,
at L., 631). But, on their application. Con-
gress passed a special Act (July 17, 1854, 10
6tat. at L. , 784) authorizing the presentation
of their claim.

They claim under a grant made to one Jose
de la Hosa, dated 4th of December, 1845, and
purporting to be signed by Pio Pico, as acting
governor, and countersigned by Jose Maria
Covarrubias, secretary. This document was
deposited in the surveyor-eeneral's ofiSce on the
25th of October, 1858, and had attached to it a
paper, purporting to be a petition, by Jose de
la Rosa to the governor, setting forth that the

See 28 How.

ffovemment was indebted to him in the sum of
f4,650 for services as printer, and praying for
the sobrante, or lands remaining between cer-
tain ranches of Vallejo and others.

The boundaries of the land prayed for are set
forth very distinctly, but without any limitation
as to the quantity of land contained therein.
On the margin of this petition is the usual order
for title, purporting to be signed by Pio Pico
on 8th of November, 1845.

There is also attached a paper, purporting to
be a certflcate of approval by the Departmental
Assembly, certified by the signatures of Pio
Pico ancf Jose M. Covarrubias, and dated 18th
of December, 1845.

This zrant is for land within certain bounda-
ries, and unrestricted as to quantity. Its con-
firmation was vigorously opposed liy the coun-
sel for the government. They alleged that the
documents produced to support Ihe claim were
forgeries, supported by perjuries of persons
who had conspired to defraud the government
of an immense body of valuable land. Upon
this issue the parties went to trial before the
commissioners, who found in favor of the
United States. The case went by appeal to the
district court, where much additional testimony
was taken, a thorough investigation made, and
these documents were again adjudged to be for-
geries.

The appeal to this court compels us, however
unpleasant the task may be, to pass upon this
issue of fact, in which the character and con-
duct of others, besides the parties, will neces-
sarily be made the subjects of discussion. •

This claim first made its public appearance
in 1853, after the lands had been surveyed by
the United States Government as vacant. Pre-
vious to such survey, the public officers had
used every diligence to discover whether any
person possessea any title or claim to these lands,
but the inhabitants of the district, and the
owners of adjoining lands, were all ignorant of
any claim, by possession, grant, or otherwise.
The lands within tlie boundaries of this alleged
grant amount to 270,000 acres, or thereabouts.

The person to whom the grant purports to be
made was almost a pauper, ana though not
actually a servant, yet a dependent of General
Vallejo, residing in Sonoma, gaining a pre-
carious livelihood by making and mending
clothes and tinware, acting as alcalde, printer,
gardener, surveyor, music teacher,and attending
to a grocery and billiard table for Vallejo; ana
duringall this time, from the date till the public
appearance of this title, wholly unaware of his
wealth and immense possessions, and always
representing himself as a poor man, while ne
had in his possession a title to 270,000 acres of
valuable land.

The archives of the Mexican Gk>vemment
furnish not the slightest trace of any such grant ;
although all the other grants made in the same
year and month, and on the same day, are
carefully recorded and registered, and the es-
pedientes found on file.

These facts might well justify the govern-
ment officers in questioning the authenticity of
this grant, whatever the character and standing
of the parties might be, who pretend to establish
it by their testimony.

The claimants, in order to establish their title,
examined Jose M. Covarrubias, who was sccre-

647

510^548

SUPBSMB COUBT OF THE UnITRD StATSS.

Dec. Tebm,

taiy of the governor, Pio Pico, at the time the
jn'ant purports to have heen signed. He testi-
fies that " it is in his handwriting, and the at-
testation is his signature; that he does not
remember' to have seen Pio Pico sign it; but
that his signature appears to be genuine, and he
believes he signed it.

We shall have occasion to notice the testi-
mony of this witness more particularly here-
after. At present we only say, that there is no
reason to doubt the truth of his statement, so
far as he attests his own acts; but that he wrote
and signed it on the day it bears date, needs
confirmation; for. if it was so written and
signed by him on that day, he should be able to
give some reason why it does not appear on the
register with the other grants made on the same
day. It is true, he attempts to do this by sieging
that he registered it in some other book not
found in the archives, but he cannot give a
reason why all other grants were on the book
found, and this one alone in some unknown
register. If it was so written and signed by him
on the 4th of December; 1846, it is incumbent
on the claimants to give some account of it —
to show why it was kept secret till 1863. If in
possession of the grantee, why it was not pro-
duced and laid before the commissioners; why
the petition and marginal order forming part of
the espediente, if there was one, is found in the
possession of the grantee; and where and when
the certificate of approval was found and kept.

These and many other questions, which de-
mand a solution, the claimants have not en-
deavored to answer. But they endeavor to prove
— let, that this CTant was seen about the time it
bears date; ana 1^, that Rosa had a ranch on
this tract of land, with a stock of cattle and
horses, and resided on it, for a time at least,
with his wife and family, up to 18i9, claiming
it as his own.

The chief witnesses to establish these facts,
besides numerous others, called to prove the
possession, are Jose de la Rosa, Mariano G. Val-
fejo, and his brother, Salvador Vallejo. More
than twenty witnesses have been called to prove
that the character for veracitv of these persons
is so bad that they should not bebelieved on their
oaths. As many testify to their good character,
and especially to that of Mariano G. Vallejo.

There is proof also of declarations of Rosa
that Vallejo was indebted to him or his false
swearing for the property he possesses: '* That
the only right way of swearing was by the
priest, with the Catholic cross." and that " he
was not afraid of tlie laws from the way the
Americans swore witnesses. "

Such testimony of admissions is of very little
value, and is, generally, not worthy of regard ;
and the testimony as to character is so equally
balanced, that we do not feel at liberty to reject
any portion of it for that reason. There are
many more satisfactory tests of the truth of
parol testimony than that of character of the wit-
nesses. Where the facts sworn to are capable
of contradiction, they may be proved by others
not to be true; and when they are not. the in
temal evidence is often more convincing than
any other. A shrewd witness, who is swearing
falsely to something which cannot be disproved
by direct testimony, will confine his recollec-
tion wholly to that single fact, professing a
want of recollection of all the facts and circum-

64»

Btanoes attending it. An inexperienced witness,
whose willingness to oblige his friend exceeds his
Judgment, will endeavor to give verisimilitude
to his tale by a recital of imaginary circum-
stances. A stringent cross examination will
^nerally involve the latter in a web of contradic-
tions, which will be in a measure «vaded by the
other, with the answer that he " does not recol-
lect." Where many witnesses are produced to
the same facts, and they contradict one another in
material circumstances, they prove themselves
unworthy of credit.

It would be a tedious, and we believe an un-
necessary task, to examine severally the testi-
mony or the 120 witnesses examined in this
case, and test their respective credibility on the
principles we have stated. With the exception
of a few remarks on the testimony of the wit-
ness already alluded to.weshall, therefore, con-
tent ourselves with stating the result of our ex-
amination, without an attempt to vindicate its
correctness by exhibiting the process by which
it has been attained.

Jose de la Rosa was called by the claiman island
examined. Having sold to the claimanta with-
out general warranty, he was a competent wit-
ness. He was the person who might elnctdate
and explain the many difficulties and suspicious
circumstances connected with this tniDfiaction,
if they were capable of explanation. But. in-
stead of it, we find his examination in chief
exceedingly brief. He is asked to prove the
signatures of Pico and Govarrubias from his
knowledge of their signatures. He ia then
asked if he ever had in his possession this arrant,
and when and where he received it. To which
he answers, that " he received it from Don Mari-
ano G. Valleio. in Sonoma, in the hitter part of
December, 1845."

He is then asked if he ever had in his poeaes-
sion the certificate of approval, and when and
where he received it. To which he answers,
that it was delivered to him by Vallejo in the
be^nningof the year 1846.

With this meager statement of matters. impos-
sible to be contradicted except by Vallejo liim-
self, the claimants conclude their examination
in chief. The cross examination fully confirms
the wise caution of the claimant's counsel in not
troubling the witness with too many questions.

When asked to explain his circumstances
since 1846, he answers, that "he is rich; that
his wealth consists in money at present; former-
ly in horses, cows, oxen, houses and land, and
a house in Sonoma. Of mares and horses (he
says) I have probably had five hundred, but not
all at one time. From 1846 to 1847, I had 500
head of cattle ; that in 1846 he had four hundred
upon the raneho of Julpines." Now, all this
has been proved by numerous witnesses to be
utterly false. It would be tedious to notice all
the absurdities and contradictions of himself,
to be found in this cross-examination, as to the
mode in which he has disposed of his wealth

With regard to the existence of this grant.
Mariano G. Vallejo testifies that he received it
by a courier from the governor, in December.
1845; that he handed it to Rosa, '* and he was
much pleased." That this was the only paper
received by him, and that is all. On cross-
examination, he said he had seen the petition
before he saw it on the files of the Limd Office,
but not the approval

64 U.S.

1859.

Luoo V. Unitbd States.

516-548

Again ; in answer to another question, be de-
nies ever having seen any paper but the grant
at the time he received it, or afterwards, tUl he
found the t-hree papers connected together in
the Land Office. In this he contradicts not only
himself, but Rosa, who says he received the
certificate of approval from him.

This testimony, instead of solving the diffi-
culty as to the origin and history of this grant,
leaves it in greater obscurity than it was be-
fore.

The testimony offered to prove the possession
and improvements is so contradictory as- to fur-
nish material evidefice of its untruth. One
witness describes the house built by Rosa as
made of poles; another declares that it was an
adobe house, and that Rosa resided in it with
his family; and as the house was near the Sac-
ramento road, he had frequently seen them in
it, and their cattle, horses, &c., on the land, up
to the year 1849; another, that the house was
more than eight leagues from the road. One
says that he lent Rosa horses to convey his fam-
ily to the raneho: another, that he took them
in a boat; while Kosa himself ignores the boat,
and swears he had horses of h£ own, and had
no need to borrow, and that his family or him-
self had never resided an v where but in the town
of Sonoma, forty miles distant from the land —
sometimes visiting his raneho for two or three
days. Another, after swearing to the fact of
residence by Rosa and family on the land, ad-
mits, on cross-examination, that he never saw
the land.

The testimony for the United States estab-
lishes beyond a doubt that the whole of this
testimony is a mere fabrication ; that Rosa never
resided on the land; that he had no cattle or
horses, but lived in the town of Sonoma, a de-
pendent of General Vallejo; with difficulty
gaining a precarious yipport from his numerous
avocations; always declaring to the tax asses-
sors that he had no real property, except a small
lot in Sonoma, and no personalty beyond a cow
and a horse.

Thus far the testimony produced by the
claimants, instead of dispelling the suspicions
attached to this grant, has only increased them
— forcing on our minds the conviction that a
grant attempted to be supported by perjury-must
necessarily itself be false.

The first public appearance of this claim,
therefore, cannot be dated earlier than the 18th
of March, 1853, when Jose de la Rosa makes
his conveyance to the claimants, reciting this
paper of 4th of December, 1845. for the alleged
consideration of $15,000. This deed describes
the land by boundaries, and is entirely silent as
to quantity.

Now, we need not have recourse to the testi-
mony of Rafael Guirado of the conversation
overheard in the house of Vallejo between him
and the claimants, and the alleged confessions
of Yallejo with regard to this grant. Some
doubts have been cast upon the character of this
witness for veracity, and the testimony of such
declarations and admissions is generally worthy
of little reliance. Nevertheless, his story has
an air of probability when connected with other
evidence in the case, that forbids the conclusion
that so great a simpleton as Guirado could ever
have invented it.

The United States, in order to support this

See 28 How

issue, are not bound to show by whom a scheme
of fraud has been concocted, or how, when, and
where, it was executed. It will be sufficient if
they can show facts inconsistent with the alle-
gation that the deed in contest existed on the
day or year of its date. It is possible that the
officers of the late government may execute
grants since their power has ceased ; and when
called to prove their authenticitv, may forget
to mention the fact that their deeds are ante-
dated. We regret to say that the testimony in
this case justifies and demands this assertion.

Three iact8,tending to prove the authenticity
of this p^rant, are proved by claimants: 1st, that
the petition now produced in connection with
the grant was sioped by Jose de la Rosa; 2d,
that the marginal order on the same is in the
handwijting of Oovarrubias,the secretary, being
the only instance in which he has been known
to have acted as clerk to make such entry; 3d,
the tUtUo and certificate of approval are in his
handwriting, and signed by him.

Admitting these facts, to be proved, we must
inquire whether there is sufficient evidence to
convince us that these documents were not ex-
ecuted at the time of their date, but some seven
years thereafter.

I. We have already shown that this grant
made its first public appearance in*185d, when
it suddenly came forth, as is alleged, from the
chest or pocket of Jose de la Rosa, and was im-
mediately transferred to the claimants.

II. That the grantee himself, examined as a
witness, can ^ve no consistent or probable his-
tory of its origin, or why he had always lived
in ignorance of it; or.if its existence was known
to him, why he kept it a secret, or why a poor
and ^rrulous old man should never mention it
to fnend or neighbor till about the date of its
public appearance; or what possible motive
could be found for a millionaire living as a pau-
per for so many years, and then disposing of his
immense estate for a trifle.

III. We have shown, also, that the testimony
of the witnesses, called to prove a long posses-
sion and claim under this title, is a tissue of false-
hoods.

These facts alone would be sufficient to con-
demn this grant, and show that it had no exist-
ence before 1852; but if any doubts should still
exist, that which remains to be stated will cer-*
taii^ dispel them.

I V. It IS proved that the counsel to whom
the claimants first made application for his serv-
ices to obtain a confirmation of this grant, on
examination of the document presented to him
as evidence of title, refused to be so employed,
because the deed produced was a palpable for-
gery; that it was not the instrument now pro-
duced ; that it had the signature of the secreta-
ry, Govarrubias, forged so badly that his name
was twice misspelt in different ways, while the
present is written by Govarrubias himself and
IS, consequently, free from such blunders.

It has been argued that this testimony should
be rejected as incompetent, because counsel has
revealed the secrets of his client. To this it is
answered, that the relation never existed, the
counsel having refused to stand in that relation
to the claimants. The right of privilege from
examination was neither claimed by the counsel
nor by the claimant, and the witness being ex-
amined without objection, we are not required

515-543

SUPRBHE COTTBT OF THE UkiTBD STATSS.

Dkc. Thrw,

to decide how far a counselor who has been re-
quested and refused to be a partaker with per-
sons attempting to defraud the government may
plead his prlviTe^,and refuse to adswer. Hav
ing answered without objection, it cannot af-
fect his credibility that he is willing to expose
a fraud under these circumstances. As a wit-
ness, his testimony is unimpeached and uncon-
tradicted, and unwillingly confirmed by Covar-
rubias.

V. When the application was made to Con-

fress, the petition and certificate of approval
o not appear to have been found, and were
not annexed to the grant till it appeared on file
in the Land Office.

VI. There is not attempt to account for the
fact that the petition, instead of being annexed
to the espendiente, is found in the hands of
claimants, and not amon^ the archives, where
the egpedientes of all the authentic grants
made in that' year are found. To account for
this fact, Covarrubias, in his first affidavit, tes-
fied "that it was the practice of the office to re-
turn the petition with the grant." But when his
deposition was taken, witn cross-examination,
he is forced to confess the untruth of the first
statement, and admits, what is a well known
fact, that the petition formed part of the egpe-
diente always preserved on file among the ar-
chives.

VII. No trace of this grant is to be found
amone the archives of the government; it is .not
founaon the registry of grants for that year,
while authentic grants made in that vear and
month, and day of the month, are found on
the files and registry.

VIII. The seal on this paper differs from
that found on authentic grants of the same
date, and Covarrubias himself admits that there
was but one seal used in the office while he
was secretary. This seal, on careful examina-
tion by persons qualified to Judge, is proved to
be a forgery.

IX. The signature of Pio Pico and his ru-
bric, when compared with a large number of
his authentic signatures found in the archives,
and those made on the same day in which the
grant in question is dated, is found to differ in
many particulars from that found on this pa-
per. His official signatures are remarkable for
iheir uniformitv Many excellent judges have
carefully scrutinized and compared these signa-
tures, and declare the signatures in question
are forgeries. Two of them express the opin-
ion that the person who wrote the body of the
instruments made the signatures also.

We have ourselves been able to compare
these signatures by means of photographic
copies, and fully concur (from evidence **oetUUt
»uhfeeta fldelibus") that the seal and the sig^na-
tures of Pico on this instrument are forgeries;
and we arc the more confirmed in this opinion
by the testimony of Pico himself, found on the
record. In a brief affidavit made on the 9th of
June, 1858, he swears, without hesitation, that
"the document bearinja; date December 4, 1846,
was signed by him. But in his deposition
taken in this cause on the 27th of February,
1^57, while this issue was pending, he appears
to testify with very great caution. He seems to
have drawn out a certaia. formula of words on
which it is clear that a convi ction of perjury
could never sustained, whether his testimony

was true or false. The answer is in tbeee word»,
and three times repeated in the very same
words:

"I cannot now remember in regard to the orig-
inal document mentioned in said interrogatory,
but the signature, as appears in the traced copy,
appears to be my signature, and I believe it
was placed there by me at the time the docu-
ment bears date." His memory appears to be
much weaker than his faith, as it might have
been supposed that such a sale of territory
would have attracted his attention sufficiently
to be remembered forever after.

X. This certificate of approval by the De-
partmental Assembly bears aate at a time when
the public records and minutes of that body
show that it was not in session. It is dated on
the 18th of December, 1845, and the reaolotioo
of approval appears to have passed on the llth
of the same month.

The records of the proceedings of the As-
sembly at the close of 1845, and beginning of
1846, are preserved They show that on the
8th of October. 1845—

"The sessions of the Assembly were suspended
for the rest of the year, in consequence of per-
mission having been granted to the Senores de-
puties, who reside out of this capital, to retire
to the places of their residence, in view of the
injuries they must suffer in consequence of
their salaries due them respectively, aa func
tionaries. not being paid.*'

A publication of the foregoing in all the
puebloB of the department was onlered to be
made, October llth, 1845.

The next session of the Assembly, as shown
bv its Journals, was on the 2d March, 184!$.
The Journals state that the governor and certain
deputies, who are named, nad "assembled for
the purpose of reopening the ordinary sessions,
which, by a resolution of#tbe body, had been
suspended for the balance of last year, where-
upon the proceedings of the 8th day of October
of the last vear were read and approval,'* iSco.

It is evicfent that no ordinary session of the
Assembly was held on the llth December, the
day on which this grant is certified to have
been approved.

It is contended, however, that extraordinair
sessions were held, of which no record wa^
kept and the tesMmony of several witnesses
has been taken, to establish the fact.

But this attempt to supplement or falsify
these records has wholly failed, and more es-
pecially as it appears that all the other grants
admitted to be genuine, and which are of a date
later than the 2Sjournment,were presented and
approved after the Assembly reassembled, on
the 2d of March, 1846; and the form of words
used in the certificate of approval of this one
differs from the eleven others, dated between
November 22d, 1845, and December 19th, 1845.

In conclu8ion,we must say. that, after a care-
ful examination of the testimonv, we entertain
no doubt that the title produced[ by the claim-
ants is false and forged; and that, as an infer-
ence or corollary from the facts now brought
to our notice, it may be received as a general
rule of decision, that no grant of land purport-
ing to have issued from the late Government
of California should be received as genuine by
the courts of the United States, unless it be
found noted in the registers, or the tapendUnie,

18o9

Day v. Waphburn.

809-812

or some part of il, be found on file among the
archives, where other and genuine grants of
the same year are found ; and that owing to the
weakness of memory with regard to the dates
of grants signed by them, the testimony of the
late officers of that government cannot be re-
ceived to supply or contradict the public rec-
ords or establish a title of which there is no
trace to be found in the public archives.
Let thejudgment oftJie district court he affirmed,

Rev'ir--Hoff. L. C. 845.

Cited-24 How.. 128. Ii8, 351; 1 WaU., 745; 7 Wall..
747 ; y WoodflM 337. 839 ; 10 Bias., 410.

GEORGE W. DAY, BOWEN MATLOCK,
ISAAC H.FROTHINGHAM and GEORGE
W. WARNER, Appts,,

WILLIAM A. WASHBURN and JOHN A.

KEITH.

(See S. C, 23 How., 809-312.)

Motion to dwnise — wTien denied — merits.

Where the record suggests many poiats connected
with the real merits, and in respect to proper plead-
ings in equity, which cannot be considered upon
motion to dismiss, the court will refuse the motion,
but will allow it to be brouirht to the notice of the
court afirain, when the case shall be arsrued upon its
merits.

Motion filed Apr. gO, 1860. Decided May i, 1860.

APPEAL from the Circuit Court of the Unit-
ed States for the District of Indiana.
The case is sufficiently stated by the court.
On motion to dismiss.

Mr. R. W. Thompson* for appellants.

Mr. Justice Wayne delivered the opinion of
the court :

Albert G. Porter, Esquire, a counselor of this
court, and who was concerned as counsel in
the court below for certain petitioners, claim-
ing an interest in the matter in controversy ad-
verpely to the appellants, asked to be permitted,
as amieuB curia, to move for the dismissal of this
appeal, alleging for cause that it had been ir-
regularly brought to this court, in this particu-
lar, that the appear had been thken only by a
part of the complainants, and that such of them
as had been omitted were not parties to the ap-
peal. ^

The record discloses the following facts:

The appellants filed in the circuit court a bill
to set aside, as fraudulent. a conveyance of prop
erty^, and to subject it to the payment of their
claims against William Af Washburn and as*
sociated with him as a defendant John A. Keith,
the grantee of the convevance. The bill was
separately answered bv Washburn and Keith,
and proceedings were had in the case, until at
December Term, in 1858, the issue was made
up upon bill, answer, replication and exhibits.
At that term of the court, December 21, 1858,
a number of persons, claiming also to be cred-
itors of Washburn, filed a petition by their coun-
sel. Hall. McDonald and Porter, praying to be
made parties to the bill, as complainauis, and
to be permitted to share in such distribution as
might be made out of the property charged to

See 28 How.

have been fraudulently conveyed by Washburn
to Keith, in the event of the courts decreeing
that it had been so done, and that it was liable
for the payment of Washburn's creditors. The
court directed these petitioners to be made par-
ties to the bill of the appellants, as complain-
ants, and under that order the decree now ap-
pealed from was made.

But before the decree was rendered, the cau<«e
was refefred to a master, to report the sums
due to the creditors, as they were then appear-
ing to be so in the original bill and other pro-
ceedings of the cause. It was done. Subse-
quently a decree was rendered, declaring Wash-
bum's conveyance to Keith void and fraudu-
lent. In consequence of it, a large sum was
made out of the proi^erty and deposited in court
for distribution. And the court decreed that it
should be ratably distributed between the ap-
pellants and those other creditors of Washburn
who by its orders had been made parties to the
original bill. It is from this decree that the ap-
pellants have brought the case to this court.
They had insisted, before the court rendered its
decree, that being the original complainants,
they were entitled to have their claims paid in
full, and that the remainder of the fund might
then be distributed, in the discretion of the
court, pro rata, amongst the other creditors of
Washburn. But the court overruled the mo-
tion, and ordered the money to be paid ratably
to the creditors. It is from this decision and
decree that this appeal has been broujcht, so as
to have it de«ided, whether, in the particular
just mentioned, it is not erroneous.

It also appears that the appellants were judg-
ment creditors of Washburn when they filed
their bill to set aside his deed to Keith, and that
the other creditors, who have been made partic-
ipants in the fund to be distributed, are not so.
And we gather from the proceedings in the
cause, that their application to be made par'ies
to the original bill was with the view tQ defeat
the appellants of any legal or equitable priority
which they may have acquired for the payment
of their claims over the other creditors, either
from their being iudgment creditors, or from
their vigilance in tirst filing a bill to set aside
the conveyance from Washburn to Keith. We
do not mean now to decide those points upon
this motion, nor any other point connected
with the merits of this controversy. All such
points will claim the attention of the court upon
the argument of the case hereafter. The record
also suggests an inquiry, whether those persons
who were made parties to the original bill and
who have become, by the decree of the court,
participants in the fund to be distributed, were
necessary parties to the bill, or were allowably
so, in their then attitude in respect to their claims
against Washburn. And in no other way can
the question of right between themselves and
these appellants in the fund be reacheii; for the
former, having accomplished their purpose, for
which they were made parties, are neither will-
mg to appeal from the decree nor to be consid-
ered as parties to this appeal.

The record, indeed, suggests many points
connected with the real merits of the contro-
verny, and others in respect to proper pleadings
in equity, which cannot be considered and de-
termined upon a motion to dis»mi8s the appeal
summarily for any irregularities in the process

551

82^-841

SUFHEMB COUBT OF THS UnTFED 8tATB8.

Dbc Tkrit.

by which it has been brought to this court. We
therefore refuse the motion for the dismission
of the appeal; allowing it, ho wever,to be brought
to the notice of the court again, when the case
shall be argued upon its merits.

This course has often been taken by this court
upon a motion to dismiss a case, for irregulari-
ties in the appeal or writ of error, similarly cir-
cumstanced as this is.

8. C— 24 How., ass.
Cited-^2 Bank. Reg., 478.

THE UNITED STATES, Appt.

VICENTE P. GOMEZ.

(See S. C, 28 How., 888-841.)

Motion to diamisa — diimtsMl is not affifTtumee —
effect of— order for diamieaalf wfien vacated.

On motion of the Attorney-General to vacate the
order diBmissing- the cause, and to recall Uie man-
date, it appeared that no appeal had been granted,
and that the cause was not before this court when
the appellee made bis motion to docket and dismiss
It. Motion granted.

A motion to docket and dismiss a cause from the
failure of the appellant to file the record within the
time required by the rule of this court, when grant-
ed, is not an amrmance of the Judgment of the
court below.

It only remits the case to the court below, to
have proceedings to carry that Judgment into
effect, if in the condition of the case there is
nothing to prevent It.

That is for the consideration of the Judge in the
court below, with which this court has nothing to
do, unless his denial of such a motion gives to the
party concerned a right to the writ of mandamuB.

The case being before the court also upon a mo-
tion for mandamiMn they will not consider it, be-
/cause this court had no Jurisdiction of the case
when it was dismissed, and the appellee bad no
right to make that motion.

In a case in which the court bad no Jurisdiction,
and the Judgment in the court below had been ob-
tained by contrivance, the court will vacate the
order far the dismission of the case, and recall the
mandate.

Argued Feb, 10 arid Apr. IS, 1860. Decided

May i, 1860.

APPEAL from the District Court of the United
States for the Southern District of Cali-
fornia.

The case is sufficiently stated by the court.
See, also, the opening statement in the abstract
of appellee's brief given below.

Mr. J. S. Black* Atty-Gten., for appellants.

Mewre. R. H. OiUet« Rewerdy John-
son and D. E. Sicklest for appellee:

This is a California land case, which was
docketed and dismissed in the Simreme Court,
and a mandate sent down to the District Court
for the Southern District of California, where
the cause was originally tried and decided in
favor of Gk)mez.

There are now pending in this court four
motions:

1. A motion by the Attorney-General to va-
cate the order of dismissing the cause, and to
recall the mandate.

2' A motion by Qomez, for a rnandamus to

the said district court, to compel it to file the

mandate, and to remit the execution of the de-

' cree of the district court confirming said land

claim.

8. A like motion by Gk>me7, for a like writ

to compel the said district court to dismiss
proceedings before it by the United States, to
open the decree below, and to grant a new trial.

4. A motion for a mandamus to compel
the Surveyor-General of California to survey
the land comfirmed to Gomez by the decree of
the district court.

These four motions are to be" heard at the
same time in this court :

First. An appellate court will not allow the
clerk who sent up the transcript, to impeach his
own record by ex parte affidavits, or otherwise.

Second. The question,whether Sloan & Hait-
man were the attorneys of Gk>mez in the dis-
trict court, not having been denied by the
latter, nor questioned by the court at the time^
cannot now be inquired into by the opposite
party.

Third. There is evidence of notice of prose-
cuting the appeal in the district court without
reference to the paper signed Hartman &
Sloan.

The appearance of the United States on the
hearing is evidence of the service of notice,
and they are estopped from setting up. that they
were not properly there. At all events it shows
a waiver of notice, and stands upon the same
ground as appeals and writs of error in the
Supreme Court, where appearance has always
been held sufficient, rendering a citation un-
necessary.

Wood V. Lide, 4 Cranch, 180: BroekeU v.
Broekett, 2 How., 241 ; Yeaton v. Lenox, 7 Pet,
220; Buckingham v. McLean, 18 How., 150.

Fourth. The inferior court has no authority
to determine whether the appellate tribunal
had jurisdiction of the cause before it, but was
bound to obey the mandate of the latter.

In SkiUerns Eixec. v. May's JUiee., 6 Craoch,
267, this court said: '* It is too late to question
the jurisdiction of the circuit court, after the
cause has been sent back bv the mandate."

In Ex parte Sibbald v. 'The U. 8., 12 Pet.
488, this court said: "The inferior court is
bound by the decree as the law of the case, and
must carry it into execution, according to the
mandate; they can examine it for no other pur-
pose than execution; or give other or further
relief; or review it upon any matter decided
on appeal, for error apparent; or intermeddle
with It further than to settle so much as has
been remanded."

'* After a mandate, no rehearing will be
granted, and on a subsequent append, nothing
is brought up but the proceeding subsequent to
the mandate."

In West V. Brashear, 14 Pet., 51, this court
said: " The mandate of the Supreme Court to
the circuit court must be its guide in executing
its judirment or deoree on which it issued."

In Chaires v. The U, 8., 8 How.. 611, this
court said : "The court below can only execute
the mandate of this court. It has no authority
to disturb the decree, and can only settle what
remains to be done."

In the Bradstreet case, 7 Pet. , 684, this court
granted a mandamus against Judge Conklisg.
requiring him to cause certain records to be
made up in certain cases, and to enter judg-
ment.

The authority to issue a manctamtcs, was con-
sidered in QiaffoTd v. The Union Bank (tf Lorn-
siana, 58 U. S. (17 How.). 275. 288.

64 U.S.

1860.

TJinTBO Statbs t. Gohbz.

826-S41

Fifth. The court cannot now go behind its
decision and reconsider it after the term at
which the cause was docketed and dismissed,
the mandate having been issued and served.

Sixth. The court below had no authority to
entertain and grant the motion of Gitchell to
open the decree, reinstate the cause, and hear
further testimony after the term at which the
decree was made.

Bb parte Sibbald v. The U. S., 12 Pet., 488;
Cameron v. McBoberU, 8 Wheat., 691.

Seventh. If the decree could be reopened and
the cause reinstated, it could not be done upon
the evidence and grounds stated in the judge's
return.

Eighth. The defendants not applying to the
court to consider and determine the question
whether the cause was properly appealed from
the land commission, the iudge was not author-
ized to investigate and determine that matter
on his own motion.

Ninth. Whether the cause was properly ap-
pealed and properly in the district court,
cannot be tried here as an original question,
and can onlv be heard upon appeal.

Tenth. The effect of recallm^ the mandate,
and vacating the rule to dismiss the appeal,
and refusing the writs of mandamus asked for,
would continue and promote litigation, and
withhold from an innocent purcha^r his legal
rights.

Eleventh. It is the duty of the Surveyor-
Gkneral of California to survey this land claim.

Mr. Justice Wayne delivered the opinion
of the court:

This cause was docketed and dismissed in
this court upon the motion of the appellee, and
a mandate sent to the district cx)urt from which
the transcript of its record was obtained, for
proceedings to be taken by that court to give
the complainant the benefit of its confirmation
to the land in question.

The Attorney -General now moves for the re-
scission of the order of diBinission, and that the
mandate may be recalled.

He does so, alleging that no appeal had been
sraiited to the United States, in the court below,
by which the cause could be brought to this
court for its revision ; because there was then
pending in the court below, when the claimant
obtain^ the transcript, a motion for the review
of the decree which had been given confirm-
ing the claimant's title ; secondly, that the court
had also under its advisement a motion con-
cerning an appeal.

And the Attorney-General further alleges,
that the appealfrom the decision of the Boara of
Land Commissioners rejecting the petition, and
also that the appeal from the district court to
this court, are fraudulent.

The charees as to the first two rest upon the
•records which the appellee presented to this
court, to have the caute docketed and dis-
missed.

The Attorney-General relies upon depositions
and other papers which are on file in the Dis-
trict Court for Southern California, and which
have been transmitted to this court by Judge
Ogier, to establish the charge of a fraudulent
combination between the then District Attor-
ney of the United States, Pacificus Ord, Es-
quire, and the claimant of the land in contro-

Bee 28 How.

versy, and his assignees, to allow them to ob-
tain from the district court a reversal of the
land commissioners' decree rejecting the claim.

W. C. Sims, the Clerk of the District Court
for the Southern District of California, deposes
that the document on file, giving notice that
the claimant intended to prosecute an appeal
from the decree of the Board of Land Commis-
sioners, is in the handwriting of Mr. Ord, with
the exception of the figures No. 278 and the
signature of E. O. Crosby.

The purpose for which this affidavit was
made is, to show the interested connection be-
tween Mr. Ord and the claimant of the land,
from the beginning of the institution of his suit
to establish his right, and its influence upon
the official conduct of Mr. Ord afterward, in
every proceeding In the cause, after it had been
removed from the Northern District of Cali-
fomia to the Southern.

Mr. Ord was originally the attorney of Gomez
before the Board of Land Commissioners, and
filed his petititon there as such on the 9th
Februarv, 1868. He was not then district at-
torney, but he became so on the 1st of July,
1864, before the land commissioners decided
the case against his client. After his appoint-
ment, and after an order had been obtained, at
his instance, to remove the cause from the
Northern District of California to the Southern,
of which he was the district, attorney, and
whilst the cause was pending in the latter, he
took from Gomez, for the nominal considera-
tion of $1.00, a transfer to himself for one half
of the Ifmd in controversy. This Mr. Ord ad-
mits in his affidavit presented to this court by
counsel. The conveyance to him bears date on the
24th of November, 1866. It was acknowledged,
on the same day, by Qomez, before a notary
public of the County of San Francisco, and was.
at Uie request of Mr. Ord, recorded in the
County of Merced on the 26th November, 1867;
was also filed for record in the County of Fresno
on March 26th. 1868, and again recorded by
Mr. Ord, in Monterey County, the 8d May,
1868. A copy of that conveyance is now before
us. These dates show that no record of the
conveyance to him was made until after the
claim had been confirmed by the district judge,
upon his representation that, as district at-
torney, there was no objection to its confirma-
tion ; in other words, that he thought the claim
a valid claim, and was within the rulings of the
court in other claims of the same kind.

We shall cite the notice in its words, for, as
it had been in fact the subject of the court's
action, and could not* have been so without the
knowledge of Mr. Ord, and without his agency,
it devolves upon him the task to disprove the
declarations of Mr. Hartman of the forgery of
the name of the law firm of Hartman & Sloan
to the paper. We ought to remark, however,
that Mr. Sloan, of the firm, is not shown by
any paper to have had any personal agency in
the matter. The notice is: *'Now, on this day,
came the parties, the appellant by Hartman &
Sloan, and the appellee by P. Ord, United
States District Attorney: whereupon, on mo-
tion of the attorney of the appellant, it is or-
dered that the transcript and papers transmit-
ted from the northern district court be filed
in this court, and that the petition for a review
of the same be entered thereon, and that the

668

$26-841

StJX^BfiMB COUHT OF THE UkiTBD StATBB.

Dac.

claimant have leave to proceed in said cause,
the same as if it had been originally filed in
this court." On the same day, a petition was
filed for a confirmation of the claim.

After the confirmation of it in the manner as
will hereafter be stated, Mr. Sloan, upon being
told of the motion, and that it was signed by
the firm of Bloan & Hartman, but, in fact, as
if the style of their Qrm was Hartman <& Sloan,
made his aflldavit under a commission institu-
ted by Judge Ogier, that neither as a member
of the firm of Sloan & Hartman, nor otherwise,
was be ever retained or employed in Uie case;
that he never wrote nor authorized to be writ-
ten any petition or other paper in the case ; that
he i;iever had seen such a petition ; that he had
never authorized anyone to use his own name,
or thai of the firm of Sloan & Hartman, in the
case; and that, if the paper was signed as it is
represented to be, it had been without any con-
sultation with him, or his opnsent or approba-
tion.

The notice for a review of the decision of the
Board of Land Commissioners by the district
court, signed, as has been said, by E. O. Cros-
by, and wholly in the handwriting of Mr. Ord,
was given after his connection as attorney for
Qomez had ceased, and after he had become
the half owner of the land. Mr. Crosby does
not appear afterwards in the suit as the re
tained attorney of Gomez, nor does it appear in
any other proceeding in the record of the case
that he ever was so. It does not appear that
Mr. Crosby was ever recognized by the land
commissioners or by the district court as Uie
attorney of Gomez, from which we infer, as
the notice was in the handwriting of Mr. Ord,
that Mr. Crosby was his agent for the purpose
of obtaining a review of the case in the district
court. Afterward, upon its being found out
that the land in controversy was in the South-
ern District of California, and not in the North-
ern, a petition was filed for its removal to the
southern district, which was granted.

At this point began those irregularities which,
until explained, must leave an unfavorable im-
pression in respect to Mr. Ord's discharge of
Lis official obligations to the United States.

The motion made for the removal of the cause
to the southern district is said to have been
signed by E. W. P. Sloan, Esquire, and pre-
sented by him in open court; and the order, said
to have passed, recognizes that as a fact. On the
same daj, the firm of Hartman & Sloan is re-
ported in the transcript to have filed a notice
of appeal with the clerk of the district court
for the southern district. The paper has all of the
formality and substance which such a paper
should have, but Hartman & Sloan deny the
fact of having had any agency in making such
a motion ; and these separate affidavits would
be sufficient to sustain their disclaimer, were it
not, so far as Hartman is concerned, that his
subsequent conduct in the case shows a con-
nection between himself and Mr. Ord, which
throws suspicion upon both ; and that is aggra-
vated by Hartman's deposition, by that of
other persons, and by the narrative given by
Mr. Ord of his conduct in the suit.*

Hartman then makes his affidavit, that he
had no knowledge who made and caused the
petition to be filra, nor by whose authority and
direction the same was done. But he states

654

that, whilst attending the June Term of the
Southern District Court in 1857, Mr. Ord, then
United States District Attorney, asked him if
he would do him the favor to present a claim
to the court for confirmation, stating it was a
case in which there would lie no opposition on
the part of the government. That, not sus-
pecting there would be anything wrong about
a claim to which the government had no ob-
jection, he consented to do so; that, on the
same day, the court being in session, and he
beins seated at the bar table, Mr. Ord passed
to him the transcript in the case of Gromez v.
United States, which he read to the court with-
out any remarks, supposing it to be the case
of which Mr. Ord had spoken to him ; that aft-
er he had finished reading it, Mr. Ord remarked
to the court that there was no opposition
upon the part of the government to a confirma-
tion; whereupon Uie court replied, that there
being no objection, the claim would be con-
firmed, as a matter of course. Mr. Hartman
continues his narrative of his further connec-
tion with the case and with Mr. Ord, six
months after, at the December Term of the
court, when it was held at Los Angeles. He
says that then Mr. Ord remarked to him that
it had been omitted, at the time of the confir-
mation of the claim, to have a decree signed
by the judge; that Mr. Ord requested him to
draw a decree, and to present it to the Judge,
to be signed nunc pro tunc. He says that he
did so without knowing or suspecting that Mr.
Ord had an interest in the land claimed by Go-
mez. This statement by Hartman of his agen-
cy in the confirmation of the claim, and in set-
ting a decree upon it six months afterward at
the instance of Mr. Ord, is denied by the latter
in his affidavit, excepting as to his declaration
to the court that the government had no objec
tion to the confirmation of the decree. The lat-
ter he admits in stronger terms than have been
given. We shall use the affidavit for other pur-
poses,and will have it printed in connection with
this opinion, in justice to Mr. Ord, that the re-
lations between himself and Mr. Hartman may
be properly estimated from their respective dec-
larations concerning it, only remarking now
that there is proof that Mr. Hartman haa sub-
sequently declcu^ himself to have been the at-
torney of Gomez in the case; that he had been
so in all that he had done in the case; and that
he had charged and demanded a fee for his
services. It is not necessary for us to attempt
to reconcile these differences, but it has cer-
tainly turned out unfortunateljr for Mr. Ord.
in raising a violent presumption, from the
manner in which they acted in the cause, that
there was a concert between them to revene
the decision of the commissioners, and to obtain
a decree in the district court for the claimant

Besides the motion of the Attorney-General
to vacate the order dismissing the cause, and
to recall the mandate, a motion has been filed
by the claimant for a mandamus to compel the
Judge of Uie district court to file the mandate,
and to permit the execution of the decree con-
firming the claim. Another moUon has also
been made by the claimant for a mandamus u>
compel Uie judge to dismiss the proceedings
before it upon the part of the United States, to
open the decree, and to obtain a new trial.
And there is also a third moUon for a manda-

64 U. &

1859.

TJkitbd Statbb v. Gombz.

826-341

mus to compel the Surveyor-General to survey
the land confirmed to Gomez.

We shall not go into the consideration of
these motions, but will confine ourselves to
that of the Attorney-Gkneral, using, however,
such despositions as have been made under
each of them, which correspond with and con-
firm the record presented to the court by the
appellee, when he moved to have the cause
docketed and dismissed.

Judge Ogier, in a return made to the first
motion for a mandamtu, certifies that the
cause was tried by him upon the appeal from
the land commissioners, and that he save a
judgment confirming the claim under the fol-
lowing circumstances:

Mr. Hartman presented the cause to the
court, stating only its title and its number up-
on the docket, and Mr. Ord appeared for the
government, and stated that there was no ob-
jection by ihe United States to its confirmation.
As a matter of course, without inquiry or ex-
amination, that he directed a judgment of con-
firmation to be entered, but that no decree was
given at that term of the court, nor was a mo-
tion made for one, or any motion for an appeal
by the United States to the Supreme Court. At
a subsequent term of the court, E. J. Mc-
Kewen, representing Mr. Ord, made a motion
for an appeal in this cause and in several oth-
ers; that, being then in doubt if an appeal
could be given after the expiration of the term
of the court at which judgment was rendered,
he took the subject under an advisement, and
that then Mr. McKewen suggested that the
same point was under consideration in another
case before the Supreme Court, which deter-
mined him to reserve his decision until that
point was ruled here; then that Mr. Hartman
offered a ja^gment of confirmation, Mr. Ord
assenting thereto, on behalf of the United
States, and it was ordered.

The case remained in this condition, the
right of the United States to an appeal being
reserved until the 7th day of December, 1858,
when Mr. Gitchell, having succeeded Mr. Ord
as district attorney, filed a motion for leave to
withdraw Mr. McKe wen's motion for leave to
appeal, and also filed another motion for a re-
hearing of the cause, substituting the last for
a motion which had been made by Mr. Stanton,
then in San Francisco, and also representing
the United States as its specially retained at-
torney. A day was then fixed, with the con-
sent of all the parties, for hearing the pending
motion. When the day arrived, Mr. Gitcheil
made a motion for a continuance, with an affi-
davit setting forth that the decree which had
been givenfor the confirmation of the claim
had beien fraudulently obtained from the court,
Mr. Ord having become the owner of half the
land in controversy by a conveyance from the
claimant, and that he had conspired with Gk>-
mez, or his assignees, to permit the judgment
to be given for Gomez without a contest on the
part 01 the United States. A copv of the con-
veyance from Gomez was filed with the consent
of the claimant.

Mr. Gitcheirs motion for a continuance was
refused, on the ground that the proper motion
under his charges was to ask for leave to file a
bill of review. But Judge O^ier, feeling and
thinking that he had improvidently given a

Bee 98 How.

judgment of confirmation, did continue the
hearing of the motions to obtain proofs, if any
could be had, concerning the contrivance by
which he had been impof^ upon. A commis-
sion was issued by him for that purpose, and
under it Mr. Sloan made the affidavit denying
all connection and attorneyship for Gomez, as
has already been recited in this opinion. The
case then remained in the district court as it
was when the motions which were made, with-
out any further action upon that for an appeal.

This narrative has been given from docu-
ments, despositions, and declarations of the
parties concerned in the case, and also by other
persons, apparently disinterested, in respect to
the land. ~ They will be found either on the
record upon which the cause was docketed and
dismissed in this court, or in the book of ex-
hibits sent to this court by Judge Ogier, which
were obtained to enable him to act undcrstand-
ingly upon the merits of the case. The case
beln^ still before the court, we do not perceive
any irregularity in the proceedings. Besides
the motion for granting the appeal, the court
had jurisdiction of the cause to determine
what proceedings the claimant was entitled to,
under the circumstances of the case, to get the
benefit of the decree, by survey or otherwise.

We will now proceed to show, from the rec-
ord of the case filed in this court by the claim-
ant, and from the official declarations of the
clerk of the district court from whom the rec-
ord was obtained, that this court had no luris-
diction in the case when it was docketed and
dismissed.

Mr. Sims, the clerk of the court, deposes,
that in this case a transcript was called for by
letter, signed W. W. McGarrahan ; that, when
that letter was received, no appeal had been
allowed to cany the case to the supreme Court,
and that a motion for that purpose was still un-
der the advisement of the court. The deputy -
clerk, Mr. Coleman, however, sent to McGar-
rahan a transcript, which was received by Mc-
Garrahan; and that not being satisfactoir, it
was returned to the clerk, with a letter from
McGarrahan, stating in what particulars it was
deficient; and amung them, that it was deficient
in not having a copy of the order for an appeal
to the Supreme Court, which McGarrahan sug-
gested would be found on the minutes of the
court. To this letter a reply was given by Mr.
Stetson, who had succeeded Mr. Coleman as
deputy, containing an order for an appeal, as it
appears on the transcript before us. It is dif-
ficult to determine how such an order found its.
way into the second ti;anscript of the record,'
when it was not in the first, and when the
clerk deposes that no such order had ever been
given. The order for an appeal may have been
drawn in anticipation of the action of the court
upon the pending motions, and left in the clerk's
office unintentionally, and supposed by the
deputy-clerk to have been passed by the court,
or it may have been drawn by Mr. Ord and
left in the office, to keep up the semblance of
his having faithfully represented the United
States in the case, or it may be that some one
of the parties interested in the land had surrep-
titiously placed it in the transcript to accom-
plish the purpose of having the case docketed
and dismisscKl in this court. Dates will, in
some measure, throw light upon the matter. It

666

S05-515

Sttfrsscb Court of thb XJnitbd Statbs.

Dbc. Tbrx,

was written and dated on the same day that
the court took under its advisement the motion
relating to the appeal. Such antagonism in the
action of the court upon the same 8ub]ecf•ma^
ter of such importance as this was, would, in-
deed, be extraordinary; and the record shows
that it does not exist.

It is a delicate and most unwelcome task
which we are performing; but it must be done
in order that violated Justice may be vindicated ,
and that official purity of conduct in our courts
may be preserved and be unsuspected.

The record upon which this case was dock-
eted and dismissed, in connection with the book
of exhibits sent to this court by Judge Ogier,
establish, in our view, the following facts:

That Mr. Ord became the purchaser of half
the land in controversy from Gomez, the claim-
ant, when he was the District Attorney of the
United States; that whilst he was district a^
tomey, he prepared in his own hand the paper
signed by 8. O. Crosby, for the removal of the
cause from the Board of Land( /Commissioners to
the district court ; that Mr. Ord did not, officially,
as district attorney, represent the United States
in the case in the district court, in any one par-
ticular, but allowed it to be done by others,
who were interested in establishing the claim
of Gomez, to whom he gave his official confi-
dence, and who are shown by the record not
to have been the retained attorney of Gomez;
that he permitted a judgment to be taken
against the United States without argument,
or the production of proof to establish the
validity of the claimant s right to the land, by
sayin? to the court, in his official character,
that the United States had no objection to the
confirmation of the claim. And it is estab-
lished by the record itself that no appeal has
been given to the United States by the court
below. Mr. Ord admits that he relies upon the
declaration only of the person to whom he con-
fided the order which he drew for an appeal,
that it had been granted by the court.

Under such circumstances, we conclude that
no appeal had been granted ; that the cause was
not before us when the appellee made his mo-
tion to docket and dismiss it.

A motion to docket and dismiss a cause from
the failure of the appellant to file the record
within the time required by the rule of this
court, when granted, is not an affirmance of
the Judgment of the court below. It remits
the case to the court to have proceedings to
carry that judgment into effect, if in the con-
dition of the case there is nothine to prevent it.
*That is for the consideration of the judge in
the court below, with which this court has
nothing to do, unless his denial of such a mo-
tion gives to the party concerned a right to the
writ of mandamus. The case is before us, also,
upon such a motion, but we do not consider it
upon the ground that this court had no juris-
diction of the case when it was docketed and
dismissed, and that the appellee had no right
to make that motion, under the rule of this
court. All that we shall now do will be to cor-
rect an irregularity in the order given by this
court in a case in which we believe it had no
jurisdiction, and because the circumstances of
it disclose that the judgment in the court below
had been obtained by contrivance, and with the
consent of the district attorney, in violation of

his obligations to the United States, from wLich
he necessarily anticipated a benefit, being then
owner of half the land in controversy.

In vacating the order for the dismission of
the case, and recalling the mandate, we do no
more than to correci a proceeding improvi-
dently allowed by the court, under a misrepre-
sentation to it of the actual condition of the
cause in the court below. Orders of the same
kind for misrepresentation have often been
made and allowed. W e cite two cases from the
EngUsh reports. In SUwart v. Agnev, In
Shaw's Reports, it was held to be incom-
petent to repeal a case formerly argued, and
on which judgment had been pronounced by
the House of Lords, but that the judgment
might be amended on a point in which no de-
cision had been given by the court of session,
and on which no argument had been had,
through misrepresentation stated in the House
of Lords by the party against whom the judg-
ment was pronounced. 1 Shaw, App. Caa.. 41?.

In Ex parte White v. Courtenay, 4 H. of L.
Cas., 818, it was ruled upon petition that a
judgment of the house given on appeal cannot
be reversed; but when such appeal and judg-
ment have been obtained by suppression and
misrepresentation, the house will afterwards
discharge the order granting leave to appeal,
and the order constituting the judgment thereon.

Much was said in the argument of this
motion concerning declarations and a corre-
spon4ence of the Attorney-General in relation
to an appeal having been taken in the court
below for the United States. It matters not
what they were, or how the attorney treated
the matter, if he was deceived as to the actual
fact of an appeal having beeh allowed. If it
turns out to be that it had not been, any ad-
mission to the contrary cannot affect the United
States.

Since the case was argued, the counsel for
the claimant, with the consent of the Attorney-
General . has placed before us an affidavit made
by Mr. Ord, in explanation of his conduct in
the trial of the cause in the district court, em
bracing his connection with Gk>mez, and his
purchase from him of half of the land in contro-
versy. We believe it to be proper to gire him
the benefit of his own narrative and, therefore,
shall direct his affidavit to be printed in the
forthcoming volume of the reports of this term
of the court, with this opinion. (See Appen-
dix to this volume.)

We direct that the order for docketing and
dismissing this cause shall be vacated, and that
the mandate which followed it shall be recalled.

The motion of \he Attorney- GenercUfor $uch
purpose is granted,

8. C.-l Wall., 600 : 3 Wall., 762.
Clted-1 Wall., 606 ; 3 WaU., 761-767.

THE STATE OF ALABAMA, Compt,,

THE STATE OP GEORGIA.

(See 8. C, 28 How., 50&-515.)

Cession to the United States by Georgia — e^ent
tff—Uns of, on Chattahoochee Biter — namgaHo^
ofriver.

By the contract of cession between the (jQlted
States and Oeoryla, Georgia ceded to the United

M U.S.

1859.

Alabama y. Qbobqia.

50JH}15

States all of her lands west of a line begrlnnlnir on
the western bank of the Chattahoochee River where
the same crosses the boundary line between the
United States and Spain, running* up the said Chat-
tahoochee River and along the western bank there-
of.

This language implies that there is ownership of
soil and jurisdiction in Oeorgla in the bed of the
River Chattachoochee, and that the bed of the river
is that portion of its soil which is alternately cov-
ered and left bare, as there may be an increase or
diminution in the supply of water, and which is
adequate to contain it at its average and i^ean stagre
during the entire year, without reference to the
extraordinary freshets of the winter or spring, or
the extreme droughts of the summer or autumn.

The western line of the cession on the Chattahoo-
che^River must be traced on Uie water line of the
acclivity of the western bank, and along that bank
where that is defined ; and in such places on the
river where the western bank is not defined, It must
be continued up the river on the line of its bed, as
that is made by the aven^re and mean stage of the
water as expressed in the conclusion of the pre-
ceding paragraph.

By tuA contract of cession, the navigation of the
river is free to both parties.

Arffusd Dec. 14, 1869, Bedded May 1, 1860.

THE bill in this case was filed in this court,
tinder its original Jurisdiction, by the State
of Alabama against the State of Georgia, for
the purpose of ascertaining the boundary line
between said States.

The facts involved in the case sufficiently ap-
pear in the opinion of the court.

MeMTB. E. S. DargpaA, P. PhilUpps and

Belser, for complainant:

The object of the bill is to ascertain and fix
the precise line that separates Alabama from
the btate of (Georgia.

The decision in the case of Howard Y.lrtgerioU,
18 How., 881, does not fix the line with such de-
gree of certainty as to enable either State, to say.
without controversy, here is the limit of my Jur-
isdiction. For this purpose this bill is filed.

The legal question depends upon the con-
struction of the compact or deed of cession by
which Georgia ceded to the United States her
right and Jurisdiction to the territory that now
forms the State of Alabama, north of the 81st
degree north latitude. The particular words
are. "beginning on the western bank of the
Chattahc^hee River, where the same crosses
the line between the United States and Spain,
running thenee up said River Chattahoochee and
along the western bank thereof,'' &c.

To fix the precise point let us commence at the
be^nning.

On the western bank of the Chattahoochee
River, where the same crosses the line between
the United States and Spain, running thence
up said River Chattahoochee and along the
western bank thereof, &c.

This point must be on the bank and where
the river crosses said line. To fix the point,
therefore, we must find the line that separated
the United States from Spain at the time the
deed was executed. This line was the 8l8t de-
gree of north latitude, and the beginning point
was where the river crosses this line. There-
fore, we must go to the river on this line and
drive our beginning stake. This stake must be
at the river, but on the bank. Is it to be driven
at high or low water mark ? That question will
solve the case. For if at low water mark there
is nothing which will Justify diverging from
low to high water in our ascent up the river,
und € conoersOf if we are to begin at high water

Bee d8 How.

mark, taking the deed for our guide, we can-
not fix this stake at any point other than at the
usual or common low water mark; for it would
be unreasonable to suppose that the parties to
the deed of cession contemplated either very
high or very low water. They meant the river
in its usual or ordinary state or condition, and
along the line of the river but on the bank in
the then condition of the river, they intended
the land should run.

If we are to look to the word "bank," we find
that this term, properly understood, will fix the
line at the same point. This means the rising
ground above low water mark, or ordinary low
water mark, and which is usually covered by
high water or freshets. True it is that at some
places the bank may be almost perpendicular,
and rise many feet above the highest flow of the
water; but such places are most usually and
aptly called bluffs.

Such being the meaning of the term, all must
see at once that it is an indefinite guide, when
we seek by it to fix on a precise point of lo-
cality ; for the term "bank of a river' may cover
more or less space; at some places it may be
but a few feet' at others it may cover a space
from fifty to a hundred yards.

Yattel, pp. 268, 264.

"If the terms used by the contracting parties
be vague or indefinite, or if thev are susceptible
of a more or less extended signification, we
should look to the nature of the things to which
these terms relate, and presume the intention
of the parties to be in accordance with reason
and equity."

I assert that locating the line at high water
mark would be detrimental to Alabama and
without benefit to Georgia, because on the banks
of the Chattahoochee nave sprung up towns
and villages, and the spaoe between high and
low water mark is used for landings, <kc. If
Alabama lias no jurisdiction over this space, she
cannot punish for crimes or offenses there com-
mitted, and it must be done by Georgia. This
would be alike inconvenient to G^rgia and
prejudicial to Alabama; hence the convenience
of the parties, as well as reason and equity,
designate the line of low or ordinary water as
the line intended by the parties.

Edndly v. Anthony, 5 Wheat., 874.

The case of Howard v. IngeraoU, 18 How.,
881, I do not conceive to be an authority upon
the question presented in this case. The court
were unanimous in reversing that case, but the
opinion settles nothing as regards this.

[The following propositions and authorities
were also given by the counsel for the com-
plainants:]

By the common law rule, the riparian owners
of land have the center of the river as their
boundary, where the river is not navigable.
Rivers not navigable are those not affected by
the ebb and flow of the tide.

Hendrick v. Cook, 4Ga., 242; BuOockY. WU-
aon, 2 Port. , 486 ; iSi; parte Jennings, 6 Cow. , 528.

To limit this general right of ownership, there
must be a clear and distinct reservation. If
this is left in doubt, the general right will prevail.

Deerfieldv, Arms, 17 Pick., 42; Morgan v.
Beading, B Sm. & M.. 405; Middleton v. hitch-
ard, 3 Scam., 521; Yatt. Law Nat., 121.

The "shores " and " banks" have the same
significance. Tlie former applies to that por-

567

605-515

SUFBBMB COTTBT OF TBB UNITED StATBA.

Dec. Term,

tion of a river where the tide ebbs and flows;
the latter, to the portion of the land between
high and low water mark, where the tide does
not ebb and flow.

Starr V, Chtid, 30 Wend., 152; 4 Hill, 876;
Arnold v. Mundy, 1 Halst.. 1.

To exclude the general right of the riparian,
it 18 not sufficient to describe a line " running
down the stream by certain courses and dis-
tances," if they are not marked on the ground,
nor by the designation of marked lines or mon-
uments, standing on the "margin of the stream/'

CoekreU v. JJ^Ouinn, 4 Mon., 64; Bruce v.
Taylor, 2 J. J. Marsh, 161; OM SpringB ▼.
ToUand, 9 Cush., 495; CoowH v. 0' Conner, 8
Watts, 470.

The mere description of a boundary as on,
or to, or by a ' *bank," will not exclude a stream,
any more than the boundary on the margin of
a stream.

Ang. Wat., 22; Bz Parte Jennings, 6 Cow.,
586; Lamb v. JHekete, 11 Ohio, 314.

Having regard to the parties to the grant, and
the use to which the granted premises were to
be applied, the construction must be the same
as if the lands were described as lying to the
west of the river.

HamUy v Anthony, 5 Wheat., 874; Garner* a
case, 8 Grat., 655.

Act of Congress, 7th April, 1798.

MeesrB. Charles J« McDonald* C. C.
Gibson and L. Stevens, for the defendant.

After stating the case substantially as the
complainants' counsel stated it, the counsel said :
Georgia contends that there is no room for in-
terpretation, and that the lanfua^e taken in its
usual, common sense, is intelligible and well
understood, and cannot be made plainer by any
iuterpretation.

It is respectfully contended that these articles
are to be acted upon by this court and consid-
ered in the saihe light as independent sover-
eignties ought rightfully to act upon and regard
them, in deciding for themselves under the law
of nations. It is a great and leading maxim of
the law of nations, that it is not permitted to
interpret what has no need of interpretation.

Valtel, II., ch. 17, sec. 268.

Counsel referred to the dictipnaries of Walk-
er and Webster as to the meaning of the word
**bank." The language used imports that the line
through the entire distance over which the con-
troversy extends, is cm the bank of the river, on
its surface, and that the bank supports it; and
that because, for a part of this aistance, the
bank is inundated at times, while for the bal-
ance, the water never reaches its summit, does
not vary the case. The bank is there, and the
line is on it, unmoved by floods or ebbs. Every
bank must have a lower margin, a side and a
summit, and it follows that an object placed on
the bank can be neither on its lower margin nor
on its side, but on its summit. The bank of a
river is tliat outer bed line so marked b^ the
running of the water of the river that " it re-
(juires no scientific exploration to find or mark
it out. The eye traces it in going up or down
the river in any stage of the water. "

Howard v. IngerSoU, 18 How., 881.

This outer bed line most usually distinguishes
itself by an acclivity rising above aud from the
well marked bed of a nver, readily discerned by
the eye from the appearance and condition of

i^S8

the soil, and in the meaning of the terms of tbi«
cession, most clearly, aline "on" and "along,**
this bank,is upon the most elevated part or place
of that acclivity.

But it is contended that the word " bank" has
another meaning, which would place it on the
margin of the stream when from the drooffht it
had receded to its lowest point ; or that the hank
of the river is made the boundary by the articles
of agreement, and not a line of the bank. As
such a pretension is made, we must seek for
what was probably the intention of those who
drew up the agreement.

Vattel, II. ch. 17, sec. 270.

It is to be presumed that superfluous words
are never used in such treaties; but if the con-
struction contended for by Alabama be correct,
the following words are without meaning:
" of a line beginning on the western bank of,'*
and " alon^ the western bank thereof;" for, by
simple ceding all the jurisdiction and soil west
of Chattahoochee River, the territory west of the
river would have been ceded, and no psrt of the
river. It could never have been the intention of
the parties, therefore, that the line should run
along on the low water mark of the river.

Counsel then referred to the Constitution of
Georgia, 1798; the Act of the Legislature of
Georgia, February, 1799, empowering certain
commissioners to sell to the United States all or
any part of the territorjp^, &c., &c., and the Act
of the succeeding session of the Legislature,
appointing an additional conmiissioner, as sus-
taining his view that the State of Georgia never
intencfed to relinquish any part of its right to
the jurisdiction of the Chattahoochee River.

The Government of the United States in this
transaction was not obtaining a cession from a
stranger. That government held nothing in
antagonistic interest with Georgia, could not
covet aught of Georgia she did not will to pass,
nothing that did not comport both with her in-
terest and dignity to code. It could not have
entered into the purposes of the United States
to accept such a grant as this, that should ever
receive "an extensive interpretation. '' Clearly
the United States did not purpose to become
either the sole or joint owner, with Georgia^ of
an^r part of the Chattahoochee River, luid we
claim as a just conclusion in the consideration
of |this cause, upon well established principles,
that it was the duty of the United States to have
explained herself clearly and fully, and to have
inserted in the cession siich terms as would have
fully notified Georgia that it was the purpose of
the United States Government to acquire** ju-
risdiction and soil," in thai part of the bod of ihe
Chattahoochee River that lies west of the low
water mark of the river.

Vattel, IL ch., 17, sec. 245.

It is a sufficient repljf to the claims set up in
this bill, in behalf of the citizens of Alabama
living upon and owning the lands adjoining the
Chattahoochee River, tliat if ciiizcos live upon
the soil of Georeia, their allegiance is to Georgia,
and she holds herself amply able and always
ready to protect them in all that might be prej-
udicial to them.

Mr. Justice Wayne delivered the opinion of
the court :

This case involves a question of boundary
between the States of Alabama and Georgia.

«4 IJ.&

1859.

Alabjjul y. Geobgia.

605^15

Alabama claims that its boundary commences
on the west side of tlie Chattahoochee River at
a point where it enters the State of Florida;
from thence up the river along the low water
mark, on the western side thereof, to the point
on Miller's Bend, next above the place where
Uchee Creek empties into such river; thence in
a line to Nickajack. on Tennessee River.

Georgia denies that the line intended b^ the
cession of her western territory to the United
States runs along the usual low water mark of
the perennial stream of the Chattahoochee
River, but that the State of Georgia's boundary
line is a line up the river, on and along its west-
ern bank, and that the ownership and juris-
diction of Georgia in the soil of the river ex-
tends over to the water line of the fast western
bank, which, with the eastern bank of the river,
Diakf s the bed of the river.

The difference between the two states must
be decided by the construction which this court
shall give to the following words of the con-
tract of cession : " West of a line beginning on
the western bank of the Chattahoochee River,
where the same crosses the boundary, between
the United States and Spain, running up the
said river and along the western bank uereof."

In making such construction, it is necessary
to keep in mind that there was by the contract
of cession a mutual relinquishment of clainos
by the contracting parties, the United States
cedmg to Georgia all its right, title, &c. , to the
territory lying east of that line, and Georgia
ceding to the United States ail its right and
title to the territory west of it.

We believe that the boundary can be satis-
factorily determined and run in this suit, from
the pleadings of the parties, notwithstanding
their difference as to the locality and direction
of it on the Chattahoochee River.

Georgia is interrogated in certain particulars
in the bill, which the complainant thinks will
produce answers illustrative of the right of
Alabama to the boundary which is claimed.
Georgia answers them separately, having pre-
viously given a correct and literal copy of the
contract. It is as follows: ''The State of
Georgia cedes to the United Slates all the right,
title and claim, ^hich the said State has to
the jurisdiction and soil of the lands situated
within the boundaries of the United States
south of the State of Tennessee, and west of a
line l)effinning on the western bank of the Chat-
tahoochee Rtver, where the same crosses ^e
boundary line between the United States and
Spain ; running thence up the said River Chat-
tahoochee, and along the western bank thereof,
to the great bend thereof, next above the place
where a certain creek or river called Udiee
(bem^ the first considerable stream on the west-
ern side above the Cussetas and Coweta towns)
empties into the said Chattahoochee River;
thence in a direct line to Nlckajack, on the
Tennessee River; thence crossing the said last
mentioned river; and thence running up the
said Tennessee River and along the western
bank thereof, to the southern boundary line of
Tennessee."

In answer to the first question, Gleorgia ad-
mits what is alleged in the bill in relation to
the definition of the boundaries of the Territory
of Alabama by an Act of (^ongress, passed in
1817, and the subsequent grant of admission of

See 23 How.

the State of Alabama into the Union with the
same boundaries in the year 1819; and the con-
clusion from it is, simply, that the eastern
boundary line of Alabama is the western bound-
ary line of Georgia, but that, so far as that line
runs along the western bank of the Chattahoo-
chee River, Georgia denies that it runs along
the usual or low water mark; but, on the con-
trary, Georgia contends that it runs along the
western bauK at high water mark, using high
water mark in the sense of the highest water
line of the river's bed ; or, in other words, the
highest water line of that bed, where the passage
of water is sufficiently frequent to be markeid
by a difference in soil and vegetable growth.

(Georgia also answers affirmatively the other
interrogatory in the bill with the same qualifi-
cation, that what she claims is a right to exer-
cise jurisdiction over all lands up to the water
line of the western bank of the river's bed.

Gkorgia also says, that while she regards the
description of the banks of the river given in
the bill as highly drawn, she admits it to be
more applicable to the southern part of the
bank than to that part of it sixty or seventy
miles above the thirty-first degree of north lat-
itude. It is admitted that in some places the
banks are flat, but that in other places, espe-
cially in >he upper portion of the river, the
bauKS are generally steep and well defined, so
much as to be familiarly known as the "Bluffs
of the Chattahoochee ;" and that the banks of
the river in a number of places along the divid-
ing line between the two States are low and flat,
and that in freshets the water spreads as far as
half a mile bevond the line to the west, and in
a few places further than the western line of
the river's bed, over low lands, which Georgia
does not claim to be under its jurisdiction.

These declarations and admissions upon the
part of €^rgia simplify the controversy, and
narrow it to the claim oi the respective parties,
as heretofore set forth.

The contract of cession must be interpreted
by the words of it, according to their received
meaning and use in the language in which it is
written, as that can be collected from judicial
opinions concerning the rights of private per-
sons upon rivers, and the writings of publicists
in reference *to the settlement of controversies
between nations and states as to their owner
ship and lurisdiction on the soil of rivers within
their banks and beds. Such authorities are to
be found in cases in our own country, and in
those of every nation in Europe.

Woolrych defines a river to be a body of
fiowing water of no specific dimensions — larger
than a brook or rivulet, less than a sea — a run-
ning stream, pent on each side by walls or banks.

Grotius, ch. 2, 18, says a river that separates
two jurisdictions is not to be considered barely
as water, but as water confined in such and such
banks, and running in such and such channel.
Hence, there is water having a bank and a bed,
over which the water fiows, called its channel,
meaning, by the word '*cliannel," the place
where the river fiows, including the whole
breadth of the river.

Bouvier says banks of rivers contain the river
in its natural channel, where there is the great-
est fiow of water.

Vattel says that the bed belongs to the owner
of the river. It is the running water of a rive ^

^9-255

SUPRBMK COUBT OF THB UlOTBD StATBB.

D£c. Tkric,

that makes its bed; for it is tliat, and that only,
which leaves its indelible mark to be readily
traced by the eye; and wherever that mark is
left, there is the river's bed. It mav not be
there to-day, but it was there yesterday; and
when the occasion comes, it most and will —
unobstructed — ^again fill its own natural bed.
Afcain, he Eays, the owner of a river is entitled
to its whole lied, for the bed is a part of the river.

Mr. Justice Story, in l%oma9 v. Hatch, 8
Sumn., 178, defines shores or flats to be the
space between the margin of the water at a low
stage, and the banks to be what contains it in
its greatest flow; Lord Hale defines the term
"shore" to be synonymous with flat, and substi-
tutes the latter for that expression. Mr, Jtutiee
Parker does the same, in Siarer v. Freeman, 6
Mass., 436, 489.

Chief Justice Marshall says the shore of a river
borders on the water's edge; and the rule of
law, as declared by the court in 5 Wheat., 879.
is, that when a great river is a boundary be-
tween two nations or states, if the original prop-
erty is not in either, and there be no convention
about it, each holds to the middle of the stream.

Virginia, in her deed of cession to the United
States of the territory northwest of the Ohio,
fixed the boundary of that State at low water
mark on the north side of the Ohio;»and it re-
mains the limit of that State and Kentucky, aa
well as of the States adjacent, formed out of
that territory. 8 Dana (Ey), 278, 279 ; 5 Wheat. ,
878; Code of Virginia, 1849. pp. 49, 84; 1 St.
Ohio, 62. By compact between Virginia and
Kentucky, the navigation is free. A Tike com-
pact exists between New York and New Jersey,
as to the Hudson River and waters of the Bay
of New York and adjacent waters.

Webster's definition of a bank is a steep de-
clivity rising from a river or lake, considered so
when descending, and called acclivity when
ascending.

Doctor Johnson defines the word "bank" to be
the earth arising on each side of a water. We
say properly the shore of the sea and the bank
of a river, brook, or small water. In the writ-
ings of our English classics, the two words are
more frequently used in those senses; for in-
stance, as when boats and vessels are approach-
ing the shore to communicate witA those who
are upon the banks.

Bailey, in his edition of the Universal Latin
Lexicon of Facciolatus and Forcellinus, says
that ripa. the bank of a river, is extremitcte
terra quod aqua aUuitur et proprie dicitwr de
flumine; ut litus de ma/re, nam hoc depreesum
est declive ataue humUe, ripa altior fere est prcs-
ruptior; ana again, ripa recte definUur id quod
flumen continet, naturcUem vigorem eursus sui
tenens.

Notwithstanding that there are diflferences of
expression in the preceding citations, they all
concur as to tfhat a river is: what its banks
are; that they are distinct from the shore or
flat, and as to what .constitutes its channel.

With these authorities and the pleadings of
this suit in view, all of us reject the low water
mark claimed by Alabama as the line that was
intended by the contract of cession between
the United States and Gteorffia. And all of us
concur in this conclusion, maX by the contract
of cession, Georgia ceded to the United States
all of her lands west of a line beginning on the

600

western bank of the Chattahoochee River where
the same crosses the boundary line between the
United States and Spain, running up the said
Chattahoochee River and along the western
bank thereof.

We also agree and decide that this language
implies that there is ownership of soil and juris-
diction in Georgia in the bed of the River Chat-
tahoochee, and that the bed of the river is that
portion of its soil wliich is idtemately covered
and left bare, as there mav be an increase or
diminution in the supply oi water, and which
is adequate to contain it at its average and mean
stage during the entire year, without reference
to the extraordinary freshets of the winter or
spring, or the extreme droughts of the summer
or autumn.

The western line of the cession on the Chat-
tahoochee River must be traced on the water
line of the acclivitv of the western bank, and
along that bank where that is defined; and in
such places on the river where the western bank
is not defined, it must be continued up the river
on the line of its bed, as that is made bv the
average and mean stage of the water, as that is
Sxpreased in the conclusion of the preceding
paragraph of this opinion.

By the contract of cession, the navigation of
the river is free to both parties.

It was accordingly ordered, a^j^dged and
decreed by this court, that the bill of eompUuni
he dimissed, and that each party pav ite own
costs in this court; and it is further ordered by
this court, tliat the clerk do forthwith send to
the Executive of each of the aforegoing States
a certified copy of this decree.

ated~ll WaU., 55.

THE UNITED STATES, Appt,,

ELLEN E. WHITE. Administratrix of
Charles Whttb, Deceased.

(See 8. C.^ 23 How., 249-256.)

Lands— gotemment vdU not litigate rights of
cofUesting claimants — necessary parties.

Where the case Involved the title of HiraDda,
as contradictory to the title of Ortega ; held, that
the United States officers are not bound to settle
this dispute between these parties in these proceed*
ings. Nor should either party be permitted to carry
on their litigation, by assuming to act for the gov-
emment.

Nor can this court be thus compelled, on an ap-
pea. bv the Attorney-General, to become the arbi-
ters of a dispute In which the government has no
concern.

The Act of Congress (Sd March, 1851, seofloB 13^,
points out the mode in which oontastlng claimants
may litigate their respective rights to a patent
from the government.

Instead of an appeal to this court to settle the
rights of M. in a proceeding in which be is no partr.
the claimants under him, if there be any, should
proceed in the mode pointed out by the Act.

Decree of the District Court reversed and set
aside, and the record remitted without intlmatiag
an opinion as to the validity of the grant to O.

Argued Feb. 1, 1860. Decided May 4, 1S60,

APPEAL from the District Court of the Unit-
ed States for the Northern District of Cali-
fornia.

ei U.S.

1859

United States v. White,

210-255

This case arose upon a petition filed before
the Board of Land Commissioners in Califor-
nia, by Charles White, for the confirmation to
him of a claim to a certain tract of land.

The Board of Commissioners entered^ decree
confirming the claim. The district court hav-
ing affirmed this decree, on appeal, the United
States took an appeal to this court.

The facts, upon which the decision in this
court rests, appear in the opinion of the court.

Mewrs. J. S. Black, Atty-Gen., and J. J,
Crittenden* for appellants.

Messrs. E. L. Goold, C. Cashing, V. E.
Howard, R. H. Gillet and P. Pfaillipe,

for appellee.

The argument, being confined to the evi-
dence, is not here given.

Mr, Jfutiee Grier delivered the opinion of
the court:

It is clear, from the evidence in this case,
that, as against the United States, either Ortega
or Miranda has a just claim to a confirmation
of his title to the tract in dispute. But whether
Ortega was landlord, and Miranda his tenant,
or which of the claimants has attempted to
overreach the other, are questions in which the
government has no interest. Th^ United States
officers are not bound to settle this dispute be-
tween these parlies in these proceedings. Kor
should either party be permitted to carry on
their litigation, by assuming to act for the gov-
ernment, and thus take the advantage of their op-
ponents, by fighting under its shield and at its
expense. The District Attorney of California
had neither interest nor authority to represent
Miranda in order to defeat Ortega; nor can this
court be thus compelled, on an appeal by the
Attorney- (General, to become the arbiters of dis-
putes in which the government has no concern.

The patent, issued in pursuance of the Act of
Congress, which authorizes these proceedings,
is conclui^ive only between the United States
and the claimants. It does not affect the in-
terest of third parties.

The Act of Congress (8d March. 1851. section
13) points out the mode in which contesting
claimants may litigate their respective rights to
a patent from the government.

Instead of an appeal to this court to settle
the rights of Miranda in a proceeding in which
he is no party, the claimants under him. if
there be any, should proceed in the mode point-
ed out bv the Act, which provides: "That if the
title of the claimant to such lands shall be con-
tested by any other person, it shall and may be
lawful for such person to present a petition to
the district judge of the United States for the
district in which the lands are situated, plainly
and distinctly setting forth his title thereto, and
praying the said judge to hear and determine
the same; a copy of which petition shall be
served upon the adverse party, thirty days be-
fore the time appointed for hearing the same.
And it shall ana may be lawful for the district
judge, upon the hearing of such petition, to
grant an injunction to restrain the party at
whose instance the claim to the said lands has
been confirmed, from suing out a patent for the
same until the title thereto shall have been final-
ly decided; a copy of which order shall be trans-
mitted to the Commissioner of the Qcncral

Land Office : and thereupon no patent shall issue
until such decision has been made," &c.

It appears from the record that Valentine,
who purchased the title of Miranda at sheriff's
sale, had filed his claim before the Board of
Commissioners for confirmation, and afterwards
withdrew his petition Now, if Miranda or his
assignee makes no claim; if he admits the ten-
ancy, and does not allege that Ortega has fraud-
ulently overreached him, the government sure-
ly has no right to claim that the land shall be
considered as part x)f the public domain. It
cannot set up Miranda to defeat Ortega, or the
contrary, admitting, as it must, that either of
them can show a claim worthy of confirmation
in the absence of the other. Nor can third per-
sons be admitted to interfere, to use the claim
of one to defeat the other.

If the heirs or assigns of Miranda object to
the issuing of the patent to Ortega or his assigns
their rem^y is clearly pointed out. They can
have their rights tried where the witnesses are
known, where they may be examined ore tenus
before the court, or before a jury, if the court
chooses so to order. They have a far better
tribunal to settle this question than if they were
permitted to appeal to this court, to guess out
the truth from conflicting deposit ions.
. Now, if this court should enter a judgment
affirming that of the district court, it would ap-
pear as if we had decided the title of Ortejs^a to
be superior to that of Miranda, and that Miran-
da was the tenant of Ortega. This we are un-
willing to do : for, if there be bona fide claim-
ants of the Miranda title, such a judgment
might seem to conclude them. Nor can we re-
verse the judgment, for this would imply that
we considered Miranda had the better title, and
that he Or his assignees might be justified in at-
tempting to get the judgment of this court in
their favor, in this oblique and irregular man-
ner, under the protection of the Attorney-Gten-
eral.

We have concluded, therefore, to remand the
record Ui the district court, with directions to
suspend further proceedings till the heirs or as-
signs of Juan Miranda, if they see fit so to do,
may have an opportunity to contest the claim
under Ortega, according to the provisions of the
13th section of the Act of Bd March, 1861,
entitled "An Act to ascertain and settle the
private land claims in the State of California,"
and have such further proceedings as to justice
and right may appertain.

And now, to wit: May 1, 1860, the court
having reconsidered the opinion and order be-
fore made in this case, do now order and ad-
judge that the decree of the district court in
favor of the appellees be reversed and set aside,
and the record remitted for further proceedings
in the case.

We do this that the district court may not be
trammeled in their future consideration of the
case on all its merits, but without intimating an
opinion as to the validity of the grant to Anto-
nio Ortega. It is due to the Attomcy-Gkneral to
say that, on the argument of the case, he chal-
lenged this grant as fraudulent; and it is be-
cause we do not think the whole evidence on
that point was fully developed on the former
trial below, that this order is made.

Hce da How.

U. S., Book 16.

Cited-l- Black., 502; 1 Sawy., 583.

561

287-809

SUFBBME COUBT OF THB UNITBD StaTBS.

Dec.

BBNJAMIN HANEY, CHARLES OGDEN
Am JOHN TRENCHARD. LibU, and

AppU, ^

THE BALTIMORE STEAM PACKET COM-
PAKY, Owners of the Steamers Louisiana
AND Georob W. Russell.

(See S. C, 23 How., 287-300.)
CoUmon — rules of navigation — lookout

Collision between steamboat and schooner.

The schooner kept on her course ; the steamer
did not diverge from her course till within ten
secondfi or less of a colli8ion, and then the order on
the steamer was to starboard the helm, instead of
porting it, in contravention of tbe rules of naviga-
tion.

The steamer had a right to pass on either side,
but It was her duty to keep clear and give a wide
berth to the sailing vesftel ; having neglected this
duty till the danger of a coUisitm was imminent,
sucn a movement only increased tbe danger of
a collision.

Steamers navigating in the thoroughfares of
commerce must have constant and vigilant look-
outs stationed in proper places on tbe vessels.

Elevated positions, such as tbe hurricane deck,
are not so favorable situations as those on the for-
ward deck, near the stem.

ArguM Apr, B6, 1860, Decided May 4, 1860,

APPEAL from the Circuit Court of the Unit-
ed States for the District of Maryland.

The libel in this case was filed in the District
Court of the United States for the District of
Maryland, by the appellants, to recover dam-
ages resulting from a collision. The district
court entered a decree in favor of the libelants.
This decree, on appeal, was reversed by the
circuit court, and a decree entered dismissing
the libel ; whereupon the libelants took an ap-
peal to this court.

A further statement of the case appears in
the opinion of tlie court.

Messrg, Wm. Mead Addison and R. R.
Battee* for appellants:

1 . It is the right and dutv of sailing vessels
when meeting steamers, to liold their course,
and of the steamers, to give way to them.

St. John V. Paine, 10 How., 588; The Oregon
V. Boeca, 59 U. 8. (18 How.), 572.

2. The schooner, from the time the steamer
hove in sight until a moment or two before the
collision, steadily held her course. The answers
of the defendants; the evidence of the witnesses
for the defense, and the evidenqp of the libel-
ants, all concur in this; and there is not a wit-
ness who alleges the contrary.

3. It was the right of the schooner to change
her course, when her continuing to hold it
would have caused her to be run down.

N. T. and Liverpool U. 8. Mail SUamehip
Co. V. RumbaU, 62 U. S. (21 How.), 872.

4. If the danger of being run down was im-
minent, and the schooner made a false maneuver
when a right one would have saved her, even
then then the steamer is responsible; for she
ought not needlessly to have run so close to the
schooner as to excite such well founded ap
prehensions of danger, as to have disturbed
the judf^i^ent of those in charge of her.

The Genesee Chief, 12 How., 444.

Vote.— CdUsUm ; right of ateam and sading vessels
'With reference Vyeach other, and invoMdng and meet-
ing. See note to St. John v. Paine, 51 U. S. (10 How.),

6. Tbe account of the disaster set up in the
answer, and given by Captain Rassell and aeocmd
mate. Ward, is incredible, because it is impos-
sible it can be correct

6. The schooner, in att^npting to avoid tha
steamer, turned to the right, and thus con-
formed to the rule of navigation eBtablisbed
and promulgated by the Supreme Court, in tbe
case of The Oregon v. Boeea, 59 U. S. (18 How.),
572: The Friends, 1 W. Rob., 479.

7. The steamer violated said rule bv turning
to the left, and thereby caused the collision.

8. There was not on the steamer *' a trust-
worthy and constant lookout." ** whoee whole
business was to discern vessels ahead or ap-
proaching." The omission iB, prisna faeie, eri*
dence that the steamer is in fault.

The New York v. Bea, 59 U. 8. (18 How.), 225;
Genesee Chief, 12 How., 449; ChamberUUn v.
Ward, 62 U. S. (21 How.), 458: 10 How., 585.

The pretended lookout was stationed in the
pilot house, and not in the forward part of the
vessel, where he should have been.

Newton v. Stebbins, 10 How., 607; 81, John
V. PatVM, 10 How., 585: CJiamberUdn v. Ward,
62 U. 8. (21 How.), 571.

9. The person alleged to have been acting as
lookout, was not '* actually and vigilantly em-
ployed in his duty as lookout" (12 How., 459);
but was, in effect, the helmsman.

10. The fact that the steamer was engaged in
carrying the U. S. Mail, furnishes no excuse for
proceeding at a speed endangering the lives and
property of citizens.

The Sose, 2 W. Rob., 8; The Iron JhOee, 2
W. Rob., 885; Bogers v. The 8t. ChoHm, 60
U. S. (19 How.), 112.

1 1. In cases of collision between steamers and
sailing vessels, prima fade ** the steamer is
chargeable with fault. "The exception to
this rule must be clearly established by strcwg
circumstances, to excuse the steamer."

N. T. and Va. Steamship Co, v. Caldeneood,
60 U. S. (19 How.), 246; 27m Oregon v. Moeea,
59 U. S. (18 How.), 572.
Mr. Wm. Schley, for appellees:
In support of the decree of the circuit ooart,
the appellee respectfully insists:

1 . The change of the course of the schooner
was the proximate and only cause of the col-
lision ; and if such change had not been made,
the vessels would have passed each other in
safety.

2. The change of course on the part of the
schooner at the time and under the circum-
stances, was a gross and inexcusable fault.

8. The pilot house on the steamer Louiaiaiia
was the best position for the lookout on tbe
steamer; and there was no want of care and no
error of Judgment on board the steamer in this
respect.

Mr. Justice Orier delivered the opinion of
the court:

The appellants, owners of a schooner called
The William K. Perrin, charge in their libel
that between nine and ten o'clock of the even-
ing of 20th of February, 1858, as the schoono-,
laden with oysters, was on her way down the
Chesapeake oay, she was run into and sunk by
the steamboat Louisiana; that it was a bright
moonlight night, and the schooner, thouglt
of only forty-three tons burden and dei*|»ty

04 U.S.

1850.

Haivst ▼. Baltimore Stbah Packet Co.

887-809

laden, could be and was geen at the distance of
a mile.

The answer admits the collision and the
result of it. It admits, also, the schooner was
seen at the distance of two or three miles; that
the steamer was proceeding at the rate of four-
teen miles an hour, ** heading due north." and
the schooner holding her course nearly due
south. But it alleges, as an excuse, that while
the steamboat and schooner were meeting on

garallel lines, the schooner suddenly changed
er course and ran under the bows of the
steamer.

This is the stereotyped excuse usually re-
sort€*d to for the purpose of justifying a careless
collision. It is always improbable, and gener-
ally false.

There is not the usual conflict of testimony
in this case; for the single person on board of
the steamer who was able to give any account
of the collision, who acted as pilot, and by
whose want of vigilance and skill the collision
was caused, does not materally contradict, but
rather confirms, the testimony of the libelants.
The facts of the case are as follows:

The steamer Louisiana, of eleven hundred
tons burden and five hundred horse power. was
on her way coming up the wide bay of the
Chesapeake, steering a due north course, be-
tween nine and ten o'clock at night. The
small heavy-laden schooner is seen two or three
miles off, coming in an opposite direction.
The captain of the steamer (whose theory of
action appears from his own testimony to be,
that all small vessels are bound at their peril to
get out of the way of a large steamer carrying
the United States mail) although he had seen
the schooner, and knew that the vessels were
approximating at the rate of over twenty miles
an hour, retires to the cabin. It was his watch
and his duty to be on deck as officer of the
deck. He leaves on deck one man, besides the
colored man at the wheel, to act as pilot, look-
out, and officer of the deck. These two per-
sons constituted the whole *crew on duty, be-
sides firemen and engineers. This person, who
had to perform these treble functions, was the
second mate. His theory is, that the best place
for a lookout is in the pilot house, where, he
says, " I generally lean out of the window, and
have an unobstructed view." Accordingly, as
pilot, he remained in the pilot house to mreot
the steersman; and as lookout, he occasionally
leaned out of the window.

The result shows the value of this theory
with regard to the place and person proper for
a lookout. The schooner kept on her course,
as the rules of navigation required her to do, on
the presumption that the steamer would diverge
from her course so as to leave a free berth to
the schooner, as it was the duty of the pilot of
the steamer to do. The boats were approximat-
ing at the rate of six hundred yards a minute,
or one hundred yards in ten seconds. A slight
turn of the wheel of the steamboat, if given in
due season, would have left a wide mrth for
the schooner. But this, by his own account,
was neglected bv this pilot* and lookout, till
within ten seconds or less of a collision ; and
then the order was to starboard the helm, in-
stead of porting it. in direct contravention of
the rules of navigation.

The steamer, It is true, had a right to pass

8ee 33 How.

on either side, and it was her duty to keep
dear «nd give a wide berth to the sailing ves-
sel; but haviiw neglected this duty till the
danger of a collision was so imminent that it
was prdsable the schooner would be making
some movement to avoid destruction, such a
movement only incrrased the danger of a col-
lision.

The man at the wheel of the schooner had
his orders to keep steady on his course south.
It is proved, without contradiction, that this
order was strictly complied with till the pilot
or steersman heard the noise of the steamer's
wheels; and being warned of her approach by
the lookout, he looked under the boom, and
discovered the steamer almost on him; when,
in order to save his own life and the lives of
the crew, he ported his helm and received the
blow on the larboard side the schooner, near
the stem, instead of the bow. The point of
collision confirms, beyond a doubt, this view of
the case.

The hypothesis set forth in the answer to ex-
cuse this collision, that the boats were passing
on parallel lines, three hundred yards apart,
and that, when within one hundred or one
hundred and fifty yards of passing each other,
the schooner turned round and run herself un-
der the bows of the steamer , is not only grossly
improbable in itself, but contradicted by the
testimony, and is a mathematical impossibility.

With this pregnant example of the value of
the theory of lookouts contended for in this
case, let us compare it with the rules estab-
lished by this court. Without referring to the
numerous cases, ttie. correct doctrine on this
sublect will be found laid down by Mr. Justice
Clifford, in delivering the opinion of this court
in Chamberlain v. mird, 21 Bow., 570:

*' Steamers navigating in the thoroughfares
of commerce must have constant and vigilant
lookouts stationed in proper places on the ves-
sel." They must *'be piersons of suitable ex-
perience, and actually and vigilantly employed
on that duty. " * ' In general, elevated positions,
such as the hurricane deck, are not so favor-
able situations as those more usually selected
on ^e forward deck, near the stem." ''Per-
sons stationed on the forward deck are less
likely to overlook small vessels deeply laden,
and more readily ascertain their exact course
and movement."

The entire disregard of these rules of navi-
gation by the steamer, and the consequent de-
struction of property, demonstrate their correct-
ness and utility.

In fine, we are of the opinion that the col-
lision in this case, and, destruction of the
sdiooner Perrin, was caused wholly by the
negligence and inattention to their duties of
the officers who navigated The Louisiana, and
that the steamboat should be condenmed to pay
Uie whole damage incurred by the said collision.

Let the decree of the drenUt court.reterHng the
decree of Mtf dieitrkt court y he reversed.

Mr. OhirfJiutice Taney* dissenting:
I dissent from the judgment of the court.
It is a case of collision on the Chesapeake Bay,
and involves principles and rules of decision of
great interest in the navigation of its waters,
where sailing vessels and steam vessels are con-
tinually meeting and passing each other in the

508

287-809

SUPBIBME COUBT OF THE UkITBD StATBS.

Disc. Term,

night as well as in the day. I think it my
duty, therefore, to state the principles of law
and the evidence in the case, upon which my
opinion has been formed.

The rules of law applicable to a case of this
desoription, as established by this court, I un-
derstand to be the following:'

1. The vessels, whether sailing vessels or
steamboats, must be manned and in charge of a
crew competent to navifrate them on the voyage
in which they respectively engaged.

2. It is the duty of each vessel to have a look-
out, acquainted with his duty, and faithfully
discharging it, and stationed at that part of the
vessel which will best enable him to see any im-
pending danger, and promptly warn the helms-
man of the point from which it is approaching.

3. It is the duty of a sailing vessel, when
meeting a steamboat, to keep on her course, un-
less she is prevented by the change or direction
of the wind; audit is the duty of the steam-
boat to keep out of her way, passing on the
starboard or larboard side, as the steamboat
may prefer.

4. £ach vessel has a right to act on the pre-
sumptiop that the other knows its duty, and
will act accordingly. But if the steamboat
fails to shape her course to avoid the sailing
vessel, in proper time and at a sufficient dis-
tance, the steamboat is answerable for the dis-
aster, although the collision may, in fact, have
been produced by an erroneous movement
made by the sailing vessel in the moment of
peril, and intended to avert the impending
danger.

5. The distance at which a steamboat should
pass must in some degree depend on the wind
and weather, and on the light or darkness
of the time and the size of the respective ves-
sels. And, in order to excuse an erroneous
movement on the part of the sailing vessel, the
proximity of the steamboat, her course and
speed, must be such that a mariner of ordinary
firmness, and competent skill and knowledge,
would deem it necessary to alter his course to
enable his vessel to pass in safety. But, in or-
der to justify this, the dangerous proximity
must be produced altogether by the steamboat.

These principles and rules of navigation are
distinctly laid aown in the cases of The OeneMe
Ghitf V. FUzhugh, 12 How., 461, and 7%e 2^. T.
& Liverpool U. 8. Mail 8t. Go. v. BumbaU, 21
How., 3iB3, 884, and have been recognized and
maintained by this court in many other cases
of collision between steamboats and sailing ves-
sels. It would be tedious, and is unnecessary,
to enumerate them, as they all affirm the same
rules of navigation.

I have stated them in separate propositions,
because it is of the first importance that they
should be clearly defined and understood. And
impartial justice requires that they should be
administered and enforced where they applv to
the sailing vessel, as well as to those propelled
by steam. Indeed, it is impossible for the
steamboat to perform its duty of keeping out
of the way at a safe distance, unless the sailing
vessel performs its duty bv keeping steadily on
her course when the wind will permit. And
those who intrust their property in sailing ves-
sels, or their cargoes to the care of persons igno-
rant of their duty, or incompetent in any other
respect, have no just right to ask that others who

o64

have coDunitted no fault should be oompeUed
to share in their loss.

Keeping in view these established laws of
navigation, I proceed to examine as briefly as
I can the testimony; and first, the conduct and
management of the schooner Perrin, the sul-
ing vessel.

The collision took place near the mouth of
the Rappahannock, at about ten o'clock on the
night of the 28th of February, 1858. It was a
moonlieht night, and a vessel under sail, with-
out li^ts, could be seen at the distance of
three or four miles.

The schooner was an oyster boat, of about
forty tons burden, and about sixty feet long,
and eighteen feet beam. She belonged to Phila-
delphia, and had obtained a cargo of oysters in
the Patuxent River, and sailed from the river
about two o'clock of the day above mentioned,
down the bay, for the capes of the Chesapeake,
bound for her home port. It was a cold night,
the wind from the northwest, a stiff breeze,
nearly fair, but coming rather from the west-
em land. The sails of the schooner were con-
sequently spread out on her larboard side-— that
is, on her eastern side, as she went down the
bay. She moved at the rate of six or sevea
miles an hour. Her crew consisted of Charte
Ogden, captain, and five other persons, includ-
ing the oystermen on board; and the latter,
when not dredging for oysters, assisted in nari
flratine the vessel.

^ At half past eight o'clock, on the night of the
disaster, the captain and all of the crew, except
the witnesses, William J. Miles and Charles
Cory, went below to sleep; and from that time
untU the collision, no one but these two men
were on deck, or assisted in any way to nari-
gate the vessel and, therefore, have no knowl-
edge of what led to the disaster.

In weighing the testimony given by theae
two witnesses, it must be borne in mind that
both of them have a direct interest ia the re-
sult of the case, and will share largely in the
damages that they may, by their testimony, r^
cover from the steamboat. Cory says, that two
thirds of the oysters belonged to Miles and him-
self, and Ogden, the captain, after one third
and t^e expenses were taken out. Each of these
witnesses, therefore, is giving testimony in his
own cause to support his own claim; and thej
are substantially parties prosecuting the suit,
although they appear on! v as witnesses in the
record. They may be admissible from neces-
sity. But it is a departure and exception to the
f general rules of evidence, long and well estab-
ished in courts of common law and equity, and
?:oes always strongly to their credit; and the
acts stated by such witnesses, as well as their
manner of stating them, are carefuUy scrutin-
ized bv courts of justice, in considering the
case. 'The wisdom and custom of the commoo-
law rule will, I think, be apparent when we ex-
amine the testimony of Cory and Miles.

Cork's account of himself is this: he has
been following the water as an oysterman four
years and a half, during the oyster season; and
on such occasions, when he is not dred^n^ for
oysters, it is a part of his duty to help to navigate
the vessel and to help to look out, and he is al*
ways in one of the watches. But he had never
before been down the bay below the PtetuxeBt
He was the lookout and the only one, in thi«

64 U. b.

1850.

Hakst y. Baltimobb St8am Packbt Co.

d87-80d

part of the voyage. He says he saw the steam-
f)oat when ahout three or three and a half miles
off; that he was walking on the larboard — ^that
is, the leeward and eastern side of the vessel,
and saw the steamboat between the night head
and fore shroud of ihe schooner; and she was
to the leeward, larboard and eastward; and
thAt, immediately upon seeing her, he said to
Miles, the helmsman, " hadn't you better keep
away?" and about five minutes afterwards,
asked him again, if he hadn't better keep away;
and receiving no answer to either Question, he
seems to have supposed that he had performed
his whole duty as a lookout; for he appears to
have made no further effort to communicate
with the helmsman, and to have taken no fur-
ther concern in the navigation of the vessel, be-
fore the collision happened.

It is evident from this testimony, given by
the witness himself, that he was utterly unnt
for a lookout, and performed none of his du-
ties. He was not at the bow or near the head
of the vessel, nor even on the windward side,
where the sails would not have obstructed his
view ahead, but was walking on her larboard
or leeward side, and must have been aft of the
foremast, as he first saw The Louisiana between
the night head and the fore shroud. This was
no place for a lookout, for the foresail and head
sails were directly before him, and made it im-
possible for him to see the bearing or distance
of any vessel approaching directly ahead, or on
her larboard or eastern bow. And although he
swears that he did, notwithstanding these ob-
stacles, see her to the leeward and eastward of
his vessel, he obviously contradicts himself,
when he immediately after states that he twice
advised the helmsman to alter his course more
to the east; for if he really thought the steam-
boat bore to the east of south, his advice to the
helmsman was to put to the schooner directly in
her way, instead of avoiding her; nor can the
slightest reliance be placed upon lus statement
that the steamboat was to the eastward, or that
the schooner was standing due south when he
first saw the steamboat, or that she did not
change her course until she luffed to the west
a moment or two before the collision; for he
had no compass before him; had never before
been in that part of the bay, and under such
circumstances could form no accurate Judg-
ment of the cardinal points of the compass, it
was simply impossible that he could know
whether the steamboat bore some points 16 the
east or west of south, or that his vessel was
heading due south, or two or three points to
the east or to the west of south; or whether she
did not vary in her course two or three points
as she was approaching the steamboat before
she changed directly to the west.

It would seem that he placed himself on the
larboard side under the lee of the mainsail to
shelter himself from the cold northwest wind,
and in that situation it is literally impossible
that he could know the precise course the
schooner steered, or the bearing of the steam-
boat when he first saw her, and as he ap-
proached her; and it is equally impossible that
be should have given the advice he did to the
helmsman, if he really thought the steamboat
bore east from the schooner.

The testimony of Miles, the only other mate-
rial witness for the libelants, will show that he

See 23 How.

was as unfit for a helmsman' as Cory was for a
lookout, and that the facts he states are as little
to be relied on.

He says he has been following the water as
an oysterman thirteen or fourteen years, and
accustomed to take the helm for the last four
or five years; and it does not appear that he
was ever before in that part of the Chesapeake
Bay; he was standing on the larboard side of
the vessel, the same side with the sails, with
his right hand on the helm, and from his posi-
tion could see nothing ahead without going
upon one knee, and looking under the mx>m ;
and when Cory told him there was a liffht ahead,
he looked unaer the boom , and saw The Louisi-
ana about one half or three quarters of a point
to the eastward of the schooner.

Now, when he saw the steamer approaching,
it was his duty, according to the repeated de-
cisions of this court, to stand by his helm, with
his eye on the compass, and keep the vessel
steadily in her course, and rely on the lookout
for information as to the approach and bearing
of the steamboat; his own course at t^ time,
he says, was due south.

But instead of doing this, he immediately
took upon himself the additional duty of look-
out, under circumstances that made it impossi-
ble he could perform either. He was on his
knee from a half to three quarters of an hour
before the collision took place, watching the
steamboat under the boom of his vessel. He
says, indeed, that he did not watch her all the
time, but watched his course; yet he tells us
the boom was only three or three and one half
feet from the deck and, therefore, in order to
look under it, he was obliged not only to go
on his knee, but to bring his head down to
within two or three feet of the deck ; and in that
posture, while watching.the steamboat,it was ab-
solutely impossible for him to know the exact
course he was then steering, or form a correct
judgment of the distance or bearing of the
steamboat, for the compass was hid from him
by the sides of the binnacle in which it stood,
and his view ahead, and on the eastern bow of
his vessel, obstructed by the foresail and head
sails, which were spread out on the same side.
And when he speaks of bearings and distances,
he speaks, necessarily, not by the compass, but
from vague conjectures, and states facts of
which he could have no certain knowledge,
and was not in a situation to form an opinion
upon which any reliance could be placed. He
admits that where he stood, with the compass
before him, he could not see The Louisiana,
and consequently could not see how she bore
by the compass.

Again; he says Cory was looking out at the
time of the collision, and was a competent
lookout; yet his own testimony shows that he
did not think so, nor places the slightest con-
fidence in him; for as soon as Cory reported
the steamboat in sight, he took upon himself
the duty of lookout, as well as helmsman, al-
though he was at the stem of the vessel, and
could see nothing ahead except under the
boom. And from the time The Ltouisiana came
in sight, he was so absc'ed in these double
duties, or confused and be 'Idered by the ap-
pearance of the steamboat, that he does not
appear to have remembered there was such a
person as Cory on deck; he asked no informa-

6G6

lte7-800

SUPRKHB CotJST 09 TKB tTlOTED StATBA.

Dec. Tbsx,

tion from him, and did not even hear him
when he twice advised^him to keep his veasel
off; yet Cory was standinff within a few feet
of him, with nothing but me mainsail between
them, and he had heard readily and distinctly
when he reported to him that the steamboat
was in sight.

He. says he kept his course due south. I
have already said he could not know the fact,
as a large portion of his time was passed in
watclung the steamboat, with liis head in a
position which made it impossible for him to
see his compass. And with his right hand on
the helm, and stooping low on the larboard
side to see under the boom, his right arm would
naturally and necessarily follow the moyement
of his body to the larboard, and draw tfaie tiller
with it, and cause the vessel from time to time,
with such a strong wind presnng on her main-
sail, to head towels the west, and edge nearer
and nearer to the due north line in which The
Louisiana was moving, and thus, by his own
incapacity and fault, produce the proximity
which so much alarmed him, and inaucedhim
suddenly to change his course to the west. It
is true, the lookout on board The Louisiana
says ^e appeared to be standing south, and
that he did not observe any change until she
suddenly luffed to the west But Captain Rus-
sell states, and every seaman knows, that you
cannot, in the night, determine the precise
course which an approaching vessel ahead is
steering: and cominff, as this schooner did,
with a free wind, she might frequently vary
from her general course, from time to time, one
or two points, for two or three minutes, and
the most vigilant lookout on thc^ steamboat fail
to discover if or observe it; yet. at the speed at
which she was going, she would, by the slight-
est movement of the helm to the larboard, or
the least relaxation of the hold of the helms-
man, head more to the west, and approach
nearer to the line of the steamboat, and increase
the danger of a collision.

Indeea. Miles admits that his vessel did vary
a little, but not enough, he says, to take her
from her course; he does not. however, tell us
how much she varied, nor what variance he
thinks necessary to take her from her course,
nor how long it continued, nor in what direc-
tion. It is obvious, from what he says of his
own position and movements, that every vari-
ation from her general course must have been
towards the west.

I do not think it necessary to comment
further on the evidence given by these two
witnesses. Testifying in the manner I have
stated, and under the Intiuence of a direct pe-
cuniary interest in the result, I cannot think
their statements would be entitled to any weight
against the steamboat, even if uncontradicted
by other testimony; but in all of its essential
parts it is contradicted by disinterested wit-
nesses who were on board of The Louisiana,
and I proceed briefly to state the testimony of
Captain Hussell, and Ward, the second mate,
who are the only two material witnesses on be-
half of the steamboat. The disaster happened
in the captain*s watch, during which the sec-
ond mate. Ward, was the lookout, and charged
with the running of the vessel ; the wheelsman
was a colored man, and could not, therefore,
be examined as a witness; but it is abundantly

566

proved tliat he was an experienced wheelsman,
and accustomed to perform that duty on sleam-
boats,and was fully competent and trustwofthy.

Captain Russell and the mate have for many
years been engaged in the navigation of steam-
boats up and down the bay, at all seasons of
the year; are both pilots of long experience,
and well acquainted with the dangers to be ap-
prehended, and are accustomed to meet and
pass vessels at all hours of the night and of the
day. Neither of them have any pecuniary in-
terest in the result of this controversy, and they
are both men of undoubted character for intel-
ligence and veracity.

It has indeed been said, that the answer of
Captain Russell to the libel, and his testimony
as a witness, contradict one another, and that,
on that account, credit ought not to be given
to his testimony; but I can see no discrepancy
between them. In his answer, he speaks in
general terms of the disaster and the causes
which led to it, and that is all that was proper
or usual to state in an answer. When examined
as a witness, he enters more minutely into the
circumstances, and mentions his momentary
absence from the deck Just before The Perrin
changed her course ti> the west, but there is no
contradiction or discrepancy in this: and it is
hardly just to a witness to select a detached
sentence from the answer, and another from
the testimony, to show an apparent contradic-
tion, when the two papers, read throughout,
are perfectly consistent with each other, and
substantially the same; and in both his answer
and his deposition as a witness he supports and
confirms the testimony of Ward, the lookout.
in every fact material to the decision of the
case. Ward ssys he was stationed in the wheel -
house, or pilot house, as the place is indiffer-
ently called; the house is about sixty feet from
the bow, upon the upper deck, and etevated
about twenty -five feet; he stood by the side of
the wheelsman on the larboard side of the
house, and the wheelsman on the starboard,
about four feet from him; and the compass
was in the wheel-house, in front of Uie wheels-
man.

It has been argued that the lookout ou^ht to
have been at the bow, and some passages in the
opinions of this court in former cases are relied
on to support this objection. But the language
used by the court must always be construed
with reference to the facts in the particular case
of which they are speaking, and the character
and description of the vessel. What is the
most suitable place for a lookout, is obviously
a question of fact, depending upon the construc-
tion and rig of the vessel, the navieation in
which she is engaged, the climate ana weather
to which she is exposed, and the hazards she ii
likely to encounter, and must, like every other
question of fact, be determined by the court
upon the testimony of witnesses — ^tbat is, upon
the testimony of nautical men of experienm
and judgment. It cannot, in the nature of
things, be judicially known to the court as a
matter of law. All that the law prescribes is,
the rule that the lookout shall be stationed
in that part of the vessel where he can moc4
conveniently and effectually discharge the duty
with which he is charged. And all of the ex-
perienced pilots who have been examined as
witnesses in this case, accustomed to the nari-

64 U.&

1850.

Hansy v. BALTiiiORB Stbam Packbt Co.

li-yT-SOd

gallon of the bay, well acquainted with the form
and construction of The Louisiana, unite in tes-
tifyinff that the place where Ward was sta-
tionedwaa the best and most suitable; and they
point out the serious disadvantages that might
arise from stationing him at the bow. TMre
can hardly be a rule of law which requires a
8teamlx>at to station a lookout in a place where
he cannot effectually perform his duty. In a
vessel propelled by sails, he is uniformly sta-
tioned at the bow, because, in any other part of
the vessel, his view ahead would be obstruct^
by the head sails and rigsing. But this reason
does not apply to steamboats constructed like
The Louisiana.

Taking it, therefore, as fully established by
proof, that Ward, the lookout, was competent,
and stationed in the proper place, I proceed to
state his testimony, which is as follows:

He saw the schooner when about three or
four miles off. The steamboat was heading a
due north course, and the schooner appeared
to be heading south, and bore bv the compass
north half east on the starboard (eastern) side
of the steamboat. When the two vessels ap-
proached within the distance of 300 or 400
yards, the schooner bore north one point east
on the starboard side of The Louisiana; and
when within about 150 yards of the schooner,
in order to give a wider space in passing, he
headed the steamboat north by west, which left
the schooner bearing two points east on her star-
board bow. He had just steadied his boat in
this course when he discovered that the schoon-
er altered her course, and was heading west
across the bay, and continued to hold that course
until the collision took place. The moment he
discovered that the schooner had chanced her
course, he ^ve the signal to stop and back,
which was instantly obeyed. But the vessels
came together before the headway of the steam-
boat was entirely stopped.

The testimony of this witness, supported as
it is by that of Captain Russell, can hardly be
impeached by such testimony as that which has
been eiven by such witnesses as Cory and Miles.

And I regard this as the true history of the
disaster, and of the movements of the vessels
by which it was produced.

The facts established by this proof, that the
schooner bore north half east when first seen at
the distance of three or four miles, and north
one point east when at the distance of about 800
yards, show that, from the causes I have before
mentioned, she had not maintained her course
due south during that time, but had been luf&ng
and edging to the west, so as to bring her near-
er and nearer to the due north line in which
the steamboat was steering; for, if they had ap-
proached each other in parallel lines, the schoon-
er would have borne more and more to the
cast, and would have been directly east when
they passed, and would, therefore, when within
800 yards, have borne more than one point to
the east of north. But even then, if she had
continued to hold her course due south, and
the steamboat had continued hers due north,
they would have passed in safety, but nearer,
indeed, than a steam vessel of the size of The
Louisiana ought to pass so small a vessel as the
oyster boat. But when the steamboat changed
her course one degree more to the west, it is
evident that they would have passed each other

See d8 How.

not only in safety, but at a convenient and suf-
ficient distance; for, it will be observed, that,
for the distance of one hundred and fifty yards
at which the steamboat changed her course,
she was proceeding slowly backing with ail the
force of her machinery, and with so much ef-
fect that her headway was nearly stopped when
they came in contact. This is proved , by the
character of the injury inflicted. It is true
that the side of the schooner was broken in,
and an opening made, through which the watei\
rushed in, ana filled and sunk her in a few
minutes. The witnesses for the libelants, who
examined the schooner at Norfolk after she had
been raised and carried into port, say that the
blow ** had hit the main beam across the break of
the quarter, and split it — knocked the knees out
from each side of it, and cut her down to light
water mark." But it did not even upset her.
Cory, indeed, says that her stem was driven
under the water. But Miles, who was at the
stern, does not support him. On the contrary,
he sa^s the blow threw him to the windward
(that IS, to the opposite side), and that he went
up the rigging of his vessel until he got on the
bow of the steamboat. He does not intimate
that he was in danger of being washed over-
board or plunged into the water. Now, with
the immense weight and size of TheLouisianIt,
coming stem on, against the broadside of the
comparatively slender and frail timbers and
planks of this little oyster boat, if the headway
of the steamboat bad not been very nearly
stopped before she struck the schooner, the in-
juiy inflicted must have been much greater than
that described by the witnesses, if she had
been moving at even one third of her ordinary
speed, she would unquestionably have buried
this little boat in the water, and passed over
her. These facts of themselves show that her
rate of speed for these 150 yards, taking it all
together, could not have averaged, at the out-
side, more than four or five miles an hour.

Now, the schooner changed her course to
directly west almost simultaneously with the
reversal of the engine of the steamboat, ap-
proaching her line of movement nearly at a
right angle, and was moving from east directly
west during the time the steamboat was passing
over this 150 yards. She was moving, also,
with equal or greater speed, for all of the wit-
nesses agree that she was sailing at the rate of
six or seven miles an. hour; and when she
changed her course to west, she was in full
headway, with all sails set, and must have main-
tained, during that time, at least very nearly
the speed at which she had before been sailing;
and this being the case, she must, in order to
bring the vessels into con tact, have passed nearly
the same distance to the west which the steam-
boat, while backing, had passed to the north —
that is, 150 yards; and consequently, if she had
held on her course, would have passed at that
distance, or nearly so, to the eastward of the
steamboat.

It has, indeed, been said that the collision
was immediate after the change of course by
the schooner, and the backing of the steam-
boat; and calculations have been presented to
show that it must have been so, l>ecau8e, from
the combined speed of the two vessels, taken
together, the 150 yards would be passed over
in a few seconds. But this argument has no

607

ftsi-^o^

Su^RKMlC COG&T OF THB tlKITltD StATlBS.

Dbc.

foundation in the evidence; for the steamer ^ns
not proceeding at her ordinary speed, but back-
ing all the way, and had nearly stopped when
she came in contact with the schooner. And
the latter vessel was not meeting her from an
opposite direction, but standing directly across
her path, leaving the steamboat to pass over
these 150 vards, and at the reduced rate of
speed of which I have spoken, before the ves-
sels could come together.

In reference to this pari; of the evidence, it
is, perhaps, hardly necessary to notice the evi-
dence of Miles, who says they were within
thirty yards of the steamboat when he changed
his course to the west. No one, I presume,
will think that his tefitimony in this respect is
entitled to any weight, when in conflict with
the testimony of Captain Russell and the mate.
Ward, who were both in a position to see per-
fectly what was before them, and accustomed,
by long experience, to measure distances on
the water by the eve, while Miles was looking
under the l)Oom of his mainsail with his head
near the deck, and his vision obstructed by the
sails and rigging of his own vessel. He was in
no position to form a correct judgment of
distances any more than of bearings; and
even Cory contradicts him, and says, that ''we
dki not change our course until we were within
150 yards, if, indeed, we were more than 100
yards from The Louisiana.'' He, in effect, cor-
roborates the testimony of Captain Russell and
Ward.

It has been said, also, that the steamboat
ought to have slowed her speed before she ap-
proached so near as 150 yards to the sailing
vessel. But this argument loses sight or
the fact that, until the schooner changed her
course to the west, those on board of the steam-
boat had no reason to suppose that there was
the slightest danger of collision, or any rea-
son for slackening her ordinary speed. They
luul a right to presume and, indeed, were bound
to presume, that the schooner would steadily
hold on the course she wa^ steering, and the
steamboat had shaped its course to keep out
of her way, and pass her at a safe and conven-
ient distance. And the moment they di^vered
that the schooner had changed her course, and
was heading in a direction Uiat mi^ht produce
collision, she instantly stopped and backed, and
took every measure in her power to avert the
danger. But until the change of course by
the schooner, there could bo no reason and no
obligation whatever to slacken her speed ; for
it can hardly be supposed that a steamboat is
bound to stop or slacken her speed whenever
she sees a sailing vessel coming in an opposite
direction, and wait to see whether she will
conform to the rule laid down by this court, and
hold her course, or suddenly change it to cross
the hne in which the steamboat is moving.
Such a rule would make steamboat navigation
of very little value on the Chesapeake. But
unless such is to be the rule, I can see no ground
for imputing it as a fault to the steamboat,
that she did not slacken her speed until she
came within 150 vards, when it is admitted
that the schooner did not change her course to
the west until she had come within that dis-
tance of the steamboat.

As relates to the general rate of speed of the
steamboat, no one acquainted with the naviga-

668

tion of the Chesapeake has ever susgesled or
supposed that it was dangerous to life or prop-
erty on that wide bay; and there is no eviaenoe
from which such an inference can be drawn.
The fact Uiat The Louisiana carried the mail,
and was obliged to proceed at the rate of fourteen
or fifteen miles an hour, in order to fulfill her con-
tract, certainly gave her no rights or privilege-
beyond those of any other steam vessel, nor ezs
empted her in any degree from the care, cau-
tion and watchfulness in speed, as well as in
everything else, required of others. The fact
that a contract was made is perhaps some evi-
dence tliat the public authorities of the United
States, having all the means of inforoialion
within their reach, were satisfied that the rate
of speed required was not dangerous to the life
or property of our citizens who are accustomed
to navigate the bay.

It is unnecessary to remark upon the testimon v
given by the captain of The Keyser, which
sailed from the Patuxent in company with The
Perrin. He was, he says, three quarters of a
mile off, and could in the night, even by moon-
light, have no certain and accurate knowledge
of the bearing of the colliding objects towards
each other as they approached, or the particular
incidents of the collision ; the more especially as
both vessels were ahead of him, and to leeward
and hidden from him by his own sails as he
stood at his helm. He says, too, that before
the collision, he paid very little attention, and
what he did see was by looking under his boom.

Neither do I attach any importance to con-
versations and statements made on board The
Louisiana after the collision. DeclarationB
made in conversation are apt to be loose and
unguarded — ^are often misunderstood, and, in
my Judgment, entitled to Yery little weight in
any case, and least of all in a case like this,
where the minds of all had been excited and
agitated by the scene through which they had
so recently passed.

There is no other evidence in the record
which appears to be material to the points I am
discussing, and I forbear, therefore, to refer to
it This opinion already occupies more apace
than I anticipated. But, as the full statement
of the testimony cannot be given in the report
of the case, I have found myself unable to pre-
sent the facts truly and fairly, as I understand
them, in fewer words.

I fully agree with the court, that the strictest
supervision should be held over steamboats.
But it is impossible for them to perform the
duty of keeping out of the way, unless the
sailing vessel is held to the correlative duty of
keeping her course. Even-handed justice re-
quires tiiat the law of navigation should be as
obligatory upon the sailing vessel as it is upon
the steamboat. This is a question of property,
and the rights of the parties are to be asoerUdned
and determined by the rules of law. And
where the evidence shows, as I think it does,
that The Louisiana performed her duty, and
took proper measures to keep out of the way,
and her efforts were counteracted and defeated
by the sailing vessel, and a collision forced
upon the steamboat by the incapacity and mis-
conduct of those in charge of The Perrin, I
cannot think that the steamboat shoukl be
charged with any part of the damage which the
sailing vessel brought upon itself. Those who

64 D.&

1869.

United States v. Boltok.

841-858

intrust tl^eir property on the water to incom-
petent hands have no Just right to complain of
disasters, and claim mdemnity for losses aris-
ing altogether from the incapacity and unfitness
of those of whom they have confided it, and
still less have Cory and Miles, whose incapacity
and misconduct were the sole cause of disaster.
And entertaining this view of the controversy,
I dissent from the judgment of the court.

ated-8 Wall., 278 ; 1 Bond, 460 ; 1 Bigs., 481; 2 Low.,
28 ; 6 Low., 124 ; 2 Hughes, 132 ; 7 Kan., 606.

THE UNITED STATES, A^t.,

JAMES R. BOLTON.

(See S. C, 21 How., 841-858.) -

Mexican land claim — proof of records necessary,
to admit copy of same — conditions notfvlfU&d
and no possession — wJien claim invalid.

In a Mexican claim, where it appears the claim
wasDOtpresonted to the Departmental Assenibly,
and not the sliflrhtest evidence exists in the archives
of any petltioo, order,or the record of a grant, held,
that claimant was bound to prove that records
showing a compliance with the laws of colonization
did exist when the copy he produces was given,
before he could prove their loss and their contents.

The Regulations of 1828 directs that a proper rec-
ord shall oe kept of all the petitions presented and
grants made, with maps of the lands granted ; this
record is the evidence of a grant.

When the government Institutes inquiries in ref-
erence to the subject. It is entitled to require the
production of that oiBcial record.

The record evidence which is required to support
a claim is considered in the case of Cambuston, 61
U. S., 60, and more at large at this term in the case
of Fuentes.v. U. 8.

Where the claim was first made known to the
public m 1860, and there is no proof to show that
any of the conditions of the grant have been ful-
filled, and there was no judicial power sought or
obtained, and no claim made for the land as the
grantee tJhereof, to give the community at large
any information concerning it; held, that the va-
lidity of the grant has not been sustained.

Argued Apr. 5, 1860. Decided May 4, 1860.

APPEAL from the United SUtes District
Court for the Northeru District of Califor-
nia.

This case arose upon a petition filed before
the Board of Land Commissioners in Califor-
nia, b? the appellee, for the confirmation to
him of a claim to a certain tract of land.

The Board of Land Commissioners entered a
decree confirming the claim. The District
Court of the United States for the Northern
District of California having aflSrmed this de-
cree, the United States took an appeal to this
court.

A further statement of the case appears in
the opinion of the court.

Messrs. J. S. Black, Atty-Gen. , and W.
B« Reed» for appellants.

Points on the part of the United States:

I. That on the facts disclosed in this record
the pretended grant of Feb. 10, 1846, and the
order for the delivery of the temporalities of
the mitision Dolores to the priest Santillan,
dated Jan. 15, 1H46, are fraudulent.

XL That if the grant be a genuine paper, it
is utterly invalid as conferring any right on the
grantee, because:

1. It is antedated.

2. If not antedatedi it neyer was deliyered.

8«e 38 How.

III. If genuine, not antedated and delivered,
it was not made in conformity with the Coloni-
zation Act of 1824, and the Order of 1828, as
held to be essential in the cases of The U. 8. v.
Cambuston, 61 U. 8. (20 How.), 59: U. 8. v.
Sutter, 62 U. 8. (21 How.); 64 U. S., U, 8. v.
Rose, (23 How.), 262.

IV. It is invalid under any assumed powers of
the Departmental Assembly, either the Depart-
mental Act of 28th May, 1845. or Pico's proc-
lamation of October, as a secret and private
sale to Santillan, never submitted to the As-
sembly.

y. Aside from any power attributed to the
Departmental Assembly it was invalid as made
by Pio Pico before the 15th of April, 1846, .
when he was sworn as governor, under the au-
thority of the Federal Government.

VI. It is invalid as a grant to one who claims
to have been administrator of the lands in ques-
tion.

See Figueroa's Regulations of 1834; Febrero
Mel. Econo., torn. 11., p. 283, tit,40, cap. 2, sec.
5; Civil Code of La., arts. 2965. 2966; Poth.
Mandat, Nos. 148, 149, 166, and note on art.
450; Poth. Oblig., No. 513; Toullier, t. 10, p.
482;iWa.,18,p. 300.

On the general principle of the invalidity of
a purchase by a trustee or person In offlcial
relation, the following authories, elementary
and adjudicated, are referred to:

1 Sto. Eq., 218, 221, 308, 828; Wormley v.
W<yrmley,% Wheat., 421; Sto. Ag., 210, 215;
Davoue v. Fanning, 4 Johns. Ch., 199;
Michoud V. CHrod, 4 How., 503.

VU. The conditions of the grant, as well
those prescribed by the Colonization Act, as
those specified in the grant itself, never were
complied with, and no equity re<}uiring its
confirmation is raised against the United States,
especially as both the grant itself and the
Colonization Act require a process of judicial
possession and definition of limits.

VIII. The claimant is estopped from setting
up a secret grant thus obtained, the acts and
silence of Santillan from 1846 to 1855, operat-
ing as a virtual abandonment of all his rights.
This is well established by the general doctrine
of equitable estoppels.

BeePickard v. Sears, 6 Ad. & E., 474; 1
Stoiy, Eq., 384, 204, 220, 695, 769, 770; Gregg
V. Wells, 10 A. & E., 90; Engle v. Btirjis, 5
Call. Va., 463; Ibbottson v. Rhodes, 2 Vern..
554; Nicholson v. Hooper, 4 Myl. & C, 179; 9
Mod., 35; 12 Wend., 57; 11 N. H., 201 ; 4Barr.,
194; 9 Mod., 37; 1 T. R„ 762; 2 Brown C. C,
650; 1 Wood. A M., 417; 16 Me., 146; 2^Cow.,
246; 11 N. H., 201; 1 Johns. Ch., 354; 7
Watts., 400; 2 Johns.. 578; 12 B. Mon., 255;
23 Me., 131; 17 Vt., 403.

Where a party stood by and saw improvement
made on land by persons claiming title and be-
lieving themselves owners in fee, and inter-
posed no pretension of title, it was held that he
was thereby estopped from making any claim
upon the land.

5 Johns. Ch.. 184; 16 Barb., 618; 24 Miss.,
62; 18 Barb., 43'>; 9 Ga., 23; see, also, 4 Watts
& S., 323: 5 Watts & S.. 285; 1 Pa. St. 309; 4
Pa. St., 353; 3 Rawle, 487; 2 Pa. St., 372; 3
Pa. St., 136; 1 Watts, 152; 6 Watts, 126; 4
Serg. & R.. 174; 2 Harris, 59; 2 Pa. St., 318;
3 Pa. St,. 187; 4 Pa. St.. 177; 7 Watts, 882.

««9

841-358

SUPBfiMK COUBT 09 THE UnITBD StATBS.

Dbc. Tbrw ,

Mestr: R. J. Walker» J. Mason Camp*
bell* St. GeorM T. Campbell aad Joha
W. DwinelletTor appellee:

I. The evidence as to the proof of the gfant
ia abundant and conclasive.

II. As to the official character of the person
making the grant.

By the Act of the Mexican Congress of 6th
May, 1822, the " primer weal** of the Depart-
mental Assembly, being made Gk>yemor <»d inte-
rim in case of vacancy, Pio Pico sb primer wocU
of the Assembly, became Provisional Governor
of the Califomias on Micheltorena's expulsion.

See Carey Jones' Report,15, 98, 111, 109, 101,
78, 78.

Part of the evidence offered by the United
States in this case is a grant made by Pico. He
was recognized as Governor by the Supreme
Government of Mexico.

See, also, 59 U. S. (18 How.), 566; U. 8, v.
Sutherland, 60 U. S. (19 How.), 868.

III. As to the subject of the grant, viz.:
Mission lands within the ten littoral leagues.
This court has decided that the mission lands
were secularized and grantable like other pub-
lic lands.

U. 8, V. mtcMe, 58 U. S. (17 How.). 52S: U.
8. V. Cervantes. 59 U. S. (18 How.), 555; U. 8,
V. Sutherland, 60 U. S. (19 How.), 868.

It has further decided that grants might be
made to natives within the ten littoral leagues
under the Colonization Laws.

ArgueOo v. U. 8,. 69 U.S. (18 How.), 589; U,
8. V. Cervantes, 59 U. 8. (18 How.), 555.

That Santillan was a native, is not disputed.
Even were he a Mexican Indian (which the
United States failed to prove), this court has
settled his right to take under the Colonization
Laws, equally as a native of Spanish blood.

U. 8, V. RUeJiie, 58 U. S.(17 How.), 540.

IV. The Colonization Laws had not been
suspended in regard to the Dolores mission
lands. No authority has been shown warrant-
ing the Executive of the National Gk)vemment
to suspend the Colonization Laws. The power
of suspension was exercised where deemed nec-
essary by Congress, as the legislative authority.

See Jones' Report, 68.

V. As to the capacity of Santillan to take,
being a priest. Bishop Alemany, his diocesan,
a prelate of the Roman Cathcuic chundi and
acquainted with its laws, proves Uiat Santillan
was one of the secular clergy, and so authorized
to take property, which the regular clergy are
not.

VI. Has the governor pursued the course
marked out for him under the Act of 1824 and
the Regulations of 1828?

[On this point the counsel reviwcd the case at
lencrth.]

VII. The foregoiDff points cover the power
of the governor to make, and Santillan to take,
the grant. The fact of its actual execution
and deliverv, its conformity to the Regulations
of 1828, and the performance of the prescribed
conditions by the grantee. But as it appears
by the opinion of the commissioners, that it
was argued before them that the grant had
been executed after Pico had ceased to be gov-
ernor, and that it was antedated, it may be
necessary to argue the question of fraud or for-
gery. [The argument on this point had ref-
erence almost exclusively to the evidence.]

670

On the question of estoppel, see Suttees esuBe
before Commissioners and District Court and
Supreme Court of California; also, OwmCs
case, 6 Cal, 968.

A sale to a trustee is only voidable on appli-
cation of cestui que trust within a reasonable
time.

Hill, Trust., 586; Lewis, Truste, 470, 47i,
ch. 16, sec. 8.

A sale to a trustee under judicial authori^
is neither void nor voidable.

Hill, Trust., 586.

Mr, Justice Catron delivered the opinion
of the court:

In March, 1852, the appellee presented his
clfum to the commissioners for settling land
claims in California for a parcel of land situ-
ated in the County of San Francisco, and bound-
ed north by what was formerly known as
Terba Buena; northwest by lands of the pre-
sidio of San Francisco ;west by the lands of Fran-
cisco Haro; south by the lands of Sanchez; and
east by the Bay of San Francisco, with a reser-
vation of the curate's house, the church of
Dolores, and other previously granted lands
within the external boundaries of the tract,
which include 29,717 acres; and the clidms pre-
viously granted within those boundaries arc 19,-
581 acres; leaving, as the unquestioned claim of
Bolton, 10,186 acres. The orignal claimant is
Jose Prudencia Santillan. a secular priest, who.
together with his general agent, Manuel An-
tonio Rodriguez de Poll, in April, 1850, upon
the recited consideration of $200,000 conveyed
it to Bolton, the appellee. An interested party
testifies that, in 1851 and in 1854, it was worth,
at a low estimate, more than two million of dol-
laro. The claim was confirmed in 1855 by the
Boud of Land Commissioners, and in 1857 their
decree was affirmed in the district court The
grant to Santillan bears date the 10th February.
1846. It purports to have been made by Pio
Pico, " first member of the Assembly of the
Department of the Califomias, and charged
wiw the administration of the law in the same."
and to be signed by Covamibias, as secretary.
It recites that the priest Santillan has petitioned
for a grant, for his own benefit, of all the com-
mon mnds known as belonging to the miaBion
of Dolores, as well as the houses of the rancher-
ias of the mission, which were in a state of aban-
donment; and that, thereupon, the governor
had proceeded to grant them, subject to condi-
tions:

1st. He shall pay, as a compensation for said
grant, all the debts that exist against the mis-
sion.

2d. He shall petition the proper judge for the
judicial possession, in virtue or the ^nt, of all
the lands and houses conveyed ; and m the meso
time, the possession which he has of the bouses
and lands, in his capacity of administrator, ap-
pointed as such by the prelate of the missions
of the College of Our Lady of Guadaloupe. in
2^acatecas, for the temporalities of the misvon
of Dolores, shall serve as legal.

dd. The judge who shall give the poesesRioB
shall have it measure and marked with the cus-
tomary landmarks, the contents being tiiree
square leagues, more or less.

4th & 5th. That the houses of the curate, and
the church of Dolores, and the property which

•4 V. 8.

1860.

Unitbd Statbs v. Boltoh.

841-853

some persons hold under good titles, shall be
respected, and that the title be recorded.

The claimant exhibits a letter from Coyarru-
bias to Santillan, dated 16th January, 1846,
which informs him of an order made by the
governor to the administrator of the mission to
make formal delivery of all the appurtenanoes
of the mission Dolores to Santillan, that he
(Santillan) may admininister the temporalities
of the mission.

In Mig-ch, 1850, Santillan pablished a notice
in a newspaper in San Francisco, which stated
that the governor, Pio Pico, on the 10th Febru-
ary, 1846, had granted to him all the unculti-
vated lands and all the unoccupied houses apper-
taining to the mission; that the grant was made
and is recorded in the City of Los Angeles, and
that it was written by Covarrubias, t|ien secre-
tary of the governor; that in the month of
January, 1846, an order had issued to the ad-
mininistrator of the mission, to put Jose Pru-
dencia Santillan in possession of the temporali-
ties of the mission, which was done; and that
the grant, being made one month after, reeog-
nizesand refers to this order of the government,
and provides that the possession under the order
was for the purposes of the grant. This notice
was designed to warn persons from trespassing
on the land, or purchasing titles from the jus-
tice of the peace, acting in the capacity of
alcalde in San Francisco. The grant itself was
recorded shortly after in the county records of
San Francisco; and in May, 1852, the claim was
filed, with a petition demanding its confirma-
tion, before the Board of Land Commissioners,
sitting at San Francisco.

In Its support, four principal witnesses were
relied on, namely: Jose Maria Covarrubias,
Cayetano Arenas, Jose Matias Moreno, and
Narcisco Botello. Covarrubias' deposition was
filed with the petition. He was secretary of the
government when the grant b(»Etfs date, and de>
poses that he wrote the document ; that Govern-
or Pio Pico signed it, and that he, Covarrubias,
countersigned it as secretary; all of which was
done in the secretary's office at Los Angelea, at
the time the grant bears date. He says the paper
there exhibited was one of those delivered to the
party, and that he believes it is a substantial
copy, if not a literal one, of an order of the
governor for the purposes therein staled.

Arenas states thai he was employed as an of-
ficer in the office of the secretary of the govern-
ment; that he saw the grant now filed before
the Board of Land Commissioners, produced at
the office of the secretary of the government in
the month of February, 1846, about the time it
bears date. *' It is a document given out by the
government to Padre Santillan." He declares
the signature of the governor and secretary to
be genuine; that he saw the document made;
also, that had the grant remained in the secre-
tary's office, it is probable he should have seen
it. Being asked whether a note of the grant
was ever made in any book of titles, he answers
that there were then only loose sheets of paper
kept,on which to note titles at Los Angele8,the
regular book being at Monterey; and that a
note of this title was made on said loose sheets
of paper. " I wrote the note of this title myself."
The sheets of paper were stitched tocher.

Moreno proves that he was appomted gov-
ernment secretary as sucoeaaor to Covarrumas,

I3ee 28 How,

and came into office on the Ist day of May, 1846,
and continued to act as secretary until the
country was conquered in Juljr following. He
is asked, on behalf of the claimant, ** Whilst
acting as secretary, did you ever see a paper
purporting to be a petition of Jose Prudencia
Santillan for s grant of the land of the ex- mission
of Dolores, or any other paper in relation to Sfud
grant?" and answers, ' ' I never did "

He further stales, that he had never seen any
such grant, or any papers relating thereto. "All
1 recollect is, that I saw the name of Padre Baa-
tillan in the book in which the note of titles was
taken; it was on the last page, but I do not
know whether it was in relation to a grant or not.
The book contained nothing but the notes which ,
were taken of titles.

Narcisco Botella deposes, that he was a dep-
uty of the Departmental Assembly during the
first four months of 1846, and served as one of
the committee on public lands ; and during
that time the origmial eapediente and grant
made to Santillan, of the mission of Dolores
and its lands, came up for action before the
Assemblv ; that the title was duly suba Uted and
approved. He swears to its confirmation in the
most precise ternis. To meet this evidence, it is
suggested for the United States that the As-
sembly never acted on sales of land made by
the governor of mission property ; and this may
be true, but the grant to Santillan was not a sale
of the mission of Dolores. It is in form an or-
dinary colonization grant, made according to
the Act of 1824 and the Regulations of 1828,
and under their authoritv; nor can the recital
in it — ^that Santillan shall pay the debts of the
mission— Affect the title. The title is vested,
whether the debts were or were not paid. The
petition and grant were undoubtedly proper
papers to be submitted to the Assembly for ap-
proval.

Under the Acts of Colonization, the records
of the Departmental Assembly in 1846, during
the time that Botello says he acted on the com-
mittee of public lands, are well preserved. The
different meetings and daily pro^edings of that
body are minuted in regular form in the Journ-
als. From these it appears that its first session
for 1846 commenced on the 2d day of March,
and on that day Norega and Arguello were ap-
pointed the conmiittee on public lands; and in
the session of the 4th of March, Senor Botello
obtained a leave of absence for a term not ex-
ceeding three months. ' His absence is usually
noted at the end of each day's proceedings, and
his name does not again appear as an 'actinff
member until the 15tn of June. On the 1st of
July he was elected temporary secretary of the
Assembly, in the absence of Olvera, the regu-
larly appointed secretary. Botello certainlv
did not belong to the committee of public lands
during the year 1846.

The first report of the governor to the As-
sembly respecting the disposal of lands was of
forty-five grants to sundry individuals, and
was made the 8th day of M!ay, and referred to
the committee. The committee reported favor-
ably, and the grants were confirmed in the ses-
sion of June Sa. The decree of confirmation
includes grants down to May 3d, 1846. That
of Santillan is not among them.

The decrees of confirmation are distinct,
legolar and definitive, and there is no reason

671

941^888

SUFBBMS COXT&T 09 THB UkITIBD StATBS.

Dbc. Tbbh,

to suppose that any grant that had been made
was reserved from the Assembly. And, in ad-
dition, Moreno proves that, whilst he acted as
secretary to Governor Pico, he never sent to
the Departmental Assembly any etpedierUe or
grant or lands to Santillan. And as it was his
official duty to do so, he can hardly be mis-
taken. We deem it true beyond controversy
that Botello was not one of the committee on
vacant lands; that the claim of Santillan was
not presented to the Departmental Assembly;
and that the statement of Botello, in his dep-
osition of his official relation to this grant, is
without any foundation in truth.

Covarrubias having stated that Piouire Santil-
lan filed a petition for a grant of the mission
lands of Dolores, and that Gk)vemor Pico made
an order on which the grant was founded, it
becomes necessary to inquire whether such pe-
tition and order ever existed in the archives;
and secondlv, the probability of their being lost,
as not the slightest evidence now exists in the
archives of any petition, order, or the record of
a grant.

Moreno states that he took possession of all
the archives, when he came into office as suc-
cessor of Covarrubias. Arenas says this was
the next day after Covarrubias had resigned,
in Februarv, 1846. Moreno states that it was
on the 1st day of May, 1846. It is certain that
Moreno submitted to the Assembly the titles
confirmed in June. He proves that no such
papers were ever seen by him; and as he was
' examined on behalf of the claimant to prove
the authenticity of this grant, and whatever
might conduce to that end; and as he was in-
terrogated relative to the existence of papers
properly connected with it, if authentic, and
remain mg in the public repositorv under his
official care; and as he denies knowledge of the
deposit or existence of such papers, his testi-
mony raises a strong presumption that the re-
quirements of the Colonization Laws were not
complied with on this subject. We are con-
firmed in this opinion by the examination of
other testimony.

Arenas says he took the name of the title and
the number and date of the grant ; that is to
say. of the grant then before him, and then
delivered to Santillan. But he says nothing of
the petition nor decree conceding the land. All
that Covarrubias states is, that there was a pe-
tition and decree of the governor, on which
papers the grant was founded. But he does
not swear that they were filed or recorded.

As respects the probability of a loss of San-
tillan's title papers, Moreno proves, that when
the United States forces suppressed the Mexi-
can Government of California, in August,
1846, bv order of Governor Pico, he deposited
the archives belonging to the secretary's office
in boxes, and placed them in the house of Don
Louis Yigines, in Los Angeles; and he knows
nothing further of them. And Olvera proves
that he made a similar deposit of the records
of the Departmental Assembly at the house of
Don Louis Yigines. This occurred about the
10th of August, 1846. Ke says that he then
had e»pedientst in his charge as secretary of
the Assembly. How many does not appear.
Up to this time, it is not assumed that any
documents were lost.

Commodore Stockton directed the removal

of these archives, and for that purpose they
were taken possession of by Colonel Frteont ;
and after some delav and some exposure, they
were eventually delivered to Captain HaJleck,
of the United states army, at Monterey, then
acting Secretary of State under the MilitaiT
Governor of California. Captain Halleck
proves that when delivered to him they were
in a bad condition, being much torn and mu-
tilated. They were shortly after arranged,
numbered and labeled.

It is a historical fact, that the ettpedienteg and
grants made for some ten years before the year
1846 are referred to in an index, and in a regis-
ter known as the Toma de Razon — the former
made by Manuel Jimeno, who was the eovem-
ment secretary before Covarrubias. And as
the title papers to which reference is made in
this index, and the register, are found in the
archives as they now exist, it is reasonable to
suppose that those espedieniss made in 1846
were carried with equal safety, as they came
into Colonel Fremont's hands, according to the
testimony of Moreno and Olvera, in the same
condition ; and according to the testimony of
others, they were transported in the same man-
ner, and were continued in the same custody;
and it is true that the expedierUet of 1846 are
apparentlv as well preserved as the others ; but
from the loss of the Toma de Razon, and the
absence of a contemporary catalogue like Jime-
no*s index, we have not the same assurance of
their entire existence.

Be this as it may, the claimaint waa bound
to prove that records showing a substantial
compliance with the laws of colonization did
exist when the copy he produces was given to
Santillan before he could be heard to prove
their loss and their contents.

In deciding on this controversy, we are lo
be governed by the laws and usages of the
Mexican Government administered in the De-
partment of the Califomias (as respects the
granting of lands) before the conquest of the
country, and according to the principles of
equity. These are the rulea prescribed by the
Act of March 8, 1851, sec. 11 (9 Stat, at L.,
631).

The laws and usages applicable to this claim
are found in the Regulations of 1828.

Lands were to be granted " for tiie purpose
of cultivating or of inhabiting them ;" and the
mode of obtaining a grant is prescribed to be by
an address to the governor, setting forth the pe-
titioner's name, profession, &c., describing dis-
tinctly, by means of a map, the lands he asks
for. Then the governor was to obtain the nec-
essary information whether the petition em-
braced the legal conditions, both as resards the
land and the applicant. This being done, the
governor was required to proceed to make an
order for the formal grant to be drawn out,
which he should execute.

Sec. 11 directs that a proper record shall* be
kept of all the petitions presented and grants
made, with maps of the lands granted.

This record is the evidence of grant. It be-
ing made.the governor (sec. 8) shall sinia docu-
ment, and give it to the partv interestec^to serTe
as a title, wherein it must be stated that said
grant (to wit: the record) is made in exact con-
formity with the provisions of the lawsw In
virtue of this document issued to the party.pot-

64 V.&

1859.

UNnsD Htatzs t. Bolton.

841-858

session of the lands shall be given. But the
document is not sufficient of itself to prove that
the ^vernor has officially parted with a portion
of the public domain, and vested the land in an
individual owner. This must be established
before the Board of Commissioners by record
evidence, as found in the archives, or which
had been there, and has been lost. The titzUo
given to the party is merely a certificate by the
^vernor of the acts that have been done in the
regular course of official procedure towards the
disposal of a part of the public domain Among
individuals, this certificate serves the purpose
of evidence. But when the government insti-
tutes inquiries in reference to the subject, it is
entitled to require the production of that offi-
cial record, which it has prescribed to its officer,
for its own security, and as a necessary condi-
tion of a legal administration, and a necessary
precaution against fraud. That a petition was
presented by Santillan is stated incidentally, but
indistinctly, by a single witness (Covarrubias);
and this unsatisfactory statement \s disproved
by the absence of the record and the evidence
of his successor. Moreno. The claim, as pre-
sented to the Board of Commissioners and the
district court, has no legal foundation to rest
upon.

The degree of record evidence which is re-
quired to support a claim of the above descrip-
tion is considered and adjudged in the case of
U. 8. V. Cambuston, 20 How., 59. and more at.
large in the decision made at this term in the
case of Fuentes v. The United States; so that a
further consideration on that head is not re-
quired in this case.

Such being the legal condition of this claim,
the next question is. how does it stand on its
equities.

The grantee is one of the eighteen secular
priests who were in California. He arrived at
the mission of Dolores either in 1844 or 1845,
probably in the latter year. He was of Indian
extraction, and in necessitous and distressed
circumstances. A number of witnesses say he
subsisted on alms. A grant to a priest for his
own benefit is a singular fact in California.
The bishop elect since 1850 says: "I learned
that Padre Santillan obtained a grant of land
from Governor Pio Pico. I know of no other
instance excepting this, and have heard of no
other case in which the grant has been made to
a priest personally, and for his own benefit."
Berreyesa, when pressed for the reason for the
retention of a casual conversation in his memory
for so long a period, says: '* It was an unusual
thing for a mission to be ^minted to tL, Padre for
it was thought that the Padre* could not hold
such property, and it seemed strange to me."

But the grant was made to this necessitous
Padre upon the primary condition that, **in
consideration of this ^nt, he shall pav the
debts of the mission which exist up to this time.'*
It would seem that a grant of land with such a
condition, to such a person, was a vain thing.
There is no testimony to show what the amount
of the debt assumed by Santillan was, to whom
it was owing, when and how it was contracted,
or what security was required for ita payment
Neither Pio Pico nor Covarrubias afford the
slightest information of the manner in which
the consideration was to be paid.

Until the spring of 1850, none of the large

See 28 How.

community then building up a city on the land
in dispute had any suspicion that this poor man
claimed to be owner, in his ojvn right, of ten
thousand acres of laud, with an outer boundary
including three other grants and embracing
nearly thirty thousand acres.

He had made some claim for the church as a
priest and administrator of the mission, and had
caused the papers of the mission to be exam-
ined by a competent lawyer, and endeavored to
repel intruders at his door, by some title which
he supposed might exist among the documents
of what had been an important missionary es-
tablishment. No title was found which vested
this property in the church, and superseded the
public title; and then this claim was first made
known to tlie public.

There were at that time a thousand settlers on
the land claimed, holding their possesion and
titles by purchases made from a justice of the
peace, appointed under the authority of the
Military Government of the United States in
California, and who professed to make grants
not exceeding fifty varas square, but with a res-
ervation of the claims of individuals and that
of the United States. Of course, these claim-
ants expected to receive an acknowledgment,
or some recognition, of their title by the United
States. The Padre Santillan seems to have been
much excited by his contest with these occu-
pants. In September, 1849, he constituted
O'Connor, an attorney at law, and Salmon, a
merchant, his attorneys, and authorized them to
enter into possession, for the uses and benefits
of the mission of Dolores. «and of which he was
pastor, of lands, tenements and hereditaments,
that he had a right to enter into, possess and
enjoy, and the same dispose of by lease, for the
benefits and objects of the mission, with all the
powers that he possessed by virtue of his pasto-
ral care and tutorship, in his own right, and the
rights of others represented by him. ** He also
empowered them to ask, demand, recover and
secure, the sum or sums of money now due or
owing for occupancy and use of the lands. houses
tenements and hereditaments, belonging to the
parties represented by him, or belonging to him
by virtue of his office."
' The attorney mentioned in this deed is a lead-
ing witness to discredit the genuineness of the
grant.

He had no notice or imagination of its exist-
ence when this power was accepted. In No-
vember. 1849, the Padre Santillan, with Dr.
Poll, made a journey to Santa Barbara, the place
of residence of Covarrubias. and on his return
intimated to his friends *' that he had been to
the governor, and that the Americans could not
rob the church any longer;" that he had the
paper, "in which were all his hopes;" '* that he
was well off;" and used other exultant expres-
sions, which denote that the acquisition of the
deed was newly made, and that a great change
was effected by it in his condition and feelings.
In the month of March, 1850, he announced to
the public of San Francisco that such a grant
was in his possession, with other circumstances
before detailed, and in the month of April con-
veyed the land to the claimant.

The testimony does not disclose what was the
depository of this grant in Santa Barbara, nor
when, nor under what circumstances it was
placed there, nor under what circumstances

&i8

485-488

BuFSBXE Court or thb Uhitbd Btatbs.

Djec. Term.

withdrawn. Neither Santillan nor Dr. Poll
ha^e been eiamined as witnesses: nor was Pio
Pico interrogated in reference to the authen-
ticity of the grant.

There is no proof to show that any of the
conditions of the grant have been fulfilled.
The testimony as to the payment of any portion
of the mission debts is vague and unsatisfactory.
There was no judicial possession sought or ob-
tained, and no claim made for the land as the
grantee thereof, to give Uie community at large
any information concerning it.

Our opinion,consequently,iB, that the validity
of the grant has not been sustained, and that
the decrees of the Board of Commuoionere and
the dietriet court are erroneous and must he re-
versed, and that tits cause he remanded to the
district court, uith directions to dismiss the claim.

Clted-2i How., 361; 1 Wall.. 745 ; 10 WaU., M5.

EDWARD MINTURN, Oompt. and Appt,

tj.

JAMES B. LARUE, CARLISLE P. PAT-
TERSON AUD JOHN R. FOURATT.
(See 8. a. 83 How.. 4aiM38J

Ferry hetween Oakland and San Francisco — rule
of construction of grants, hy Legislature to
corporations — douhtful words canstrued more
strongly against grantee.

The Town of Oakland did not possess the power
under its charter to jpsant an exclusive rifrht of fer-
ries between that place and the City of Ban Fran-
cisco.

It is a well settled rule of construction of grrants
hy the Legislature to corporations, whether pub-
lic or private, that onlv such powers and rights
can be exercised under them as are clearly compre-
hended within the words of theAct or derived there-
from by necessaTT implication, regard being had
to the objects of the grant.

Anv amblgultv or doubt arising out of the terms
used by the Legislature must be resolved in favor
of the public.

A forced interpretation, the court is not at liber-
ty to give.

If the meaning of the words be doubtful, they shall
be taken most strongly against the grantee and for
the government, and therefore should not be ex-
tended by implication beyond the natural and ob-
vious meaning of the words; and if these do not
support the claim, it must fall.

Argued Apr. S4, 1860. Decided May 4, 1860.

APPEAL from the Circuit Court of the United
States for the Northern District of Califor-
nia.

The bill in this case was filed in the court
below, by the appellant, to restrain the defend-
ants from running a ferry between the City of
San Francisco and the City of Oakland, claim-
ing an exclusive right of ferries between said
cities in himself.

The defendants demurred. The court sus-
tained the demurrer and entered a decree dis-
missing the bill, whereupon the complainant
took an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Mr. Reverdy Johnson* for appellant:

The riftht to keep a ferry in England is an in-
corporeal hereditament, being a franchise grant-
ed by the Crown, or depending on prescription,
which presupposes a grant.

6 Com. Dig., 291 ; 1 Notl & McC, 8«7.

674

In respect to the establishment and regula-
tion of ferries, the state government have sac-
ceeded to the prerogative and Jurisdiction of
the crovni.

Qibbom v. Ogden, 9 Wheat., 1.

It is no objection to the grant of a ferry priv-
ilege, that it is to extend over public navigable
waters and arms of the sea.

15 Pick., 263.

There can be no doubt as to the power of the
Legislature to establish or authorize the running
of a ferry between San Francisco and Oakland,
and it is well settled that the Legislature of a
State may confer upon a city or a town, by an
act of incorporation, the audiority to establish
and regulate ferries within certain districta, in
as ample manner as thev themselvespossess it

Goetar v. Brush, 25 Wend., 681 ; Fanning v.
Qregoire, 16 How., 525.

It was said by the circuit court that every
grant of power to a corporation was to be con-
strued most strongly a^nst the grantee, and
that nothing passes by implication, and that
though the words in the charter of the Town of
Oakland "Regulate and keep in repair," were
applicable to ferries, yet that the woiti " make "
was not properly applicable, and that, therefore.
it was possible that the board of trustees might
regulate ferries, provided there were any estab-
liwed, but could not create them. The word
* 'make " signifies to ' ' create, " to call into being,
to construct, to establish.

There is no verb in the English lanraage
more comprehensive, and I presume no judicial
authority can be found which discarda the
word "make *' as inappropriate to express the
idea of establishing a ferry.

See Stark v. McGowen, 1 Nott & McC, 387;

1 Harg. Law Tracts, ch. 2, page 6.

It is only in oases of doubt that the grant by
the sovereign is to be cbnstrued favorably to
the grantor. Here there is no occasion to resort
to any such rule of construction, nor is there
any such rule; so that nothing passes in the
grant of a charter, or other franchise, by impli-
cation.

1 Salk. , 142 ; 14 Vin. , tit. GranU. Z, 28 ; Fits.,
tit. Grants, 41.

The second objection to the right datmed by
the appellant was, that if the bMfd of trustees
had the power to license or create ferries, they
exceeded their power in attempting to make a

Kant so extensive as this one. That they, at
ist, had no express power to grant an exclu-
sive right.

Gales V. Anderson, 18 IlL, 418, has been
cited as sustaining that view. That case, how-
ever, depended upon peculiar statutes of Dli-
nois.
In B. dh L. R. R. Co. v. 8. d L. R R. Cb.,

2 Gray, 1, 82, 88. the doctrine that a Legisla-
ture cannot devest itself of power over a par-
ticular subject, so as to prohibit a aubsequent
L^islature from acting on the same subject-
matter, was held to have no applicatioo to
grants of franchises.

In the case of Coetar v. Brush, 2ti Wend..
681, it was held, that the Legislature of a State
may confer upon a city or town bv Act of in-
corporation, me authority to establish and reg-
ulate ferries, and that a corporation so vested
with the power, may, in its discretion, in estab-
lishing a ferry, grant exclusive privileges, and

64 U.S.

1859.

MlNTUBN Y.LfL RU8.

485-488

the ezercise of this power is bindinfl: on the cor-
poration and the public.

To open up ana maintain this ferry with suit-
able steamboats, required a great deal of care,
skill and attention, and a vast outlay of capital.
No one could be found willing to invest so
much money and to incur the obligations im-
posed by law, without being protected by
the grant of an exclusive right. The establish-
ment of a new feiry so near to an old one as to
divert its patronage and diminish its profits, is
an invasion of the rights of the latter by the
common law.

There is no difference between a franchise by
prescription and a recent grant from the Crown,
in that respect.

See Trotter v. ffarris, 2 Young A J., 286;
Husaey v. Field, 2 Cromp. . M. & R , 482 ; Willes,
608; 6 Mees. & W., 284; 8 Bl. Com.. 219; 1
Nott & McC, 887; 1 Hayw., 457; 1 Day, 21; 8
Murph., 57.

Counsel then reviewed the statutes of Cali-
fornia relating to the subject.

Laws of 1850, p. 97; Laws of 1861, p. 188;
Laws of 1868. p. 85: Laws of 1855, p. 188.

The plaintiff holds a ferry franchise, with all
the rights and privileges, and all the responsi-
bilities and obligations imposed by law. He is
bound to maintain and keep it up, whether
there be opposition or not. The defendants are
usurping the franchise of afeiry^ without grant
or prescription. In regard to the power of
courts of equity to relieve in such a case, see
1 Nott& McC. 887; 9 Johns., 507; 7 N. H.,
35; 2 Gray. 1; Moor v. Veazie, 82 Me.. 348.

Mr, Edward M. Stanton* for appellee :

The Bay of San Francisco is an arm of the
sea. Navigation thereof, bv the laws of the
United States and the laws or California, is free,
and exempt from any private exclusive right.

Acts of California. 14th April, 1858.

2. The Act incorporating the Town of Oak-
land conferred on that Corporation no exclusive
right of property or interest in any ferry, but
only a power to regulate ferries over waters
within the corporate limits: and the corporation
having no such right, could not confer it upon
Carpenter and his assigns.

8. The power of the Corporation did not ex-
tend to ferries across the Bav of San Francisco,
or beyond the corporate limits.

MtUs V. St. Clair, 8 How., 669.

4. The power to regulate ferries, conferred
by the Legislature upon the corporate powers
of Oakland, was a public trust to be exercised
for the public interest, and the alleged jrrant of
a private, exclusive right for 20 vears'to Car-
penter and his assigns, was a violation of that
trust, inoperative and void.

15 Pick., 248.

5. By the grant of power conferred upon the
corporate authority of Oakland, the State of
California did not surrender its general power
to regulate ferries as might be required by tlie
public interest, and the Act of 14th April.
1858, prescribing free navigation of the Bay of
San Francisco, exempt from any ferry laws,
regulated and controlled any ordinance, con-
tract or provision of the Town of Oakland.

Charles mver Bridge caae, 11 Pet., 648; i/tZbv.
St. CKa»r,8How., 669; Fhnning v. Oregoire, 16
How., 624: Thatcher v. DartmmUh Bridge Co.,
18 Pick. . 501 ; Fay, PiBtitianer, dte, , 16 Pick., 252.
See 2^ How.

Counsel also referred to the following cases:

Hintum v. LaBtie,! McAll., 871; Begentsv,

WiOiame, 9 GUI A J., 401; State v. B. Jt 0. R,

R. Co,, 12 Gill & J.. 446; Dwrtnwuth College v.

Woodward, 4 Wheat.. 618.

Mr. Jtuiice Nelson delivered the opinion of
the court:

This is an appeal from a decree of the Cir-
cuit Court of the United States for the District
of California.

The bill was filed by the complainant in the
court below to restrain the defendants from
runniDg a feny between the City of San Fran-
cisco and the City of Oakland, on the opposite
side of the bay, and which, it is claimed, is in
violation of the exclusive privileges belongiug
to him under the authority of law. The au-
thority, as set forth in the bill, is derived from
the Charter of the Town (now City) of Oak-
land. The 8d section of the charter (passed
May 4, 1852) provided that *' the Board of
Trustees shall have power to make such by-laws
and ordiuances as they may deem proper and
necessary;" among other things, '* to la^ out,
make, open, widen, regulate and keep m re-
pair, all streets, roads, bridges, ferries'* Ac.,
"wharves, docks, piers, slips" &c.; "and to
authorize the construction of the same;" and
with a view to facilitate the construction of
wharves and other improvements, the lands ly-
ing within the limits aforesaid (that is, of the
corporation), between high tide and ship chan-
nel, are hereby granted and released to said
town."

It is admitted, if the authorities of the Town
of Oakland possessed the power under the
charter to grant an exclusive right of ferries be-
tween that palace and the City of San Francisco,
the compl«unant has become vested with it.
The question in the case, therefore, is, whether
or not the power was conferred by this 8d sec.
of the charter.

It is a well settled rule of construction of
grants by the Legislature to corporations, wheth-
er public or private, that only such powers and
rights can be exercised under them as are clear-
ly comprehended within the words of the Act
or derived therefrom by necessary implication,
regard being had to the objects of the grant.
Any ambiguity or doubt arising out of the
terms used by the Legislature must be resolved
in favor of the pubUc. This principle has
been so often applied in the construction of
corporate powers, that we need not stop to re-
fer to authorities.

Now, looking at the terms of the grant in
this case, and giving them their widest mean-
ing, either separately or in the connection in
which they are found, or with the obiect for
which the power was conferred, we nnd. in-
deed, a power to establish and regulate ferries
within the corporate limits of the town, but
not an exclusive power. Full effect is given to
the words in which the power is granted,
when the simple right is conceded to establish
and regulate ferries. If the grant had been
made to an individual in the terms here used,
the question would have been too plain for
argument. In our judgment, it can have no
wider interpretation, though made to a corpo-
ration. It must be remembered that this is not
the case where the Crown or the Legislature

67o

43S-443

BUFBEUB OOXTBT OF TXR UmITIBD BTATJBS.

D£C. Tbbm,

has aliened to a municipal corporation its whole
power to establish and regulate ferries within
its limits, as may be found in some of the
ancient charters of cities in England and in
this country. In those cases, the municipal
body, in respect to this legislative or public
trust, represents the sovereign power, and may
make grants of ferry rights m as ample a man-
ner as the sovereign. The error, we think, in
the argument for the appellant is, in confound-
ing this grant with these ancient charters, or
those of a like character. But on referring to
them, it will be seen that the form of the grant
is very different, much more particular and
comprehensive, leaving no doubt as to the ex-
tent of the power. Contar v. Brush, 25 Wend. .
631. So here, if the Legislature had intended
to confer their whole power upon this corpora-
tioQ to establish and regulate ferries within its
limits, or a power to grant exclusive ferry
rights therein, a veiy different form of grant
would have been usca— one that would have ex-

gressed the intent of the law maker to part with
le exclusive power over the subject, and vest it
in the grantee. In the form used, no such in-
tent appears or can be reached, except by a very
forced interpretation, which we are not at liberty
to give, according to well settled authority.
Charles Riwr Bridge-^. Warren Bridge, 11 Pet.,
422; MtUe v. St. Clair Co., 8 How., 569; Fan-
ning V. Oregaire, 16 How., 524, 534.

In Mills V. St. Clair Co., the court, speakinp^
of a ferry grant, said that in a grant like this
by the sovereign power, the rule of construction
is, that if the meaning of the words be doubt-
ful, they shall be taken most strongly against
the grantee and for the government and, there-
fore, should not be extended by implication be-
yond the natural and obvious meaning of the
words; and if these do not support the claim, it
must fall. And again, in Phnningy. Oregoire,
speaking on the same subject, the court say:
The exclusive right set up must be clearly ex-
pressed or necessarily inferred, and the court
think that neither the one nor the other is
found in the grant to the plaintiff, nor in the
circumstances connected with it.

As the Town of Oakland had no power, ac-
cording to the above construction of the char-
ter, to establish an exclusive right of ferries
within its limits, it follows that it did not pos-
sess the power to confer upon others an exclu-
sive privilege to establish them.

The power conferred is to make (meaning to
establish) and re^^ulate ferries, or to author-
ize the construction (meaning the establish-
ment) of the same.

We think the court below was rights and that
the decree must be affirtned,

Cit^d-^ Ind., 468 ; 22 Am. Rep., 262 (43 [owa,S2i} ;
42 Am. Rep., 119 (67 Ala., 588).

SALVADOR CASTRO, Appt,

THOMAS A. HENDRICKS, Commissioner
of the General Land Office.

(See S. C, 23 How., 438-443.)

Obfeet of Act of 1861 as to CaUfomia land claims
—provisions of— contests between subMOuent
claimants — decision of Commissioner of Land
Office, token upheld.

676

The primary object of the Act, '* to ascertain and
settle the private land claims in tb« State of Cklfor-
nla," approved 8d March, 1851, was to dtotin£iii»h
the vacant and public lands from thoae that were
private property.

For tats purpose, an inquiry Into pre-existing
titles became necessary. To accomplish this, every
person claimingr lands in California, by virtue of
any rtffht or title derived from the Spanish or Mex-
ican Government, was required to present the same
to a Board of Commissioners.

The irovernment has no interest in the contests
between persons claiming ex -post faetn the gmnt i
nor is this government charred to decide between
such claimants.

The refusal of the Commissioner of the lisnd
OflBce to issue a patent upon this survey, was an ap-
propriate exercise of the functions of his office.

Argued Apr. f 5. 1860. Decided May 4, I860.

APPEAL from the Circuit Court of the Unit-
ed States for the District of Columbia.

This case arose upon a petition filed in the
court below, by the appellant, for a writ of
maTidamus to be directed to Thomas A Hen-
dricks, Commissioner of the (General Land
Office, requiring him to issue a patent to the
petitioner for certain lands.

The court below entered a decree refusing
the writ, whereupon the petitioner took an ap-
peal to this court. A further statement of the
case appears in the opinion of the court.

Messrs. H. P. Hepburn and R. J. Brent*

for appellant.

Messrs. J. S. BUtck. Atty-Gen., and B.H.
Stanton, for appellee.

Mr. Justice Campbell delivered the opinion
of the court:

The appellant petitioned the circuit court for
a writ 01 m>andamus, to be directed to the Hon.
Thomas A Hendricks. Commissioner of the
Land Office, commanding him to prepare and
provide a patent to the appellant for a parcel
of land in California, which had been con-
firmed to him by the decree of the District
Court for the Northern District of California,
and is described in a survey approved by the
Surveyor-Oeneral of that State.

Is appears from the petition and answer, and
the papiers filed in the circuit court, and form-
ing a part of the record, that in the year 1839
the Gk)vernor of California granted to Antonio
Buelna a tract of land known as San Gregorin,
of the extent of four square leagues, a Uitle
more or less, as is shown in the sketch attached
to the espediente. In 1849 the representatives
of Buelna (his widow and her husband) sold t^-^
the appellant one league of land in the location
of San Gregorio; and in 1852 they executed a
deed, conrveying the same land, by the descrip>
tion of one league of land, in the place known
by the name of San Gregorio.on the coast north
of Santa Cruz, bein^ part of a tract of land of
four leases, grantea by the government to
Antonio Buelna, and the same is declared to be
situate and bounded as follows, and containing
one league, more or less: commencing at a
stake marked A, in the Canada de los Tnni^.
where the Arroyo de los Tunis comea out of the
mountains; thence running southerly with the
ridge of the mountains to the stake marked B
in the Arroyo Hondo; thence following said
Arroyo Hondo until it meets the Arroyo de San
Gregorio; thence, following the Arroyo de San
Gregorio, to a stake marked C on a white rock
in the mountain, situate on the west side of saiil

1859.

Fmbdbrickbon v. Louisiana.

445-448

Ajrroyo; thence northwardly, about two miles,
to a high conical peak of the mountain, on
which is a placed stake marked D ; thence east-
wardly to the place of beginning.

Separate claims were presented by the widow
of Buelna and Salvador Castro for Uieir respect-
ive portions of the raneho San Gregorio, and
separate decrees of confirmation were made in
the district court. The decree in favor of
Madame Buelna is for three square leagues of
the* land within the boundaries described in the
plan attached to the etpedierUe, and lef erred to
m the original grant, copies of which are on
file in the cause. Salvador Castro was con-
firmed to the tract of land described in the deed
by the metes and bounds before mentioned,
with the addition, *' being portion of the four
leagues granted April 16, 1889, by J. B. Alva-
rado to Antonio Buelna, and known as San
Gregorio, the tract hereby confirmed contain-
ing, by estimate, one square league,and being the
same land described in the conveyance to the
claimant." The two decrees were communi-
cated to the Surveyor-General of California in
1857, and his returns are filed as testimony in
the cause. He has laid off to Madame Buelna
the three square leagues confirmed to her, and
has surveved for the appellant a tract within
the specific calls of the deed and decree of fif-
teen thousand seven hundred and 54-100 acres.
It is apparent, from this statement, that the Sur-
veyor-General has entirely disregarded the lim-
its of the raneho San Gregorio, and the restric-
tions as to quantity in the grant of Alvarado,
Governor of California, of April. 1889. But
these, for the object before the court, were the
controlling calls in the deed, as well as m the
decree. The primanr object of the Act, ''to
ascertain and settle the private land claims in
the State of California," approved 8d March,
1851 (9 Stat, at L., 681), was to distinguish the
vacant and public lands from those that were
private property: and for this purpose, an in
quiry into pre-existing titles became necessary.
To accomplish this, every person claiming
lands in California, by virtue of any right or
title derived from the Spanish or lilexican Gov
ernment. was required to present the same to a
board of commissioners. The mesne convey-
ances were also required, but not for any aim
of submitting their operation and validity to
the board, but simply to enable the board to
determine if there was a bona flde claimant be^
fore it under a Mexican grant; and so this court
have repeatedly declarea that the government
had no interest in the contests betw^n persons
claiming ex past facto the grant. United Skates
V. Sutter, 21 How., 170.

The authentic evidence of what is private
property, is to be found in the grants of the Gov-
ernment of California, and not in the tneme
convevances. Nor is this government charged
to decide between claimants in the condition of
those interested in the raneho San Gregorio.
It was entirely competent for the district court
to connect the claims arising under the same
grant, and it will be its duty, in superintend-
ing the execution of the decrees of that court in
such cases, to look to the evidence furnished
by the grant itself as overruling in determining
questions of boundary and location.

In the case of The United States y, Fossatt, 31
How., 445, this court had occasion to refer to

the limits of the authority of the courts of the
United States under the Act of the 8d March,
1851 (9 Stat, at L., 681), before cited. We
stated in that case, that if questions of a judi-
cial nature arose in the settlement of the loca-
tion and boundary of the grants confirmed to
individuals, the district court was empowered
to settle those questions upon a proper case
being submitted to it before the usue of the
patent; and in such a case, the judgment may
properly extend to the confirmation of the sur-
vey, and an order for a patent to issue. But it
was not the expectation of this court that the
Surveyor-General should make returns to the
disrict court in every case, nor did they imply
that the validity of a survey depended on ti^e
recognition of that court, or its incorporation
into a decree of the court. The Surveyor-Gen-
eral of California was charged with the duty to
cause all private claims which shall be finally
confirmed to be accurately surveyed, and to
furnish plats for the same; and in the location
of the said claims, he was invested with such
power and authority as are conferred on the
Register of the Land Ofilce and Receiver of the
Public Moneys of Louisiana, in the 6th section
of the "Act to create the office of Surveyor of
the Public Lands for the State of Louisiana,"
approved 8d March, 1681 (4 Stat, at L. , 493).
Under this Act the Surveyor-General exercises a
qucun judicial power; and the claimant with an
authentic certificate of the decree of confirma-
tion, and a plat or survey of the land, duly cer-
tified and approved by the Surveyor-General, is
entitled to a patent. But then, the Commis-
sioner of the Land Office, by virtue of enabling
Acts of Congress, exercises a supervision and
control over the acts of the subordinate officers
charged with making surveys; and it is his
duty to see that the location and survey made
by that officer under the decree of the court,
and which has not had the final sanction of die
judicial tribunals, is in accordance with the
decree.

Tke refusal of the Commissioner of the Land
Offlee, to issue a patent upon this survey, uxu an
appropriate exerei»e of the functions of his offlee,
arid the decree of the drcut court reusing a
mandamus m affirmed, with casts.

Cltftd-^ U. S., 208; 1 Sawy., 206, Ml, 682; 8 flawy.,
88*i.6TO; 4 9awy., 542, 616; TBawy., 634; 80 Cal., 807;
81 Cal., 488 ; 38 Cal., 467 ; 43 (52., 291.

See 28 How.

U. S. Book 16.

FREDERICK FRBDERICKSON, Agent for
CAROLms, Widow Plaefflin bt al.,
Plffs. in Er.,

THE STATE OF LOUISIANA.

(Bee S. C, 23 How., 445-148.)

Louisiana lato taxing property of decedent —
wJien not inwMt by the Treaty with U S, —
construction of such treaty.

By a statute of Louisiana, it Is provided that
'*each and every person, not tielo^ domiciliated in
this stato, and not beingr a citizen of any other State
or Territory in the Union, shall pay a tax often per
cent, on all sums actually received from a succes-
sion of a deceased person.*'

The third article of the Convention between the
n. 8. and the King of Wurtembenr, is, that ** the
citizens or subjects of each of the contracting par-

87 677

445-448

SupRBMB Court ov tha Unitbd Statbs.

Dbc. Tsbm.

ties shall bave power to dispose of their personal
property within the states of the other, by testa-
ment, and their legatees, beiner citizens or subjects
of the other contraotlner party, shall succeed to
their said personal property, and may take posses-
sion thereof, paying such duties only as the inhab-
itants of the country, where the said property lies,
shall be liable to pay in like cases^"

The Act of LoutBiana does not make any discrim-
ination between citizens of the State and aliens in
the same circumstances, and was nothinir more
than the exercise of the power which eyery State
or sovereignty poesesses.

The Treaty does not regulate the testamentary
dispositions of citizens or subjects of the oontract-
ing powers, in reference to property within the
country of their origin or citizenship.

The case of a citizen or subject of the respective
countries residing at home, and disposing of prop-
erty there in favor of a citizen or subject of the
other, is not embraced in this article of the Treaty.

Argued Apr. £5, 1860. Decided May 4, 1860.

IN ERROR to the Supreme Court of Louisi-
ana for the Eastern District.

This case arose upon opposition made by the
State of Louisiana to the account filed in the
settlement of the succession of John David
Fink, deceased, in the Second District Court
of New Orleans. The State claimed a "tax of
ten per cent, on the amount of certain legacies
left by said Fink, one of her citizens, to certain
subjects of the King of Wurtemberg.

The levying of the « tax was resisted on the
ffround that me legatees were exempt there-
from by virtue of the third article of the Con-
vention of Wurtemberg of April 10, 1^. The
said court entered a judgment allowing the
State the tax claimed.

The Supreme Court of the State of Louisiana
having affirmed tills judgment, on appeal, the
defendants sued out this writ of error.

A further statement of the case appears in
the opinion of the court.

Mr. Miles Taylor* for plaintiff in error:

Treaties made under the authority of the
United States are the supreme law of the land.

U. S. Const., art. 6.

The Convention between the United States
and Wurtemberg (8 Stat, at L., 588), was en-
tered into by the governments of the two coun-
tries for the advanta^ of both. Art. 8 of that
Convention was designed by Wurtemberg to
secure to her subjects at home the light to re-
ceive Inheritances falling to them in me United
States, in the same manner and on the same
terms as if they were citizens, of the United
States, as well as to obtain for those of her sub-
jects who came into the United States, the
right to dispose of their personal property by
testament, donation or otherwise; and the fact
that an emigrant from Wurtemberg became
naturalized under our laws, can have no effect
to deprive the heirs of the one naturalized of
the benefit stipulated for in their interest when
the Treaty was made. This is clear upon the
principles which should govern in the construc-
tion of treaties.

But this is not all. Under the jurisprudence
of the United States with respect to the posi-
tion of her own citizens who see fit to have
themselves naturalized in other countries, the
fact of naturalization would not work such a
change in the condition of the citizen or sub-
ject as would destroy the relations previously
existing between him and his native country,
when her interest or those of her people re-
quired those relations to continue.

678

4 Am. Law Jour., 461; Taibot ▼. Janaon, ^
Dall., 188, 152, 158.

Mr, J. P. Benjamin, for defendant in er-
ror:

1. By the terms of the Treaty itself, it does-
not include the case now before the court
This is not the case of a citizen of the United
States disposing^ of property in Wurtemberg,
nor of a subject of Wurtemberg who Idisposes^
of property In the United States; but it is the
case of one of our own citizens dying at home
and disposing of property lying within the
State of which he was a citizen and in which
he died.

2. If the case were within the Treaty, the re-
sult would be the same, because the exemption
extends only to such duties as are not imposed
on the inhabitants of the country where the
property lies. Now, by the law of Louisdana,
the duty would be levied on the legacies accru-
ing to these parties, even if they were citizens
of Louisiana. Our own citizens are compelled
to pay this tax, if they reside abroad.

The State v. P&ydrae, 0 La. Ann., 166.

8. The United States had no power by treaty
to interfere with or control the right of the
State of Louisiana to tax property within its
limits, or to control or fegulate the descent of
property in the State. These powers were not
conferred by the States on the Gleneral GoTern-
ment, and remain vested in the State.

Const. U. S.p Olh Amendment;- see, also.
Federalist, Nos. 82 and 84; Sto. Const., sec.
1508, and authors there cited.

Mr. JufftUie Campbell delivered the opinion
of the court:

The defendant in error made opposition to
the account filed in the settlement of the suc-
cession of John David Fink, deceased, in the
Second District Court of New Orleans, because
the executor did not place on the tableau toi
per cent, upon the amounts respectively al-
lowed to certain legatees, who are subjects of
the King of Wurtemberg. By a statute of
Louisiana, it is provided that "each and every
person, not being domiciliated in this State.
and not being a citizen of any other State or
Territory in the Union, who shall be entitled.
wheUier as heirs, legatee, or donee, to the
whole or any part of the succession of a person
deceased, whether such a person shall have
died in this State or elsewhere. shaU pay a tax
of ten per cent, on all sums, or on the v«lue
of all property which he may have actually re-
ceived from said succession, or so much there-
of as is situated in this State, after deducting
all debts due by the succession." The claim
of the State of Louisiana was resisted in the
district court, on the ground that it is oontnur
to the provisions of the third article of Uie Con-
vention between the United States of America
and His Majesty, the KinjB[ of Wurtemberg, of
the 10th April, le^. That article is, that
" The citizens or sublects of each of the con-
tracting parties shall have power to dispose of
their personal property within the States of the
other, by testament, donation, or otherwise;
and their heirs, legatees and donees, being cit-
izens or subjects of the other contracting party,
shall succeed to their said personal property.
and may take possession thereof, either bj
themselves, or by others acting for them, and

«4 9.&

1850

Bbll v. Vickbburo.

44a-445

dispose of the same at their pleasure, paying
sudi duties only as the inhabitants of the coun-
try, where the said property lies, shall be liable
to pay in like cases." This court, in Mager y.
QHma, 8 How., 490, decided that the Act of
the Legislature of Louisiana was nothing more
than the exercise of the power which every
State or sovereignty possesses of regulating the
manner and terms upon which property, real
and pefBonal, within its dominion, may be
transmitted by last will and testament, or by
inheritance, and of preecribinff who shall and
who shall not be capable oi taking it. The
case before the District Court in Louisiana
concerned the distribution of the succession of
a citizen of that State, and of property situated
there. The ^ct of the Legislature under re-
view does not make any discrimination be-
tween citizens of the State and aliens in the
same circumstances. A citizen of Louisiana
domiciliated abroad is subject to this tax. Ths
StcUev, BoydroB, 0 La. Ann., 165; therefore,
if this article of the treaty comprised the suc-
cession of a citizen of Louisiana, the complaint
of the foreign legatees would not be -justi-
fied. They are subject to "only such outies
as are exacted from citizens of Louisiana under
the same circumstances." But we concur with
the Supreme Court of Louisiana in the opinion
that the Treaty does not regulate the testament-
ary dispositions of citizens or subjects of the
* contracting powers, in reference to property
within this country of their origin or citizen-
ship. The cause of the Treaty was, that the
pitizens and subjects of each of the contracting
|x>wer8 were or might be subject to onerous
taxes upon property possessed by them within
the States of the other, by reason of their alien-
age, and its purpose was to enable such per*
sons to dispose of their property, paying such
duties only as the inhaoitants of the country,
wh^e the property lies, pay under like condi-
tions. The case of a citysen or subject of the
respective countries residing at home, and dis-
posing of property there in favor of a citizen or
subject of the other, was not in the contempla-
tion of the contracting powers, and is not em-
braced in this article of the Treaty. This view
of the Treaty disposes of this cause upon the
grounds on which it was determined in the Su-
preme Court of Louisiana. It has been sug-
gested in the argument of this case, that the
Government of the United States is incompe-
tent to regulate testamentary dispositions or
laws of inheritance of foreigners, in reference
to property within the States.

The question is one of great magnitude, but
it is not important in the decision of this cause,
and we consequently abstain from entering up-
on its consideration.

The judgment of the Supreme Ooi^t of Louisi-
ana, i» affirmed.

THOMAS BELL. Plff. in Br.,

THE MAYOR AND COUNCIL OF THE

CITY OF VICKSBURG.

(See S. C, 28 How., 448-445.)

Affldavit to pleading, tehen waived by demurrer
— pleading, when demurrable by state law far
want of nteh affidavit.

See 28 How.

Plea of rum est factum was filed without an affi-
davit of its truth, whloh Is required by a statute
of Miflslflsippl to authorise Its reception. Held, that
the flliner of the plea is only Irrc^lar, and a de-
murrer or replication to it is a waiver of the affi-
davit, upon toe general principles of pleadinir.

But in courts of States in which this statute
exists, a plea of rum eet /octura, without the affi-
davit required by it, is demurrable. Such is the
practice in Mississippi.

The circuit court may maintain the rules of
pleading prescribed by the statutes of a State, or
adopt the usual practice in the state, if not con-
trary to an Act of Congress.

Where the practice in the circuit court conforms
to the state practice, it would be a surprise upon
the plaintiff, and might work injustice, If we were
to sustain the plea under such circumstances.

Argued Mar. SO, 1860. Decided May 4. 1860.

rr ERROR to the Circuit Court of the United
States for the Southern District of Missis-
sippi.

The history and facts of the case sufficiently
appear in the opinion of the court.

Mr. J. P. Benjamin* for plaintiflPs in error:

Defendants in error rely on their plea of non
eet factum, and contend that a demurrer to
such plea cannot bQ maintained. This is un-
doubtedly true at common law, but the State of
Mississippi has.by statute, changed the common
law on this subject, and the Circuit Court of
the United States in that circuit has adopted the
Mississippi law on the subject of pleading.
This fact need not appear on the face of the
record, for it is judicially known to the court.
Now, the Statutes of Mississippi on this subject
provide "that no olea in abatement shall be
admitted or received, unless the parties offering
the same shall prove the truth thereof by oath
or affirmation, as the case may require; and no
plea of non eet faetum offerea by any person
charged as obligor, covenantor or guarantor of
a deed, shall be admitted or received, unless the
truth thereof shall in like manner be proved by
oath or affirmation.

Hutch. Dig.. 846.
" Whenever any suit shall be commenced in any
of the courts of this State, founded on any writ-
ing, whether the same be under seal or not. the
court before whom the same is depending shall
receive such writing as evidence of the debt,
promise, undertaking or dutv for which it was

?;iven, and it shall not he lawful for the dc-
endant or defendants to deny the execution of
any such writing, unless it be by plea supported
by affidavit of the truth thereof, to be filed
therewith at the time such plea is filed.

See, also. Rev. Code of Miss., 518.

These statutes speak for themselves. The
plea in question was filed unlawfully, and was
not a legal denial of the execution of the bond
sued on. because not supported by " affidavit of
the truth thereof, filed therewith."

The transcript contains the whole record as
certified, and this court cannot presume, in op-
position to the certificate, that the affidavit was
filed.

The plaintiff had, it is true, the right to move
the court to strike out the plea, but he had also
the right to question its sufficiency by demurrer.

The plain meaning of the statute is. that the
plea of non eet faetum, unless accompanied by
affidavit of its truth, shall not be sufficient in
law on its face to constitute a denial of the fact
of the execution of the deed. In Mississippi,
under the statute, the plea would be treated at

579

455-457

SUFRBHB GOUBT OF THlfi UnITBD STATBS.

Dkc. Tbrm.

anv stage of the cause as a nullity, being ** de-
ficient in one of the substantial requisites of the

statute." „

PrewiU v. BenneU, 7 8. & M., 101 ; Templston
V. Planters* Bank, 5 How. Miss., 171.

But the plea was properly demurred to as de-
fective under the law. ana the demurrer was
the proper and regular mode of disposing of it,
under the law of Mississippi.

8mUh V. Bank. 6 Sm. & M., 814; Johnston
Y. Beard, 7 8m. &M.,2t4.

The construction put by the state courts on
their own statutes is, of course, adopted by this
court, under its repeated decisions.

CathGartY. Benson, 5 Pet., 264; McCraeken
V. Hayward, 2 How., 612.

Finally, the judgment of the court below was
erroneous, even if the demurrer was properly
overruled. Under the Mississippi practice, the
judgment should not have been final, but re-
spondsat ouster.

Bandolph v. Singleton, 12 8m. & M., 489.

Messrs. OeorM E. Bsbdgev and J; M.
Carlisle* for defendants in error:

As to the plea of non est factum, it is sup-
posed that the objection may be, that the plea
was not verified by the oath or affirmation of
•*the party ofTering the same."

How. & Hutch. Dig., tit. Pleading and Prac-
tice. 589. ^ ^ „,^ ...J

To this it may be answered : 1st. That it does
not appear that there was not the required affi-
davit. It is no part of the plea, and is not
nece^rily a part of the record. In the court
below, so far as appears by the record, no ref-
erence was made to the supposed absence of an
affidavit, and upon this writ of error it will be
presumed that there was an affidavit if neces-
sarv. as Ihe plea was received and treated as a
plea! and its sufficiency and substance ques-
tioned by general demurrer.

2d. It IS the office of a demurrer to call in ques-
tion the sufficiency of a declaration, plea, &c.,
upon what appears on ite face, without refer-
ence to any extrinsic matter; but the affidavit is
no part of the plea; it may be waived, either
expressly or by implication. . . ^. . ,

1 Ch. PI., chap. 9; Steph. PL, 44; Buhmond
V. raBwiod^tf. 16 Johns.. 811. ^ ,

The filing of the plea without an affidavit is
an irregularity; but if the plaintiff treats it as
a plea pleaded, he has waived the objection.

See Bray v. HaUer, 2 J. B. Moore, 218; Box
V. Cook, 2 Bam. & C. 618.

And as to the precise question here, it has
been expressly ruled by this court on a special
demurrer for want of an affidavit, in Bank
V. Sloeomb, 14 Pet.. 60. a case arising under
the same statute of Mississippi. The court said
that it could, at most, only have been urged
a** an objection to the receiving of the plea, but
could not be relied on as ground of demurrer.

Mr. JtisUee Campbell delivered the opinion

of the court: , , . ,. i j

The plaintiff Instituted this suit upon a sealed
instrument, made in the name of the City of
Vicksburg. payable to bearer. The defendant
pleaded fifteen pleas; to ten of which the plaint-
iff demurred, and judgment was rendered for
the defendant on the demurrer. Some of these
pleas involved important questions touching
the validity of the instrument, which have,

5«0

since the decision of the circuit court, been the
subject of discussion in the Supreme Court of
Mississippi and in this court. It is conceded
that nine of the pleas were insufficient, and
that the demurrers should have been sustained
to them. The remaining plea is the ordinanr
non est factum. This was filed without an affi-
davit of its truth, and this is required by a statute
of Mississippi to authorize its reception. But
the defendant contends that it is the oflSce of
a demurrer to call in question the sufficiency of
a declaration or other pleading upon what ap-
pears upon its face, without reference to any
extrinsic matter; that the affidavit is not a part
of the plea; it is only that which is necessary
to authorize the plea to be placed on file, and it
may be waived either expressly or by implica-
tion. The filing of the plea is only irregular,
and a demurrer or replication to it is a waiver.
Upon the general principles of pleading, we
assent to the accuracy of this argument.

Commercial d B. B. Bank of Viektimrg r.
JSlocomb, 14 Pet., 60; NiehoU v. Mamm, 21
Wend., 889.

But in courts of states in which this statute
exists, a plea of non est fdetum, without the
affidavit required by it. is demurrable. Such is
the practice in Mississippi.

Smith V. Com. Bank of Bodney, 6 8m. & M.,
88: Johnston v. Beard, 7 Sm. & M., 214; Ban.-
croft V. Paine, 15 Ala.. 884; 4 Ala., 19a

We do not question the power of ihe circuit
court to maintain the rules of pleading in the
manner of applying the statutes of a State, or
it may adopt the usual practice in the State, if
not contrary to an Act of Consress.

We learn that the course of practice in the
circuit court conforms to the state practioe.
We suppose that it would be a surprise upon
the plaintiff, and might work injustice,^ if we
were to sustain the plea under such drcum
stances. #

Judgment reversed and cause remanded.

CHARLES E. JENKINS. MOSES KNEE^
LAND AND JACKSON HADLEY, Pff'

in Br., ^

WILLIAM S. BANNING.

(See 8. C, 28 How., 456-457.)

When judgment will be affirmed with Un per
cent, damages — amendments aUowed to jdmd
ings, not grounds of error.

Where defendants, oo refusiufir or netrlectfoc to
plead, were defaulted and Judgment was giTeii
for plaintiff, and defendants sued out a writ
of error, but failed to appear, and have doC a#-
slff ned error in this court, and it is obTlous. fktMo
an Inspection of the transcript, that then is no
error m the proceedings, the Judirment alllnnea.
with ten per cent, damaires. ^

Motions to amend mere formal defects in the
pleadiDfiTB are always addressed to the dlscivtioD
of the court, and their allowance is never the sab>
Ject of error.
Argued Apr. SO, 1860. Bedded May ^ 1860.

IN ERROR to the District Court of the United
States for the District of Wisconsin.
The history and facts of the case suffldenUy
appear in the opinion of the court.

No counsel appeared in this court for pbint
iffs in error.

o4 l/« 5*»

1S59.

Whitiudgb' v. Dill.

44^-465

Mr, R. H. CHllett for defendants in error:

First. The practice of an inferior court is
not the subject of review upon a writ of error.

Marine Ins. Co. of Alexamdria y. Hodgton, 6
Cranch, 206; QimfMY. Hundley, 6 How., 1;
Turner v. TaUi, 16 How., 14, p. 29.

Second. The amendments permitted to be
made to the plaintiff's declaration, were within
the discretion of the court below, and cannot
be reviewed or reversed on error.

The reasoninsr and cases cited under the pre-
ceding point fully sully sustain the above posi-
tion.

Third. The assessment of the damages by the
court below on a default, is not the subject of
review upon a writ of error.

Fourth. There being no ff rounds for an arrest
of judgment on account or incurable defects in
the declaration, there can be no error in the
judgment which can be reviewed and corrected
by this court.

Not a solitary objection was made to any pro-
ceeding in the court below. It follows that
there is no error to correct, and the judgment
must be affirmed.

Mr. Justice ClilTord delivered the opinion
of the court:

This case comes before the court upon a writ
of error to the District Court of the United
States for the District of Wisconsin. It was an
action of debt upon a judgment recovered by
the present defendant against the plaintiff in
error, in the District Court of thb United States
for the Second Judicial District of the Terri-
tory of Minnesota. As originally framed, the
declaration did not contain any caption speci-
fying the term of the court when u was nled,
or the return day of the process on which it was
founded. In point of fact, it was filed on the
8(Hh day of December, 1807, and the process
was regularly returnable to the succeeding Jan-
uary Term of the district court, to which this
writ of error issued. Service of the summons
upon the defendants was duly made on the fol-
lowing day, and the record shows that they
subsequently appeared and demurred to the
declaration, showing for cause the formal de-
fects before mentioned. On the 18tb day of
January, 1858, the plaintiff, by leave of the
court, amended his declaration, obviating the
defects shown by the demurrer.

No exceptions were taken to the order of the
court granting leave to amend, and, for aught
that appears to the contrary, the amendment
wsLs made without objection.

After the amendment was allowed, the court
overruled the demurrer, and the defendants re-
fusing or neglecting to plead to the merits of
the case, they were defaulted. Whereupon the
plaintiff moved for judgment, and filed a duly
certified copy of the former judgment on which
the suit was founded. Reference was then made
of the cause to the clerk to compute the inter-
est, and on his report being made in writing,
judgment was given in favor of the plaintiff
for the amount of the former judgment, to-
gether with interest on the same.

On this state of the record, the defendants
sued out a writ of error, and removed the cause
into this court, but have failed to appear and
prosecute their writ of error. They did not ex-
cept to the ruling of the district court, and have

See 23 How.

not assigned error in this court, and it is ob-
vious, from an inspection of the transcript, that
there is no error in the proceeding. Motions to
amend mere formal defects in the pleadings are
always addressed to the discretion of the court,
and are usually granted as a matter of course,
and their allowance is never the subject of er-
ror. That point has been so frequently decided,
that we do not think it necessary to cite au-
thorities in its support.

Under these circumstances, the counsel for
the defendant in error moves that the judgment
be affirmed, with ten per cent, damages, fiy the
twenty-third rule of this court, it is provided
that in all cases where a writ of error shall de-
lay the proceedings on the judgment of the in-
ferior court, and shall appear to have been sued
out for delay, damages shall be awarded at the
rate of ten per centum per annum on the
amount of the judgment, and the said damages
shall be calculated from the date of the judg-
ment in the court below, until the money Is
paid.

ITuU rvU is appUeable to thie eaee, and the
judgment ie aceordingly aJUWrned, unth eoste and
ten per cent, damagee.

Cited— 11 Wall., 676.

THOMAS WHITRIDGEbt AL., Claimants of
the Schooner Fannib Crockeb, Appts.,

JOSHUA DILL BT AL.

(See B. C, 88 How., 448-466.)

Collision between two schooners — want of lookout
— rules oftessel astern passing the vessel ahead.

In case of ooUision in Chesapeake Bay, between
two sohooners. In the evening, the vessel of the re-
spondents was beld in fault because she bad no
lookout ; and the neglect of that precaution con-
tributed to the disaster, and in all probability was
the sole cause that produced it.

If tbe vessel of the respondents wasnotsuffldent-
\y to the windward to have passed the other vessel
in safety, then she was also in fault, because she
did not seasonably give way and pass to the right,
or adopt necessary precautions to pass in safety.

Where a vessel astern, in an open sea and in good
weather, is sailing faster than the one ahead, and
pursuing the same general direction, if both vessels
are close-hauled on the wind, the vessel astern, as
a general rule, is bound to give way, or to adopt
the necessary precautions to avoid a collision.

The vessel ahead, on that state of facts, has the
seaway before her, and is entitled to hold her
position.

Argued Apr. 27, 1860. Decided May 4, 1860,

APPEAL from the Circuit Court of the Unit-
ed States for the District of Maryland.
The libel in this case was filed in the District
Court of the United States for the District of
Maryland, by the appellees, to recover dam^
ages' resulting from a collision. The district
court entered a decree in favor of the libelants
for the full value of the vessel and cargo. This
decree having lieen affirmed, on appeal, by the
circuit court, the respondents took an appeal to
this court.

NOTK.— CoUMon. Measure of damages for. See
note to Smith v. Condry. 4S U. S. (1 How.), 28, and
note to The Amiable Nancy. 16 U. S. (3 Wheat.),
646. Rights of steam and saUinfj vessels with refer'
ence to each other, and in pasadnaand meeting. See
note to St. John v. Paine, 61 U. B. ao How.), 667.

44a-466

BUFBEMB Ck>nBT OF THB V'STTED BTATBS.

Dbc. Tbsm,

A further statement of the case appears in the
opinion of the court.

Messrs, Qreovge W. Brown and F. W.
Bninet Jr.* for appellants.

Mr. John H. B. Latrobot for appellees:

The colliding vessel was clearly and alone
in fault.

1. Because here was no proper lookout.

2. Because, even after The Smith was seen,
there was negligence in not taking the proper
means to avoid the collision.

In support of these positions, the following
authorities are relied on :

8t, John V. Paine, 10 How., 586; Newton v.
StMiTis, 10 How., 607: T?ie Genesee Chief v.
FUahugh, 13 How., 481; The New Y(/rk, 60 U.
8. (18 How.), 226; Wood v. Davie, 69 U. S.
(18 How.). 467; Chamberlain v. Ward, 62 U. 8.
(21 How), 670; The Catharine v. Dickinson,
58 U. 8. (17 How.), 177; The Europa, 2 Eng.
L. & Eq., 667; The Netherlands Steamboat Co,
V. Styles 9 J. B. Moore, 286.

Mr, Justice ClilTord delivered the opinion
of the court:

This is an appeal from a decree of the Cir-
cuit Court of the United States for the district
of Maryland. The libel was filed in the dis-
trict court on the 81st day of March, 1856. It
was a proceeding in rem against the schooner
Fannie Crocker, and was instituted by the libel-
ants as the owners of the schooner Henry R
Smith, to recover damages on account of a col-
lision which took place between those vessels
on the 9th day of March, 1866, in the Chesa
peake Bav, whereby the latter vessel was run
down and totally lost. As alleged bv the libel-
ants, their vessel sailed the day previous to the
collision, from Hampton Roads, in the State of
Virginia, laden with a valuable cargo of oys-
ters, and bound on a voyage to New Haven, in
the State of Connecticut.

They also allege, that at half past eight
o'clock in the evening of the day of the collision,
the wind being then fiom the northwest, and
blowing a fresh breeze, and when their schooner
was heading one point to the eastward of
north. close-hauled on the wind,another schooner
was seen on their larboard quarter, about one
third of a mile distant: that the strange
schooner sailed faster than the vessel of libelants,
and soon came up with and abeam of their ves-
sel, when she put her helm up, bore away, and
coming down on the vessel of the libelants,
head on, struck' her abreast the cabin, and so
damaged her that she sunk in a few minutes,
leaving the master and crew only time to escape
on board the colliding vessel.

Man^ other facts and circumstances are
stated m the libel to show that those on board
the vessel of the libelants were not in fault, and
that the collision was accasiondd wholl v through
the unskillfulness and negli^nce of those in
charge of the vessel of the claimants. In their
answer, the claimants admit the collision, and
that the vessel of the libelants was lost, but they
deny that the circumstances attending the dis-
aster are truly stated in the libel.

According to their account of the circum-
stances, it became necessary for The Fannie
Crocker, between eight and nine o'clock in the
evening of that dav, and Just before collision, to
tack, in order to after her course. At that time,

682

as they allege, she was heading towards the
southern and western shore, but beinfl^ under a
double-reef mainsail, foresail and jib, and m
ballast trim, she failed to go round. Similar at-
tempts, as they allege, were several times re-
peated, but without success. Finding that the
vessel would not go round, the master then
gave the order to wear ship, and in executing
that order the main peak was lowered to enable
the vessel to wear rapidlv; but when the main
boom passed over the deck, the wind caught
the sail and threw it over the mun saff, and
tore the sail from the ieech-rope, rendering it
perfectly useless. While assisting to execute
this order, one of the seamen had Mb 1^ caught
in the fore sheet, and was severely injumi.when
all hands, except the master, who was at the
wheel, went to relieve the seaman. After dis-
engaging the seaman from his dangerous situa
tion, the rest of the hands, as the claimants al-
lege, were called to haul in the mainsail, which
was then dragging in the water, and at this
juncture another vessel, which subsequently
proved to be the schooner of the libelants, was
seen on the starboard quarter of the claimants'
vessel, some three or four lengths oif . In order
to prevent the two vessels from coming in con
tact, the claimants allege that the helm of their
vessel was put hard up. with a view to «> toUie
stern of the strange vessel ; but the effort was
unavailing, and the two vessels came togi^ther.
and, as the claimants alleee, wholly throu^
the carelessness and unskillful management of
those in charge of the other vessel, in not alter-
ing their course in proper time to avoid a col-
lision.

Some particularity has been observed in
stating the defense, in order that the respond-
ents may have the full benefit of the position
they have assumed.

Two witnesses only were examined, on the
part of the libelants, in respect to the circum
stances of the disaster. In the district court a
decree was entered for the libelants, allowing
them the full value of their vessel and cargol
and on appeal to the circuit court, that. decree
was afilrmed : whereupon the respondents ap-
pealed to this court.

From the pleadings and evidence, it satisfac-
torily appears that The Henry R Smith was a
schooner of one hundred and thirty-four tons,
and that she was laden with oysters, and bound
on a voyage to New Haven, in the State of
Connecticut. She was a stanch vessel, well
lAanned and equipped, showed a proper tight at
the time of the collision, and had a suflicient
and competent lookout. On the other hand.
The Fannie Crocker was a schooner of two
hundred and twenty -two tons.sailizif in ballast,
and was bound on a voyage from Dighton, in
the State Massachusetts, to Baltimore, in tht
State of Maryland. Like the other vessel, she
was stanch, and well manned and equipped,
but failed to show a light at the time of the
collision, and had no sufficient lookout sta-
tioned on any part of the vessel. All of the wit-
nesses state that the ni^ht was clear, and thai
there was no difficulty m seeing objects, with
out lights, at considerable distance. They meo-
tion no circumstance tending to authorize the
conclusion that the collision can be justified or
excused on account of the character of the
night or the difficulties of the navigation. Oc-

64 U.S.

1859.

Whttbidos v. Dill.

448-45^

<;uiTing, as it did, inside of the capes,, in the
-open Imy, of a clear night, with no difficulties
to encounter, except a fresh breeze from the
northwest, it is obvious that one or both of the
vessels must be in fault. They were both sail-
ing in thp same general direction ; but the vessel
of the respondents, being in ballast, and the
larger of the two, was moving through the
water at the greater speed. She was astern of
the other vessel, and somewhat to the windward,
but was sailing on a line converging to the
track of the other vessel ; and both vessels were
•close-hauled on the wind.

Terry, the mate of the libelants' vessel, says
when he first saw the other schooner, she was
half a mile distant on tlie weather quarter. At
that time both vessels were on the wind and
standing the same way — to the northward and
•eastwara. According to his account, the vessel
-of the respondents sailed faster than the vessel
of the libelants, and rati down until she got
abreast of her to the windward, when she was
about fifty rods distant. He also states, that
when they first saw that she was coming down
on them, they put the helm of their vessel up,
and tried in every way to keep clear of her, but
could not, as she had lalleri oif from her course,
and was then before the wind.

Another witness (a seaman) was also ex-
amined by the libelants. His testimony sub-
stantially confirms the mate, and clearly shows
that the vessel of the libelants was ahead, and
that the other vessel was to the windward, and
moving through the water much faster than
the vessel of the libelants.

Both witnesses testify, in effect, that the ap-
proaching vessel, when she was nearly abreast
of their vessel, fell off and struck the vessel of
the libelants on the larboard quarter, as alleged
in the answer. They both affirm that they had
4i sufficient and competent lookout and proper
lights.

Several witnesses were also examined on the
part of the respondents. Their account of the
circumstances attending the disaster differs in
several particulars from that nven by the wit-
nesses examined by the libelants. They all
agree, however, that the vessel of the libelants
was not seen by anyone on board their vessel
until she was so near that all efforts on their
part, to prevent a collision, were unavailing.

In effect, they also admit that their vessel, at
the time of the collision, had no lookout en-
.ga^ed in the performance of that duty. On
this latter point, the master savs that he had di-
rected the steward, a colored man, to keep a
lookout, and adds, that he was somewhere
about the main deck. But all hands had been
called to haul in the mainsail, and the second
mate states that he first saw the vessel of the
libelants while he was engaged with the other
hands in endeavoring to accomplish that object.
When he saw the vessel, he says she was only
about three times the length of his vessel off.
At that time, all the hands, except the stewiuxi.
were aft the mainsail, where they could not see
the other vessel without changing their position.
She was first descried by the second mate as he
stepped upon to the " lazy bo^rd," so called, in
order to haul up the damaged sail. He then
cried out to the master to put the helm down,
but the mate at the same time sung out to put
the helm up. In this confusion the master

See 28 How.

adopted the suggestion of the mate; and he ad-
mits that the steward, when the alarm was
given, came running aft, 'and assisted him in
changing the helm.

Two other witnesses state that the steward
assisted the master in putting up the helm; and
one of them says that no particular person was
keeping watch, and attempts to justify the n^-
lect upon the ground that it is not customary
to have a man forward when all hands are called
to take in the sails.

Suffice it to say, without entering more into
detail, that the testimony of the respondents
shows, conclusively, that their vessel had no
sufficient lookout at the time of the collision;
and the second mate, who first discerned the
vessel of the libelants, testifies, without qualifi-
cation, that if they had seen her three or four
minutes sooner, they could have cleared her
and prevented a collision.

From tl^ese facts, which are proved beyond
doubt, it necessarily follows that the vessel of
the respondents was in fault. She had no look-
out; and the neglect of that precaution contrib-
uted to the disaster, and in all probability was
the sole cause that produced it.

2. Assuming that Uie vessel of the respond-
ents was not sufficiently to the windward to
have passed the other vessel in safety, then she
was also in fault, because she did not season-
ably give way, and pass to the right. Where
a vessel astern, in an open sea and in good
weather, is sailing faster than the one ahead,
and pursuing the same general direction, if
both vessels are close-hauled on the wind, the
vessel astern, as a general rule, is bound to give
way, or to adopt the nesessary precautions to
avoid a collision. That rule rests upon the
principle that the vessel' ahead, on that state of
facts, has the seaway before her, and is entitled
to hold her position; and consequently, the
vessel coming up must keep out of the way.

Speaking of steamers. Judge Betts said, in
the case of The Governor, Abb's. Adm., 110,
that the fact that they were runnine in the same
direction, the one astern of the other, imposed
upon the rear boat an obligation to precaution
and care, which was not chargeable, to the
same extent, upon the other. He accordingly
held, that a vessel in advance is not bound to
give way, or to give facilities to a vessel in her
rear, to enable such vessel to pass; but that the
vessel ahead is bound to refrain from any
maneuvers calculated to embarrass the latter
vessel while attempting to accomplish that ob-
ject. Similar views had previously been an-
nounced by the same learned judge, m the case
of The Steamboat Rhode lOani, decided in 1847.
In that case, it is said the approaching vessel,
when she has command of her movements,
takes upon herself the peril of determining
whether a safe passage remains for her beside
the vessel precealng her, and must bear the con-
sequences of misjudgment in that respect.
No immunity is extended by the law to the one
possessing the greater speed ; and so far from
encouraging the exercise of the power to its ut-
most, the law cautiously warns and checks ves-
sels propelled by steam against an improvident
employment of speed, so as to involve danger
to others, being stationary or moving with lesa
velocity. Olcott, Adm., 515.

That case was appealed to the circuit court,

58»

457-464

SuPBKicB Court of thb Unitbd Btatbb.

Dbc. Tmbm,

where it was affirmed. The Khods Island, 1
Blatchf., 863.

EmerigOD says, a ship going out of a port last
is to take care to avoid the vessel that has gone
out before her, and he mentions the case of a
small vessel which went out of the port of Mar-
seilles, and in tacking struck a boat that went
out before her, which was also tacking. Claim
for damages was made by the boat, and the
Judges were of opinion that the vessel going
out last is to take care to avoid the one before
it. Emerigon, chap. 12, sec. 14, p, 830. Other
continental authorities may be cited to the
same effect. Whether it be by night or day,
says Yalin, b. 2. p. 678, the ship that leaves
after another, and follows her, should take care
to avoid a collision, without which she will
have to answer in damages. Sibille de Abord
age, sec. 240.

We are not aware that the precise question
presented in this case has been ruled by any of
the federal courts. Reinarks are certainly to
be found in the opinion of the court in the case
of Tlie Clement, 17 Law Rep., 444, which are
inconsistent with the proposition here laid down.
That case was appealed to the circuit court,
and was there affirmed. But the remarks to
which we refer were not necessary to the de-
cision of the cause^ and we think they must be
received with some qualification. The Cle-
ment, 2 Curt. C. C, 868, sec. 1; Pars. Mar.
Law, p. 107. note 2.

Without further discussion of the general
principle at the present time, it will be sufficient
to say. that we are satisfied that the rule as-
sumed in this case is one well calculated to
prevent collisions, and that it is one which
ought to be constantly observed and enforced
in all cases where it is applicable. That ex-
ceptionable cases may arise, is not at all im-
probable; but it will be the proper time to con-
sider them when they are presented for decis
ion. For these reasons, we are of the opinion
that the vessel of the respondents was wholly
in fault. Objection was made to the damages
an excessive, on the ground that the vessel
might have been raised from where she was
sunk. After a careful examination of the testi-
mony, we think the objection cannot be sus-
tained.

The decree of the drcuil court w, iherrfore, af-
firmed, with costs,

Cited-7 WaU.,fle: U Wall., 275; 23 WaU., aS; 91
U. 8., a09 ; 8 Cliff., 461 ; 14 Mott A H., 480.

JOHN DOE, ex dem., Curtis Mann and
DoLPHUa Hannah, Pljfs. in Br.,

WILLIAM WILSON.

(See S. C, 28 How., 467-464.)

IVeatywith Pottawatomie Indians — reservations
to individuals of the tribe— grant by one, of his
lands — when ffrantee's title perfected.

By the Treaty of October 27, 1882, the Pottawato-
mie Indians oeded to the United States their title and
interest in and to their lands in the States of Indi-
ana and Illinois, and the Micbi^n Territory, south
of Grand River, and reservations were made In fa-
vor of individual Pottawatomles, and to complete
their title to the reserved lands, the United States

^84

agreed that they would issue patents to the re^
spective owners.

The reservees took oy the Treaty, directly ftom
the Nation, the Indian title, and this was the right
to occupy, use, and enjoy the lands, in common
with the united States, until partition was made.
The Treaty itself converted the reserved sections
into individual property.

Although the arovemment alone can purchase
lands from an Indian Nation, yet when the rights
of the Nation are extinguished, an individual of
the Nation who takes as private owner can sell hi*
reserved interest.

When the United States selected the lands re-
served to him, and made partition (of which the
patent Is conclusive evidence) his grantees took
the interest be would have taken if living.

Argued May 1, 1860, Decided Map 4, 1860.

IN ERROR to the Circuit Court of the United
States for the District of Indiana.

This was an action of ejectment brought in
the court below, by the plaintiffs in error, to Te-
oover the possession of two sections of land, in
Laporte County, Indiana.

The trial befow having resulted in a verdict
and Judgment in favor of the defendant, the
plaintiffs sued out this writ of error.

A further statement of the case appears in
the opinion of the court.

Messrs, S, S. Baxter* O. H. Smith and
J. A. LUton» for plaintiffs in error:

I. The third article of the Treaty of the 27th
Oct., 1882. was a mere executory promise of
the United States to grant in future and by
patent to Pet-chi-co, two sections of land, lobe
thereafter selected by the President. This
promise was to be performed by the Politica]
Department, and before its performance, could
create no inchoate title or estate in Pet-chi-co to
any lands

LongloisT. Coffin, 1 Ind., 446; Verdenv.Cole
man, 4 Ind., 457: Haden v. Ware, 15 Ala..
158; FippsY, McGehee, 5 Port, 418; Johnson
y. McGehee; 1 Ala.. 186.

And this being a mere executory promise to
be executed by the Political Department, was
not assignable, and the effort was against public
policy, and could conyey no estate to the as-
signee, or give him any right to the land.

Lampet case. 10 Co., & b, AS a; 4 Cruiee,
174, tit. 82. ch. 6. sec. 46: Cdrleton y. LeM'
ton, 8 Mer., 670; Doe v. Martin, 8 Bam. & C..
15 Com. Law, 288; 4th sec. of Act of July 22.
1790. 1 8. L., 138; 12th sec. of Act of 1802, 2
S. L., p 148; opinion of Mr. Taney on Treaty
of 20th Oct., 1852, 2 Opinions. 588; Jackson y.
Wood, 7 Johns., 294; OoodeU y. Jackson, 20
Johns., 706. 708.

The deed from Pet-chico is inoperative.

First. Because no estate in the lands then ex-
isted.

Second. Because it conveys no specific land.

The description, whether we look to the sub-
ject conveyed or the title, is too vague to con-
vey any property.

Third. It is void as to subsequent purchasers,
because not recorded until February 27, 1856.

Rev. Stat. Ind., 1848, ch. 28. sec. 25, p. 418.

It was not filed in any department of the
government, and has never received the sanc-
tion of any ofllcer of the government.

U, 8, y. King, 8 How., 786, 787.

The Act of May 20. 1836 (5 Stat at L., p.
81). vesting the estate of persons who died be-
fore patent issued in the heirs or assignees of
such person, will not vest the title in 0>lerick.

M4 U. S.

1869.

Dob v. Wilson.

457-464

Coquillard or Wilson, because they are not such
assignees as were contemplated by that Act.

Bee Landes v. BrarU, 10 How., 848; Stod-
dard v,0h4Mmb&rs, 2 How.. 816; BiueU y. Pen-
rose, 8 How.. 317; French v. Spencer, 62 U. 8.
(21 How.), 228.

It was not intended to grant the estate of a
dead man to an assignee by an instrument not
recognized b}' law, never recorded, never pro-
duo^ to the Land Office, and on which, if pro-
duced, the office could take no action.

IL The patent of Jan. 7, 1887, was the first
act severing this land from the public domain,
and vesting an estate in it in any individual,
and subjecting it to the state laws.

Wilcox V. Jackson, 18 Pet., 498.

The heirs of Pet-chi-co took this newly grant-
ed estate directly from the United States.

4th Cruise, tit. 82, ch. 20. sec. 18; Sh4iw v.
Laud, 12 M:as8., 447; HaUy. Leonard, 1 Pick.,
27; 20 Johns.,706; -Hu/U v. WickUffe, 2 Pet. . 208.

The supposed deed of Pet-chi-co cannot work
an estoppel.

First. Because it was void.

Second. Because the heirs, taking nothing
by descent from Pe^chi•co. have no privity
with him as to this title.

4 Kent. 248 (221); Co. Litt., 852; J?^A^ v.
Boehester, 7 Wheat., 548.

Meser$, John B. Nilest R. Brecken-
ridge and J.U. Petit* for defendant in error:

The plaintiffs objected that the purchase
from Pet-chi-co before the location of the land
or issuine of the patents, was void as against
the Act of Congress and public policy.

We have been referred to no Act of Congress
which forbids such a purchase, and the policy
of the State of Indiana rather favors than op-
poses such sales; hence, the Legislature have
afforded peculiar facilities for the alienation of
lands held bv certificates of purchasers before
the issuing of the patent, b^ making such cer-
tificates assignable and evidence of the legal
title in the original holder or assignee.

Rev. Law, Ind., 31, pp. 08, 94; session Laws,
1838, p. 112.

A similar policy on the part of the Gteneral
(Government is indicated by the Act of Con-
gress of May 20, 1836.

5 U. S. Stat, at L., p. 81; Landee v. Brant,
10 How., 378; Galloway v. Ftnley, 12 Pet. , 264.

The next objection, that the deed is void for
want of sufficient description of the land, is
equally untenable.

See Co. Litt., 48; French y, Spencer, 62 U.
S. (21 How.), 228; 7 Stat, at L., 899; U. S, v.
Arredondo, 6 Pet., 789.

But to the last objection to the deeds, that
they could only convey an equity, we answer,
that it is immaterial what title actually was con-
veyed at the moment of their execution. It is
sufficient that by the subsequent events, and by
virtue of the doctrine of relation or estoppel, or
by the Act of Congress of May 20, 1886, they
may have become operative so as to work upon
the estate, or to estop parties and privies.

The deed under which the defendant claimed
title, sets forth that the grantor was entitled
to the land, and container full covenants of
warranty and seisin.

After the grantor's death, his right ripened
into a perfect legal title by the issuing of the
patent. His heirs and privies now claim that

See 28 How.

the 1^1 title, so acquired, inures to their bene-
fit. This would drive Wilson to his action on
the covenant. On the contrary, the doctrine of
estoppel applies, and saves the necessity for
litigation, and at once secures the ends of, jus-
tice.

See French v. Spencer, 62 U. S. (21 How.),
240; Doe v. Oliver, 2 Sm. Lead. Cas.. 588; Bush
V. Marshall, 6 How., 284; Van Bensselaer v.
Kearney, 11 How., 297.

The fourth instruction given by the court
was as follows:

**If Pet-chi-co, between the ratification of the
treaty and the issuing the patents, sold and
conveyed the land in controversy, by a suffi-
cient deed of conveyance, with covenants of
warranty to Coquillard and Colerick, and their
assigns, then the patents, when issued, as to
the assignees, related back to and took effect
from the date of the ratification of the Treaty.**

This instruction announces a well known
principle, often affirmed by the Supreme Court,
that all the several parts and ceremonies neces-
sary to complete a conveyance shall be taken
together as one act, and operate from the sub-
stantial part b^ relation.

5 Cruise, Dis., 510, 511; Jackson y, Ramsey,
8 Cow., 75: Landes v. Brant, 10 How., 848;
Boss V. Barland, 1 Pet., 655; Lessee of French
V. Spencer, 62 U. S. (21 How.), 228.

The doctrine of this instruction is strength-
ened in its application to this case by the Act
of Congress of May 20. 1886, above referred to.

The fifth instruction given by the court onlv
asserts the obvious effect of the Act of May 2d,
1836:

"If, before the issuing of patents to Pet-chi-co,.
he had bv a legal and valid instrument, assigned
to Coquillard and Colerick his interest in the
lands which were to be granted to him under
the Treaty of Oct., 1882, and if Colerick in
like manner assigned hie interest to Coquillard.
and if Coquillard had in like manner assigned
to Wilson, then, by virtue of the Act of Con-
CTcss of May 20, 1886, thepatents, when issued,
mured to the benefit of Wilson, and vested &
legal title to the land in' him, although Pet-chi-
co may have died before its date."

That in case of such a legal and valid as-
signment as is referred to in this instruction,
the patent, when subsequently issued, would,
under this Act of Congress, have inured to and
vest a legal title to the umd in theassignee,rather
than in the heirs of the patentee, is sufficiently
established by the interpretation put upon the
act by the Supreme Court in the cases above
referred to, in which the Act has received &
judicial interpretation.

Galloway y, Finley, 12 Pet., 264; Landes y.
Brant, 10 How., 348.

Mr, Justice Catron delivered the opinion of
the court:

By the Treaty of October 27, 1882, made by
the United States, through commissioners, with
the Pottawatomie tribe of Indians of the State
of Indiana and Michigan Territory, said Na-
tion ceded to the United States their title and
interest in and to their lands in the Slutesof In*
diana and Illinois, and the Michigan Territory,
south of Grand River.

Many reservations were made in favor of In-
dian villagers jointly, and to individual Potta-

58&

457-464

Sttfbemb Godbt of thb Untted Statbb.

Dec. Tebm,

watomies. The reservations are by sections,
amounting probably to a hundred, lying in
yarious parts of the ceded country. As to
these, the Indian title remained as it stood be-
fore the Treaty was made; and t<^x)mplete the
title to the reserved lands, the united States
agreed that they would issue patents to the re-
spective owners. One of these reservees was
the chief, Pet-chi-co, to whom was reserved
two sections. The treaty also provides, that
** the foregoing reservations shall be selected
under the direction of the President of the
United States, after the land shall have been
surveyed, and the boundaries shall correspond
with the public surveys."

In February, 1H38, by a deed in fee simple,
Pet-chi-co conveved to Alexis Coquillard and
David H. Colerick, of the State of Indiana,
'* all those two sections of land lying in the
state aforesaid, in the region of country or
territory ceded by the Treaty of 27th October,
1^32." The grantor covenants that he is law-
ful owner of the lands; hath good right and
lawful authority to sell and convey the same.
And he furthermore warrants the title against
himself and his heirs. Under this deed, the de-
fendant holds possession.

The lessors of the plaintiff took a deed from
Pet-chi-co's heirs, dated in 1855, on the as-
sumption that their ancestor's deed was void,
he having died in 1888, before the lands were
surveyed, or the reserved sections selected.
And on the trial below, the court was asked to
instruct the jury, *'that Pet-chi-co held no in-
terest under the Treaty in the lands in question,
up to the time of his death, that was assign-
able, he having died before the location of the
land, and before the patents issued."

This instruction the court refused to give;
but, on the contrary, charged the jury, that
'* the description of the land in the deedCs from
Petchi-co to Oo<}uillard and Ck)lerick, from
Colerick to Coquillard, and from Coquillard
to Wilson, are sufficient to identify the land
thereby intended to be conveyed as the same
two sections of land which are in controversy
in this suit, and which are described in the
patents which have been read in evidence."

It is assumed that the lands embraced by the
patents to Pet-chi-co, made in 1837, do not lie
within the section of country ceded by the
Treaty of 27lh Oct., 1882; and, therefore, the
court was asked to instruct the jury that the
defendants cannot claim nor hola the land as
assignees of Pet-chi-co, by virtue of the Treaty.
The demand for such instruction was also re
fused.

There is no evidence in the record showing
where the land granted b^ the patents lies, ex-
cept that which is furnished by the patents
themselves. They recite the stipulation in the

686

Treaty in Pet-chi-co's behalf; that the selections
for him. of sections nine and ten, bad been
made, *' as bein^ the sections to which the said
Pet-cluco is entitled " under the Treaty. The
recitals in the patents conclude all controversy
on this point.

The only question presented by the record
that we feel ourselves called on to decide is,*
whether Pet-chi-co*s deed of February, 1883,
vested his title in Coquillard and Colenck.

The Pottawatomie Nation was the owner of
the possessory right of the country ceded, and
all the subjects or the nation were joint own-
ers of it. The reservees took by the Treaty, di-
rectly from the Nation, the Xndian title; and
this was the right to occupy, use. and enjoy the
lands, in common with the United States, until
partition was made, in the manner prescribed.
The Treaty itself converted the reserved sections
into individual property. The Indians, as a
nation, reserved no interest in the territory ced-
ed; but as a part of the consideration for the
cession, certain individuals of the Nation had
confen^Bd on them portions of the land, to
which the United States title was either added
or promised to be added ; and it matters not
which, for the purposes of this controversy, for
possession.

The United States held the ultimate Utte,
charged with the right of undisturbed occu-
pancy and perpetual possession, in the Indian
Nation, with the exclusive power in the gov-
ernment of acquiring the right Johtuon v.
Afclntoah, 8 Wheat., 608; Ocnmet v. Winian, 3
Yerff., 147.

Although the government alone can pur-
chase lands from an Indian Nation, it does not
follow, that when the rights of the Nation are
extinguished, an individual of the Nation who
takes as private owner cannot sell his interest
The Indian title is property, and alienable, un-
less the Treaty had prohibited its sale. Cinut
V. Winton, 2 Yerg., 148; BkUr and Johnmm v.
PathkOLer, 2 Yerg., 414. So far ttom this be
ing the case in the instance before us, it is
manifest that sales of the reserved sections
were contemplated, as the lands ceded were
forthwith to be surveyed, sold, and inhabited
bv a white population, among whom the In-
dians could not remain.

We hold that Pet-chi-co was a tenant in
common with the United States, and could sell
his reserved interest; and that when the United
States selected the lands reserved to him, and
made partition (of which the patent is conclu-
sive evidence), liis srantees took the interest he
would have taken if living.

We order the judgment to be affirmed.

Gited-l Black, 866 ; 17 WaU., 247 ; 14 Otto, Sfii: 10
Biss., 294; 6 Dill., 400; SO lad.; 8 Kan^ 866; »
Kan^ 984 ; 23 Kan., 24.

64 U.S.

End of Volumb 64.

APPENDIX.

Copy of Affidtmt rtferred to in the doting paragra'pk of the Opinion of the Court in

U. 8. V, Gomez, ante, p, 556.

IN the United States District Court for the
Southern District of California ( Vineente P.
OomenBd, The United J^ates):

Pacificus Ord, late attorney of the United
States for the Southern District of California,
being duly sworn, says : That at the June Term,
1857, of the District Court of the United States
for the Southern District of California, held at
Monterey, Isaac Hartman represented that he
was a member of the law firm of Sloan & Hart-
man, authorized and retained as counsel for
Vineente P. Gtomez, in the above titled cause.
That he had, as counsel for the said claimant, ob-
tained an order from the district court of the
Northern District, removing the case to the
Southern District; and that he was ready and
willing to present the same to the court, as soon
as the same could be heard. Affiant further says,
that shortly thereafter, the court being then in
session, the said Hartnuin, acting as counsel for
said claimant, presented the said case to the
court by reading the petition for review, and the
other papers and transcript in the case to the
court, for the appellant. That after sovdoinff,
this affiant, acting for the United States, ad-
mitted, in open court, that in his opinion the
claim was a valid one, and that in accordance
with the ruling of the court in previous cases,
the case should be confirmed. That thereupon
the court ordered Uiat the decision of the Land
Commissioners should be re versed, and a decree
of confirmation entered therein for claimant.
Affiant further says, that at the next term of the
said district court, held in Los Angeles, in De-
cember, the said Hartman. as counsel in said
case, presented to affiant a draft of the decree of
confirmation of said claim. That upon reading
the same, affiant objected to the said draft, on
the nound that the same would cover all the
land embraced within the limits of the named
boundaries, to the extent of eleven leagues.
Whereupon the said Hartman made another
draft of a decree, restricting the quantity of
land to not more than four leagues; which said
draft, after being approved by affiant as United
States Attorney, was signed by the court. That
thereafter affiant draft^ an order of appeal to
the Supreme Court of the United States in said
case, on the part of the United States; and
on the last day of the term of said court. Col.
Kewen, acting for the United States, at the re-
quest of affiant, district attorney as aforesaid,
asked for and obtained, as affiant was afterwards
informed, the said order in said case. Affiant
further says, that at or about the time the said

See 28 How.

Hartman informed him that he had been re-
tained by the said claimant in said case, affiant
informea said Hartman that he had been the
attorn^ for said Gomez before the United States
Land Commissioners; and that, for his servicers
therein, the said Gomez had conveyed to him
the one undivided half of the tract of land
claimed therein. That he had endeavored for a
long time to get the Attomey-(3eneral to appoint
some attorney to represent the United States in
cases in which he was interested, but without
success. That this case had been unacted upon
for a long time; and that as the Conmiisssioners
had, upon the evidence before them, passed fa-
vorably upon the validity of the claim, and
though they rejected it, it was only on the
ground of want of occupation by the grantee ;
and as that ground had oeen overruled by the
Supreme Court, there could be no injury to the
United States, and no impropriety on his part,
as United States Attorney, in appearing and
consenting to its confirmation; in all of which
views of this affiant, the said Hartman then
concurred. Affiant further says, that he wrote
to the Attomey-Gteneral of the United States
shortly after assuming the duties of the office
of dis&ict attorney, aSoui December, 1854, stat-
ing that he had tieen employed as counsel, and
was interested in several claims then pending
on appeal in his district from the Land Uommis-
sioners, and requested that he would cause some
attorney to be specially named to represent the
United States in such cases. But the Attorney-
(General never made or named any person to act
in the)matter, as requested. That affiant, being
thus left to act in the matter as best he might,
did act with the most scrupulous good fiuth.
and to the best of his ability, for the United
States, in all such cases. Affiant further says,
that he has been informed and believes that the
parties who are now and have been endeavoring
to impede and defeat this claim, since the con-
firmation by the United States District Court,
are private persons in possession of a valuable
quicKsil ver mine, believed to be within the limits
of said grant,lately opened and worked by them,
of whidi one Daniel Gibb, of San Francisco, is
believed to be the principal person interested.
Affiant further says, that the substantial allega-
tions in certain depositions of said Isaac Hart-
man and E. W. F. Sloan, dated December, 1850,
in said case, are wholly untrue, except as herein
admitted.
And further affiant sayeth not.

P. Ord.

587

ARGUED AND DECIDED

IN THB

SUPREME COURT

OF THB

UNITED STATES,

DECEMBER TERM, 1860.

Vol. 65.

REFERENCE TABLE

OKaDl.'H LAM

DECIDED IN U. S. SI

DEOEMBKI: : a i '. .

VOL.. So..

A> U<\K ALWI Mntn ll>l'.>UI> '• '••

iOW.\Rr) .AND IN i M

n-k-W.»|..TrhDn1««.' Wl 4IHS

K V. Ftonjrth,

niMitl *. Ctlyiil J«ltKr>>^i

Ll'IIAIlKIICAI. UST (IP CASES liKI'OllTKI) IN Tins VOLUMK.

THE DECISIONS

OF THE

Supreme Court of the United States,

DECEMBER TERM, 1860.

KUSSELL STUROIS, Claimant of the Steam
Tug Hbctob, her Tackle, &c., impleaded
with the Ship WiBGOKSiN, her Tackle. &c.,

HERMAN BOYER, ALBERT WOODRUFF
AND JEREMIAH R. ROBINSON, owners
of the Lighter Republic, Libis.,

(See8.C., 24 How^ 110-126.)

CoiUsum — tvg, when UaJbiUfor damages done by
ship in touh-itessel and aumers, wJien liable.

Where a lighter was capsized by a ship In tow of
and lashed to a tug, the tug held liable for the dam-
ages.

Whenever a tug, under the charge of her own
master and crew, undertakes to transport another
vessel, which, for the time being, has neither her
master nor crew on board, f rora one point to anoth-
er, she must be held reponsible for the proper
navigation of botn vessels.

Third persons suffering damage,through the fault
of those in charge of the vessels must, under such
circumstances, loqk to the tug, her masters or
owners, for recompense.

Whenever a culpable fault is committed, where-
by a oollfaion ensues, that fault is imputed to the
owners, and the vessel is liable for the conse-
quences.

No such consequences follow, however, when the
person oommittmg the fault does not, in fact, or
oy implication of law, stand in the relation of
agent, to the owners.

By employing a tug to transport their vessel from
one point to another, the owners of the tow do not
necessarily constitute the master and crew of the
tug their agents, in performing the service.

The master of the tug, notwithstanding the con-
tract was neirotiated with him, continues to be the
agent of the owners of his own vessel, and they are
responsible for hla acts in her navigation.

where it dearlv appears that those in charge of
the steam tug haa the exclusive control, direction
and management of both vessels, and there is no
proof that the tug was not a suitable vessel to per-
form the service for which she was employed, or
that anyone belonging to the ship in tow partici-

I»at«d in the navigation, or was guilty of any neg-
igence, the tug is responsible for damages caused
by the ship in tow.

NoTB.--CoBte(on,fneam«reo/dama(7e</or. See note
to Smith V. Condry, 42 IT. 8. (i How.), 28 : and note
to The Amiable Nancy, 16 U. 8. (8 Wheat.). 646.

Rightii of steam and saUing vessel* tvith reference to
each other, and in passing and meeting. See note to
St. John V. Paine, 61 U. 8. (10 How.), 657.

Rxdes for avoiding eoUision. Steamer meeting
steamsr. See note to Williamson v. Barrett, 64 u.
8. (13 How.), 101.

t^ 24 How.

Argued Dec. 19, 1860, Decided Dee. 31, 1860^

APPEAL from the Circuit of the United
States for the Southern District of New
York.

The libel in this case was filed in the District
Court of the United States for the Southern
District of New York, by Boyer and others,
owners of the lighter Republic, against the ship
Wisconsin and the steam tug Hector, to re-
cover damages resulting from a collision.

The district court entered a decree in favor
of the libelants, against the ship and tug. The
circuit court, on appeals by the claimants of
the vessels, afflrmea the decree uf the district
court against the tug for damages and costs,
and dismissed the libel, with costs as against
the ship; whereupon the libelants took an ap-
peal to this court, from the decree of the circuit
court, so far as it relates to the ship. And the
claimant of the tug took an appeal from the
whole of said decree.

A further statement of the case appears in
the opinion of the court.

Mr. E. C«Benediet» for libehmto:

The ship is clearly responsible to the libel-
ants for this collision — they should not be de-
prived of her responsibility, and compelled to
resort to the tug alone.

The enterprise was the enterprise of the ship.
She had on board '* the mate, helmsman and a
full complement of mariners." There was no
wind and an adverse tide. She needed a pro-
pelling power, and procured a tug to assist her,
not to command her, or her officers, or men.
All was the proper business of the ship.

"Third parties receiving an iniury by collision
can rarely be required to lay the reponsibility
to any other agency than that which was the
proximate cause of it. If a vessel is run upon
by another under way, the latter must be an-
swerable for the wrong, unless she can prove
the occurrence to have been the result of mevi-
table accident, or without fault on her side, and
no reason is perceived why she is exonerated
by having permitted herself to be moved by a
steam vessel unskillfully or incautiously man-
aged, more than if the cause of the injury was
want of attention or prudence in the appliance
or use of her own means of navigation.

The Express, Olcott, 868.

The captain of the tug was on board the ship,
and if he was master of the ship pro hoc vice^

491

110-126

StTFBBMB CoUBT of TBX UnITBD 8TATK8.

Dbc. Tkbm.

he was appointed by the owners. For the pur-
pose of getting under way and moving and
mooring at the end, and steering her ana keep-
ing a look out, Captain Ostrom had charge, and
the mate had charire as master. The ship must
be steered by her own helm, except that, in
cases of difHculty, the helm of the tug must be
used to assist — it is too small to control. The
lookout must be on board the ship, because the
ship was ahe»d. The tug was unall, and did
not reach the ship's bows within one third of
the ship's length. The tug was behind, at one
side and below, so that she could not look out.

The tug was on board the ship. She was
firmly fastened to her, alongside, and was, for
the time being, a part of her, as much as the
machinery and side paddle-wheels of the tug
were on board, or a part of the tug. They
were all fastened on the outside of the hull, to
act as motive power.

The ship was the actual cause of the injury.
• The tug did not touch or Injure the lighter—
the ship alone struck her. The actual collision
was out of sight and out of reach of the tug.

The negligence of the ship and those on
board and in charee of her, caused the collision ;
they did not see t£e lighter, because they had
no lookout who was careful or efficient.

At the time of the accident the tug was still.
She was shut off at Catharine ferry; her func-
tion had ceased. The ship was going on her
own momentum. While the tug was propelling
her, she went four or five knots an hour; at
the time of the collision much less.

When a ship is sent through a public
crowded harbor, her owners are bound to pro-
vide her with all the necessary means, imple-
ments, and agencies of the most skillful, reliable
and trustworthy character, for the safety of
other vessels, and if any of them fail, and there-
by another is injured, the ship herself is re-
sponsible.

The question, which of those subordinate
agents was the guilty cause of the accident, is
wholly immaterial in this suit. They cannot in-
terplead here. They are not here, pl&in tiff and
de^ndant, with proper pleadings. Their rights,
as against each other, are not in issue, and they
can be settled only in another action, to which
the lighter cannot be a party. She is not interest-
ed in the question whether the tug, for her petty
compensation, is an insurer of the ship against
her own negligence.

The lighter had no proper course except to
proceed against the whole thing, which caused
the injury.

The S&presg, 1 Blatchf., 867.

Mr. I« T. Willianui, f or claimants of the
ship Wisconsin.

In no view of the case can the ship be made
responsible, or her owners liable, for the dam-
ages sustained by the lighter.

Spraul V. Hemingtoay, U Pick., 1; The Ex-
press, 1 Blatchf., 865.

She was lashed firmly to the side of the tug,
and under the exclusive command and direction
of the captain and officers of the tug.

To make the owners liable for such a coUis
ion, would be to establish an entirely new
principle of law.

It would not be an application of the princi-
ple respondects superior, for in no sense can the
captain and crew of the tug be said to have

«92

been the agents or servants of the owners of thr
ship.

They were in no sense under the control of.
or suDject to the orders of the owners of the
ship.

But on the other hand, they were the aervants
and agents— strictly the employes of the owners
of the tug, and owed obedfience. and were
amenable to no one else in the discharge of
their duties.

If the owners of the ship could bQ liable for
the misfeasance or malfeasance of the r^ptyn
or crew of the tug, it would follow that the
owners of the ship could have the right to ap-
point and remove the captain and crew of the
tug, and that they were appointed by, and held
their respective offices from the owners of the
ship.

Laugher v. P&inter, 6 Bam. & C, 553, 554;
MUUgan v. Wedge, 12 Adol. & E., 737; Xtceey
V. Ingram, 6 Mees & W., 802; MelnioA ▼.
8lade, 6Barn&C., 657;iVtksA472ftm v. Maun*eg,
16 East. 884; Lane v. CoUan, 1 Salk.. 17; 13
Mod.. 472; 15 East, 892; Cowp., 754; Rapmn
V. CabUt, 9 Mees & W., 710; 6 Moor. 47; 2
Dowl. & R., 88; QiMTtnan v. Burnett, 6 Mett.
& W., 509, 510: per Parke, B., 9 Mees & W..
718; 6 Esp. N. P., 6; 5 Bam, & C, 550, 5ft); 4
Mees & 9., 29: Bandieson v. Murray, 8 Adol
& E., 109; Stone v. Cartwright, 6T. R.,411;
8 Camp., 408; 5 Bam & C, 554. per LitUedale.
J\ 5 Mees. and W.. 414; 8 Adol. & E., 885:
Fletcher v. Braddiek, 2 Bos. & P. N. R, 182,
recognised 5 Bam. & C, 556; 7 Bing.. 190; 4
Mees. & S., 288; 8 Adol. & £., 842. 843:
Broom Legal Maxims, 886. 887, 888. 889, and
cases there cited; Story, Ag., sees, 458, a, 458.
b, 458 c, 8.

It is not easy to see wh v the owners of the
ship could be any more liable than the owners
of the cargo. The cargo, if heavy. eontribate»
to the force of the blow given by the colliding
vessel — which additional force may have oc
casioned the one vessel to be cut down and
sunk, rather than the other.

Take the case of a CATgq of timber, a part of
which projects over the sides of the Teasel, and
is the very thing which gives the blow that
gives the injury. How could the UabOity of
tne owner oi such timber be distinniished in
principle on the one hand, from theiiabiiity of
the owners of flour stowed in the hold ; or oc
the other, from the liability of the owner of a
ship lashed fast to the side of the colliding
vessel ?

Sprout V. HenMningtoay, 14 Pick., 1 ; yUieher
V. Braddiek, 5 Bos. & P., 182.

Mr. C« A« Seward, for claimant of the
steam tug Hector.

There Is no sufficient evidence to charge the
tug.

The lighter mi^ht have avoided Uie oolliaion.
She saw the ship long before the collision-
long enoueh to avoid her, and should have
done so. But if not, then the ship alone and
not the tu^, was responsible for the collision.

The ship was under the direction of her
owners at the time. Next under ihem was
their regular mate, who was on board and had
the general charge of moving the ship. To aiii
him. they sent on board Captain Ostrom to uke
charge of the ship, and ten or fifteen men. of
whom he had charge, to man the ship to do the

•5 U. 8.

ie«o.

Btubgis y. BoTSR.

110-1^5

labor, to nnmoor the ship and moke her fast to
the tuff, steer her. and then to pull and haul, to
make her fast at her berth at Dover Street. The
owners sent the tug to do the labor of pulling
and hauling in the river, there being a strong
flood tide and no wind. The captain of the
tug had charge of the ship, so far as transport-
ing her in the river. These were the three classes
of servants of the owner cooperating in moving
the ship — all of them in charge for certain pur-
poses. Of all of them only one, the tug, is free
from blame for negligence; against her there is
not an allegation of blame from any quarter.

Actually on board the Wisconsin were the
mate, Sinclair, Captains Ostrom, Phillips and
Brower, and ten or fifteen men. None of them
l)e]ong^ to the tug except Brower. He was
there, aft, that he might easily communicate
with the ship and tug. The mate gave no
proper attention ; he was forward getting lines
out. The most of the men were busy wiu him.
Captain Ostrom was on the quarter deck, giving
no proper attention to his duty, though giving
orders. The ship's man was at the wheel, but
be is not produced as a witnesss. No one saw
the lighter — coming as she was, with sails up.
in fun sight at high noon, till it was too late.

The engine of the tug was slowed and stopped
at the proper place. The wheel had been
ported at the proper place to get ship in. The
ship's hands had a small boat alongside of the
ship, and lines and a man already to send the
boat and lines ashore, and the ship was sagged
in to aid in that movement.

The Wisconsin could not be steered except
by her own helm; the helm of the tug could
only be used to assist, and it was used to the
utmost. Both helms were hard aport. The
lookout must be on board the ship, because the
ship was ahead. The tug was small, and was
back of the ship's bows one third of the ship's
length. The tus was on one side toward Uie
8tem and far below, so that she could not so well
lookout It was not her duty to keep the look-
out of the ship, which had on board, by the ad-
mission of the owners in their answer, "her
own competent crew and officers. "

The tug was not in fault; no negligence or
mismanagement is alleged a^nst her by any
party or witness in the pleadmgs or proolE, and
there should be no recovery against her for the
collision, and her little fee for hauling the ship,
does not make her an insurer for tne benefit
of third parties. If, by reason of her being
lashed to the ship, a decree must go against
both, then,as they have answered and stipulated
separately, the decree should be against the
ship ana her stipulators, first, and contin-
gently only against the tug and her stipulators.

If there can be a decree against one alone,
then the decree of the circuit court should be
wholly reversed — The Wisconsin condemned
and 'The Hector discharged.

Mr. JuiHoe Clifford delivered the opinion
of the court:

This is an appeal in admiralty from a decree
of the Circuit Court of the United States for
the Southern District of New York, in a cause
of collision, civil and maratime. It was a pro-
ceeding in rem against the ship Wisconsin and
the steam tug Hector, and was instituted in the
district court on the 26th day of October, 1855,

I3ee 24 How. U. S., BooiC 16.

by the owners of the lighter Republic. They
allege in the libel, that the lighter, on the 15th
day of October,^ 1855, started from pier six in
East River in the port of New York, laden with
flour, which was in their possession as common
carriers, to proceed up the river to the foot of
Dover Street, in the same port; that she had a
competent crew on board, but that the wind
being light, she was propelled exclusively by
oars, and was moving through the water only
at the rate of a mile an hour; that when she
arrived at a point nearly opposite the place of
her destination, she was headed towards the
pier or wharf for which she started, and while
m that position, that the ship Wisconsin, in tow
of the steamboat Hector, and lashed to the star-
board side of the tug, came down the river, and
was so negligently managed that the flying Jib-
boom of the ship struck the lighter and capsized
her, causing her cargo to roll Into the water, and
damaging the flour and the lighter to the amount
of $2,100. Negligence, want of care and skill
on the part of those in charge of the tow, are
alleged to have been the cause of the collision ;
and the libelants ^so allege that the ship and
steam tug were incompetently manned; that
they had no proper look out, and that those in
charge of them disregarded the warnings of the
lighter, and did not in due time stop and back
the engine of the tug, or shear the tow so as to
avoid the lighter, as they were bound to have
done. Process was issued against the ship and
the tug, and the claimants of the respective ves-
sels subsequently appeared, and flled separate
answers to the several allegations of the libel.
Both answers affirm that the collision was oc-
casioned through the fault of those in charge
of the lighter, but in most other respects they
are essentially variant. On the part of the
steam tug, it is alleged that she was employed
by the owners of the ship to tow her from the
foot of Water Street to the pier at the foot of
Dover Street; and that the tug was merely the
motive power to move the ship to the pier, and
that the tug and her crew were subjetst to, and
obeyed the orders of, the master and other offi-
cers in charge of the ship. Wherefore, the
claimant prays that, in case the libelants re-
cover any sum against the ship and tug, he may
have a decree against the ship and her owners
for such proportions of the same as he may be
made liable to pay. But the claimants of the
ship ^lege that she was in the charge and under
the control and management of the master and
crew of the steam tug. They admit in the an-
swer that her mate, helmsman, and a full com-
plement of mariners, were on board, but aver
that they were all under the direction and con-
trol of the master and officers of the steam tug
lo which she was lashed. Testimony was taken
on both sides, and after a full hearing in the
district court, a decree was entered in favor of»
^e libelants against the ship and the steam tug.
From that decree the claimants of each of those
veosels appealed to the circuit court, and the
cause was there again heard upon the same tes-
timony. After the hearing, the circuit court
affirmed the decree of the district court against
the tug, but dismissed the libel with costs as
against the ship Whereupon the claimants of
the tug appealed to this court, and the libelants
also appealed from so much of the decree as
pronounced the ship not liable.

110-120

BUPRBMX COUBT OF TBB UmXBD BVATSa.

Djux Tdoi,

At the ar^ment in this coart, it was con-
ceded that the flying jib-boom of the ship struck
the peak halyards of the lighter, and capsized
her, causing the cargo, which consisted oi flour
in barrels, to roll into the water, and no ques-
tion was made that the damages had not been
correctly estimated. According to the testi-
mony in the case, the lighter was bound up the
river, and she was propelled exclusively by
oars or sweeps. Her course was on the north-
em side of the stream, some two hundred yards
from the shore. She was moving about a mile
an hour, and the collision occurred at midday,
and in fair weather. As alleged in the plead-
ings, the ship was bound down the river, and
she was securely lashed, in the usual manner,
to the starboard side of the stpam tug. Neither
the ship nor tug had any proper lookout, and it
clearly appears that those in charge of them
did not see the lighter until it was too late to
adopt the necessary precautions to prevent a
collision. Their course down the river was
about the same distance from the northern shore
as that of the lighter, and both vessels werepro-
pelled by the steam-power of the tug. They
were bound to a point, alongside of another
ship, lying at the end of pior twenty seven, and
the lighter was bound to pier twentv eight, a
short distance up the river. None of these facts
are disputed, and the testimony clearly shows
that the lighter first changed her course, and
headed towards the pier to which she was bound.
When the lighter changed her course and
headed for the pier, the ship was so far distant
that if she haa kept her course, the lighter
would have passed to the pier in safety. Noth-
ing appearing in the river to obstruct the view,
those in charge of the lighter had a right to
assume that she was seen by those navigating
the approaching vessels, and that they woula
hold their course or keep out of the way. Pro-
pelled as they were by steam power, tiiose in
charge of them could readily govern their course
and control their movement. More difliculty,
however, would have attended any such effort
on the part of the lighter. It was then about
slack high water, the current still running up
a little out in the s^eam; but the tide had com-
menced to ebb close in shore, so that the flour,
after it rolled into the water, floated down the
river. Until the lighter turned towards the
pier, she had been aided in her course by the
current; but, when she chaneed her course, and
headed towards the pier, she was rather im-
peded than benefited by the tide. Those in
charge of her saw the ship and tug approach-
ing, and hailed those on board, apprising them
of the danger of a collision. There were three
men belonging to the lighter; two were forward
at the oars, and one was aft, and it does not
appear that they omitted anything in their
power to do to avoid the disaster. On the other
hand, it does appear that the descending vessds
were without any lookout, and that those in
charge of them aid not see the lighter in season
to adopt the necessary precautions to prevent
the collision. Beyondquestion, it was the mate
of the ship who first saw the lighter, and he
admits that she was then heading square into
the slip, and was using two oars. He had no
charge of the ship, and it does not appear that
he, in any manner, .interfered with her naviga-
tion from the time she left her mooring until

694

she reached her place of deatinatkm. When
the hail was given from the lighter, he was em-
ployed in getting the lines ready to send ashore.
as soon as the ship should arrive at the proper
place. All of the orders were given by the
master of the tug, which had bran employed
by the owners of the ship to transport tier from
her moorines to pier twenty- seven, for the pur-
pose of dis^arging what merchandise she had
on board, and toking in another cargo. They
had also employed a nead stevedore to discharge
her cargo, and reload her; and in point of fact,
all the men on board, except the mate, were
the hands in the employment of the principal
stevedore, not one of whom belonged to the
crew of the ship. Her master was not on board,
and, contrary to the allegation of the answer,
the testimony shows that she was without a
crew. One of the stevedores was at the wheel
of the ship, but both vessels were exclostvely
under the command and direction of the master
of the tug. Prior to the collision, and when the
pilot of the tug gave the signal to slow, the master
of the tue left his own vessel and went on to the
ship, and all the subsequent orders were given
by him, while standing on the quarter deck of
the latter vessel. "My attenUon," says the
mate of the ship, " was first called to the light-
er by a hail from one of her men." He was
the first person on the descending Tessels wlio
saw the lighter, and he at once gave notice to
the master of the tug. The^r were then so near,
that the mate says he anticipated a collision,
and, considering the headway of the i^p, he
was unable to see how it could be avoided.
True it is, the master of the tug testifies thsS
the ship had no headwat at the time of the col-
lision, but the weight or the testimony is great-
ly otherwise. No doubt is entertained tliat he
save the orders to stop and hack before the col-
lision occurred, but tne circumstances dearij
show that those orders were too late to have
the desired effect.

Looking at all the facts and circumstances in
the case, we think the libelants are clearly ea-
titled to a decree in their favor; and the only
remaining question of any importance is. irlietb-
er the ship and the steam tug are both liable for
the consequences of the collision ; or if not, which
of the two ought to be held responsible for the
daouige sustained by the libelants. Cases arise,
undoubtedly, when both the tow and ttie tug
are Jointly liable for the consequenoek of a col-
lision; as when those in charge of the respect-
ive vessels jointly participate in their oontrol
and management, and the master or crew of
both veBsels are either deficient in skill, omit
to take due care, or are guilty of neglimioe is
their navigation. Other cases may wd be im-
anned wb«n the tow alone would be reaponsi-
ble; as when the tug is employed by the mss-
ter or owners of the tow as the mere motive
power to propel their vessels from one point to
another, and both vessels are exclusively under
the control, direction and management of the
master and crew of the tow. Fault in that
state of the case cannot be imputed to the tu/c.
provided she was properly equipped and sea-
worthy for the buaiuess in which she was to-
gaged; and if she was the proper^ of third
persons, her owners cannot be hdd responsive
for the want of skill, negligence or mismanai^'
ment of the master and crew of the other v«»

I860.

BlUBGZB y. BOTBB.

110-125

8el. for the reaaon that they are not the agenta
of the owners of the tug, and her owners in the
case supposed do not sustain towards those in-
trusted with the navigation of the vessel the
relation of the principal, fiut whenever the tug,
under the charge of her own master and crew,
and in the usual and ordinary course of such an
employment, undertakes to transport another
vessel, which, for the time being, has neither
her master nor crew on board, from one point
to another, over waters where such acoessoir
motive power is necessarj^ or usually employed,
she must be held responsible for the proper nav-
igation of both vessels; and third persons sufFer-
LDg damage through the fault of tnose in charge
of the vessels must, under such circumstances,
look to the tux. her master or owners, for the
recompense which thev are entitled to claim for
any injuries that vessels or cargo may receive
by such means. Assuming that the tug is a
suitable vessel, properly manned and equipped
for the undertaking, so that no degree of neg-
ligence can attach to the owners of the tow, on
the ground that the motive power employed by
them was in an unsea worthy condition, and the
tow, under the circumstances supposed, is no
more responsible for the consequences of a col-
lision than so much freight; and it is not per-
ceived that it can make any difference in Uiat
behalf, that a part, or even the whole of the
officers and crew of the tow are on board, pro-
vided it olearly appears that the tug was a sea-
worthy vessel, properly manned and equipped
for the enterprise, and from the nature of the
undertaking, and the usual course of conduct-
ing it, the master and crew of the tow were not
expected to participate in the navigation of the
vessel, and were not guilty of any negligence
or omission of duty by refraining from such
participation. Vessels engaged in commerce
are held liable for damage occasioned by col-
lision, on account of the complicity, direct or
indirect, of their owners, or the negligence,
want of care, or skill, on the part of those em
ployed in their navigation. Owners appoint
the master and employ the crew, and conse-
quently are held responsible for their conduct
in the management of the vessel. Whenever,
therefore, a culpable fault is committed, where-
by a coUisloQ ensues, that fault is imputed to
the owners, and the vessel is just as much liable
for the consequences as if it had been commit-
ted by the owner himself. No such conse-
quences follow, however, when the person com-
mitting the fault does not, in fact, or by impli-
cation of law, stand in the relation of agent to
the owners. Unless the owner and the person
or persons in charge of the vessel in some way
sustain towards each other the relation of prin-
cipal and agent, the injured party cannot have
his remedy against the colUdinj; vessel, fiy
empIo)ring a tug to transport their vessel from
one point to another, the owners of the tow do
not necessarily constitute the master and crew
of the tug their agents in performing the serv-
ice. They neither appoint the master of the
tug, or ship the crew; nor can they displace
either the one or the other. Their contract for
the service, even though it was negotiated with
the master, is, in legal contemplation, made
with the owners of the vessel, and the master
of the tug, notwithstanding the contract was
negotiated with him, continues to be the agent

See 24 How.

of the ownen of his own vessel, and they are
responsible for his acts in her navigation.
8proul V. Hemmingtoay, 14 Pick., 1; 1 Pars.
Mar. L., 208; TAe Brig James Gray v. The John
Frager, 21 How., 184.

Very nice questions may, and often do arise,
says Judgs Story, as to the person who, in the
sense of the rule, is to be deemed the princi-
pal or employer in particular cases. Story,
Ag., sec. 448 a, p. 657, Where the owner
of a carriage hired of a stable-keeper a pair of
horses for a day, furnishing his own carriage, and
the stable-keeper provided the driver, through
whose negligent driving an injury was done to
the horses of a third person, the ludges of the
King's Bench were equally divioed upon the

auestion, whether the owner of the carriage or
le owner of the horses was liable for the in-
Jury. LaugJitT v. P&mter, 5 Barn. &, C, 547.
Ixxi the better opinion maintained by the moro
recent authorities is, that the driver should be
regarded as the servant of the stable-keeper, and
inasmuch as he could not at the same time be
properly deemed the servant of both parties that
the stable-keeper and not the temporary hirer,
was responsible for his negligence. Upon the like
ground, says the same commentator, the hirer of
a wherry, to go from one place to another, would
not be responsible for the waterman ; nor the
owner of a ship, chartered for a voyage on the
ocean, for the misconduct of the crew employed
by the charterer, provided the terms of the char-
ter-party were such as constituted the charterer
the owner for the voyage. Quarman v. Burnett,
6 Mees. & W., 499; Bandlesan v. Murray, 8
Ad. & £1., 109; MilUffan v. Wedge, 12 Ad. &
EI., 737; The Express, 1 Blatchf. C. C. 865.
Whether the party charged ousht to be help
liable, is made to depend, in alT cases of this
description, upon his relation to the wrong-doer.
If the wrongful act was done by himself, or
was occasioned by his negligence, of course he
is liable; and he is equally so, if it was done by
one towards whom he bore the relation of prin-
cipal; but liability ceases where the relation
itself entirely ceases to exist, unless the wrong-
ful act was performed or occasioned by the party
charged. It was upon this principle that the
ship was held not liable in the case of James
Orayv, The John Frazer, 21 How., 194. In
that case, this court said, the mere fact that one
vessel strikes and damaees another does not, of
itself, make her liable for th^ injury, but the
collision must, in some degree, be occasioned
by her fault. A vessel properly secured may,
by the violence of a storm, be driven from her
moorings and forced against another vessel, in
spite of her efforts to avoid it, and yet she cer-
tainly would not be liable for damages which
it was not in her power to prevent. So, also,
ships at sea, from storms or darkness of the
weather, may come in colMon v^ith one an-
other without fault on either side, and ,in that
case must each bear its own loss, although one
is much more damaged than the other. Stain-
back V. Bae, 14 How., 532. Applying these
principles to Uie present case, it is obvious
what the result must be. Without repeating
the testimony, it will be sufficient to say, that
it clearly appears in this case that those in charge
of the steam tug had the exclusive control, di-
rection and management of both vessels, and
there is not a word of proof in the record, either

695

159-164

SXTFBmCB COUBT Of TBM UhXTBD StATBB.

DbC. TSBlf,

that the tug was not a suitable yeaael to perform
the service for which she was employed, or
that any one belon^ng to the ship either par-
ticipated in the navigation, orwas euiltyof any
degree of negligence whatever in tne premises.

Counsel on both sides stated, at the argument,
that they were prepared to discuss a question
of jurisdiction supposed to be involved in the
record; but upon its being* suggested by the
court that the question was not raised either by
the evidence, or in the pleadings, the point was
abandoned.

In view of the wlioU ease, toe think the deeidon
of the dreuit court wcls correct , and the decree it
accordingly affirmed, with eoete,

Aff*g-4 Blatchf . 199.

Clted-74 U. 8. (7 Wall.) 643 ; 79 U. B. 02 Wall.), 44 ;
81 U. 8. (14 Wall.). 212 ; 90 U. 8. (23 Wall.), 11 ; 92 C.
8., 489; 98 U. 8., 319 : 97 U. 8., 818 ; 2 Sawy., 50S, 603 ; 1
BeQ., 486 ; 4 Ben., 86 ; 2 Ben., 801; Brown, 469 : 5 Ben.,
881 ; 5 Bis., 807 ; 2 Low, 285; 7 Ben., 198: 3 CUff., 468;
8 Ben., 285 ; 1 Fllppin, 294 ; 69 N. 7., 479.

JOHN PITCH. Appt,

EDWARD CREIGHTON.

(Sec 8. C, 24 How.. 169-164.)

Juriedietion of Circuit Oourte— equity iuriadic-
turn of U, 8, Oourts-^tate laws, as rules of de-
cision— unnecessary party — multifariousness.

The cirouf t oourt has jurisdiction of bill to collect
assessments on city property levied under a state
law.

The equity Jurisdiction oithe courts of the Unit-
ed States depends upon the principles of general
equity, and cannot be affected by any local remedy,
unless that remedy has been adopted by the courts
of the United States.

The 84th section of the Judiciary Act of 1789, de-
daring that the laws of the several States, except
where the Constitution, treaties, or statutes of the
United States shall require or provide, shall be
regarded as rules of decision in trials at common
law in the courts of the United States in cases
where they apply, constitues a rule of property on
which the courts are bound to act.

There was no necessity to make a party In this
case, one who made the contract^ointl)%but before
the work was commenced relinquished his right.

Bill to collect assessments on several lots is not
multifarious ; where the awessments were asseesed
on the lots by the foot front, and all against the
same defendant.

Submitted Dec, 17, 1860. Decided Dec. 31, 1860.

APPEAL from the Circuit Court of the United
States for the Norlhem District of Ohio.

The bill in this case was filed in the court
below, by the appellee, to recover certain as-
sessments against lots owned by Fitch.

The defendant demurred to the bill. The
court overruled the demurrer, and entered a
decree in favor of the complainant ; whereapon
the defendant took an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Mr. D. F* Cooke* for appellant:

On the part of the appellant it is claimed
that upon the facts appearing in the bill, the
circuit court had no Jurisdiction over the sub-
ject-matter of the action, and this is the ques-
tion presented by the demurrer.

1. The right of the complainant to proceed
in his own name to enforce the collection of
the assessments, is derived entirely from the
remedial provisions of the statute. Bat the
equity lurisdisction of the courts of the United
States depends upon the principles of general
equitv jurisprudence. It cannot be affected by
any focal statute or any local remedy, unles
that remedy has been adopted by the courts of
the United States.

1 Curt. Com., 25; Robinson v. CampbeQ, S
Wheat.. 212; The Orleans v. Phoebus, 11 Pet..
184.

The inquiiT then is, whether the complainant
by his bill shows himself possessed of a riirht
which can be enforced in his name against this
defendant in a court of equity, by any of the
known usages and principles which govern
that court.

We admit that when the State Leglalature
creates a new right, and at the same time pre>
scribes the remedy to enforce it. if the remedy
prescribed is substantially consistent with the
ordinary modes of proceeding on the cbanceiy
side of the federal courts, relief may be had in
those courts.

Clark V. 8milh, 13 Pet., 203.

We also admit that if the State Legislature
creates a right which cannot be enforced at
law, and which properly belongs to a chancerv
jurisdiction, relief will be granted by the fed-
eral courts.

Lorman v. Clarke, 2 McLean, 573.

It will be conceded that the statute does not
give to the complainant, directly, any right of
action, either at law or in equity, agaiuBt the
defendant. It simply authorizes the city to
order and contract for this class of improve
ments, to assess Uie expense upon the property

NOTB.— 27ie common law liabWly to repair high'
warn. See note to City of Providence v. Clapp, fiS
U. S. Book 15, p. 72.

Jurittdiciion of U. S. oireuU eourtn dependent
on partleti and residence. See note to Emory y.
Greenouurh, 8 U. S. (8 Dall.), 999.

LUihUitu to repair highway« in United States :
safety ana convenience of, a mixed question, of law
and fact.

The obligration to repair the roads never rested
upon towns in the U. S. at common law. It ariaesL
in general, from statute. The corporate powers of
townis are defined by statute, and their obligations
can only be co-eztenslve with their powers. Morey
V. Newfane. 8 Barb.. 645 ; Loker v. Brooklfhe, 18
Pick., 348 ; Com. v. Sprlnfffield, 7 Mass., 18 ; Chid-
sey V. Canton. 17 Conn.. 475 ; People v. Corns, of
Highways, 7 Wend., 474; Oliver v. Worcester,
102 Mass., 490; but see Com. v. Hopkinsville, 7 B.
Mon., 38 ; City of Tallahasse v. Fortune, 8 Fla., 19 ;
People v. AltMiny, 11 Wend., 530 ; State v. Murf rees-
boro, 11 Humph., 217.

In New Hampshire, however, by custom, towns
have been held liable to keep in repair the hiffh-

6)^6

ways within their limits. Wheeler v. Troy, 2D N.
H., 77; Giiman v. Laoonia,55 N. H., 130; dO Am.
Rep., 175.

Generally, towns or town oflloers are by state
statute bound to repair highways. Stanton r.
Springfield, 12 Allen. 686 ; Providence v. Clapp. S^
U. 8. (17 How.), 161 ; Peck v. Ellsworth. 88 Me.. a» :
Kitredge v. Milwaukee, 28 Wis., 40; Draper v. Town
of Ironton, 42 Wis , 606.

Towns, counties, and other gtia«ioorporattons are
not liable to private actions for the neglect of their
offlcers in respect to highways, unless such liability
be expressly declared by statute and the right of
action given. This is the case even where they have
power to levy taxes for repair of them. Bartleti v.
Crozter, 17 Johns., 480; Eastman v. Meredith, 36 X.
H., 284;Chidsey v. Canton, 17 Conn., 475; Mower r.
Leicester. 0 Mass., 247 ; Browning v. Springfield, 17
111.. 143; Soper v. Henry County, t& Iowa. 284: Kos-
sell V. County of Devon, 2 Term 671 ; Bigelow r.
Kandolpb, 14 Gray, 541 ; Bray v. Walliogford. 39
Conn., 416 ; Freeholders v. Strader, 3 Harr., IflS; Van
Eppes V. Comr's, 25 Ala., 460; Treadwell v. CbmrX
U Ohio St., 100 ; Pray v. Jersey City, 9 N. J. Law,

1860.

Fitch v. Creightoh.

159-^164

abutting thereon, and prescribes the mode and
manner of the collection of such assessment.

There is no promise, express or implied, by
the defendant, to pay to the complainant or the
city the assessment charged uppn his property.
His obligation is imposed by the statute, and
does not exist at common law. It is a tax — an
involuntary contribution— the payment of which
is to be enforced by the public authorities.
But no suit can be maintained at law or in
chancery, to enforce the collection of a tax, un-
less authorized by statute. No such right of
action exists at common law, or accoroing to
the principles of general equity jurisprudence.

Andover dk Med. Turnpike Vo, v. Oauld, 6
Mass., 44.

Taxes only exists by virtue of the statute au-
thorizing them, and only such remedies can be
resorted to for their collection as the statute
provides.

Bangor Bouse Prop. v. HinckUy, 12 Me., 888.

From these considerations it is claimed —

First. That the complainant does not show
himself possessed of any right which he can
enforce directly against this defendant or his
property; and,

Second. That the liability of the defendant
is not such an one as can be enforced against
him in a court of equity, without the aid of the
statute, which cannot confer jurisdiction upon
the courts of the United States.

2. The bill is bad from multifariousness.
There is a misjoinder of causes in the suit.

A bill is multifarious if it unites several mat-
ters, perfectly distinct and unconnected against,
one defendant. *

Dan. Ch. Pr., 883; Story, Eq. PI., sec. 27;
Bugbee v. Sargent, 28 Me., 271; Adams, £q.,
570, noU; 1 Dan. Ch. Pr.. 868; AUy Qen, v.
Goldsmith's Co., 6 Sim., 676.

Jurisdiction cannot be conferred upon the
courts of the United States by a joinder, in the
same suit, of several causes of action, each dis-
tinct in itself.

Each cause of action is to be considered by
itself, and if the amount of any one is not suf-
ficient to confer jurisdiction, the whole must be
dismissed.

Oliver v. Alexander, 6 Pet., 147.

Mr. N. H. Swayne* for appellee:

The points made by the counsel for the appel-
lant may be reduced to two, viz. :

1. The circuit court had no jurisdiction.

2. The bill was multifarious.

I propose to state briefly the points relied
upon to give the circuit court jurisdiction ; and
incidentally to answer the points made by the
appellant.

it seems to be conceded that when the local
statutes of a State ^rive rights to an individual,
the courts of the United States will enforce
those rights, in cases where they have jurisdic-
tion of Uie parties.

It is not pretended that the States can direct
the remedy, by which rights are to be enforced,
which the federal courts are bound to pursue.

But it is claimed, that where the statute of a
State creates a right which may be enforced by
remedies already existing and resorted to in the
latter courts, these courts will enforce the rights
by their own known remedies and usages, in
cases where they have jurisdiction, almough
the local statute may direct a special mode of
proceeding.

The General 8mUh, 4 Wheat., 488.

By the statute and the contract with the
city, the complainant acquired, by operation of
law, rights which courts of equity, by their
lonff established rules and usages, will enforce.

The claims which by this action are sought
to be enforced as liens on the lots of the appel-
lant, are not taxes. The Supreme Court of Ohio
has often so decided.

EiU V. Higdon, 6 Ohio St, 248; Bhmst v.
Kunkle, 6 Ohio St.. 520; Reeties v. T?te Treas.
of Wood Co., 8 Ohio St., 888; and The Northern
2nd. R. R. Co. v. ConneUy, 10 Ohio St.. 159.
decided at the present term and not yet reported.

This lien upon real estate is such an one as
courts of equity, by their long established and
well known usages, will enforce; and the com-
plainant being a citizen of Iowa and the defend-
ant a citizen of the State ^ Ohio, the circuit
court, having jurisdiction of the parties, has
ample equity powers to take cognizance of the
case. It is, in fact, an equitable and not a legal
lien — it is a charge on a thing without the ri^t
of possession. Such liens are only cognizable in
courts of equity.

Story, Eq. Jur., sees. 1215, 1217; Adams,
EcL. 127.

This court has sustained the jurisdiction of
the circuit courts, to enforce the right of bene-
ficiaries even in the name of the trustee, as a

994 : Granger v. Pulaski County, 86 Ark., 87 ; Wal-
tham V. Kemper, 6fi 111., 84f : 8 Am. Rep., 652 ; Rus-
ell V. Town of Steuben, 57 111., 86.

Chartered Cities or ordinary municipal corpora-
tions owe a duty to the public to keep their streets
in a safe condition, even in the absence of an express
statute, and they are liable for special Injuries re-
sultinif from a neglect of this duty. Brownlnir v.
Springfleid, 17 111., 143 ; Sterling v. Thomas, 00 111.,
264; Chica«ro v. Robblns, 2 Bfaok., 418; Clark v.
Lockport, 49 Barb., 480; Brie City v. Schwingle, 22
Penn. St.. 884 ; Blake v. St. Louis, 40 Mo., 669 ; Meares
V. Wlllmln|rton, 9 Ired., 78. In general, they are
only bound to exercise ordinary care, and negll-

Sence must be affirmatively shown. McOinty v.
[ayor, &o., of N. T., 5 Duer, 674 ; Parker v. Oohoes,
10 Hun, 531.

lu grants of franchises, as turnpikes, plank roads*
toll bridges, fto., to private Individuals, the duty of
repairing the road is assumed by them as a con-
dition ox the grant. Their obllmtion Is then to
f urnifth a safe road to travelers. Davis v. Lamoille
Go. Plank Road Co., 27 Vt., 602: Stanton v. Pro.,
&c., Haverhill Bridge, 47 Vt., 172 ; Waterford, fto.,
T. Co. V. People, 9 £brb., 161 ; Townsend v. Susq. T.
Co., 6 Johns., 90 ; Pamaby v. Lancaster Can. Co., 11
Ad. ft BL, 223.

See 84 How.

Whether the highway was safe and convenient,
which are the essentials of a well maintained high-
way, is a mixed question of law and fact to be de-
termined by the Jury upon the circumstances of
each case under instructions from the court.
Green v. Danby, 12 Vt, 838; Kelsey v. Glover, 16
Vt., 708; Rice v. Montpelier, 19 Vt., 470 ; Fltz v.
Boston, 4 Cush., 865 : Merrill v. Hampden, 26 Me.,
284; City of Providence v. Clapp, 68 U. S. (17 How.),
161 ; Sessions v. Newport, 23 vt., 9.

Safety and convenience depend on location of
road, wnether It be In country or city, ftc. Hull v.
Richmond, 2 Wood, ft M., 897 : Fitz v. Boston, 4
Cush.. 866; Church v. Cherry field, 83 Me., 460.

The whole width of highway need not be safely
pcusable for wheels. The situation of the road de-
termines this. Kelsey v. Glover, 15 Vt., 706 : Green
V. Danby, 12 Vt., 888 ; Cobb v. Standlsh, 14 Me.^98 ;
Johnson v. Whitefleld, 18 Me., 286; Bigelow v. Wes-
ton, 8 Pick., 267 ; Hull v. Richmond, 1 Wood ft M.,
887; Coggawell v. Lexington, 4 Cush., 807; Snow v.
Adams, iCush., 443.

At common law, proprietors of turnpikes, ftc,
are bound to exercise only ordinary care in the
maintenance of their highways. Grlgsby v. Chap-

KU, 5 Rich. Law., 448; Bridge Co. v. Williams, 9
ma, 406.

169-164

SUFBSlfB Ck>UBT OF TRB UkTTBD StATBS.

Dec. Tool

formal party, although that trustee were a citi-
zen of the same state with the defendant.

Huffy, Hutchinson, 14 How.. 687; McNuU
y. Bland, 2 How., 10.

The bill is not multifarious. When the mat-
ters are homogeneous in their character, the in-
troduction of ^em in the same bill will not be
multifarious. ,

1 Dan. Ch. Pr. 896; Story, £q. PI., sees.
631-688, and cases there cited.

Mr, Justtee HeLean delivered the opinion
of the court:

This is an appeal from the Circuit Court of
the United States for the Northern District of
Ohio. The bill was filed by Edward Creigh-
ton, a citiasen of the State of Iowa, against John
Fitch, a citizen of the State of Ohio.

By the Act of March 11th, 1868, Swan's
Statutes Ohio, it is provided, "that the city
council shall hiave power to lay off, open, widen,
straighten, extend, and establish, to improve,
keep in order, and repair, and to liirht streets,
alleys, public grounds, wharves, landing places,
and market spaces; to open and construct, and
put in order and repair, sewers and drains; to
enter upon or take, for such of the above pur-
poses as may reouire it, land and material ; and
to assess and collect and charge on the owners
of any lots or lands, through or bv which a
street, alley, or public highway shall pass, for
the purpooB of aefraying the expenses of con-
structing, improving, and repainng said street,
alley, or pubfic highway, to be in proportion
either to the foot front of the lot or land abut-
ing on such street, alley, or highway, or the
value of said lot or land as assessed for taxation
under the general law of the State, as such
municipal corporation may in each case deter-
mine."

Each municiptf corporation may, either by
a general or special law or ordinance, prescribe
the mode in which the charge on the respective
owners of lots or lands shall be assessed and
charged to the owner, which shall be enforced
by a proceeding at law or in equity, either in
the name of the corporation or of any person to
whom it shall be directed to be paid, but the
judgment or decree was required to be entered
severallv; and a charge was required to be en-
forced for the value of the work or material on
such lot or land; and where payment shall have
been neglected or refused, when required, the
corporation shall be entitled to recover the
amount assessed, and five per cent, from the
time of the assessment. Swan's Stat., 968.

On the 7th of April, 1866. the Ci^ of To-
ledo entered into a contract with Creighton
and one Edward Connellv, who bound them-
selves to do certain work on the. streets, for
the stuns named in the contract; and that so
soon as the work was completed, the street
commissioner should give them a certificate to
the effect, and on the presentation of the same
to the council, it would assess the cost and ex-
penses of the improvement on the lots or lands
made liable bv law to pay the same, and
make out and aeliver to the contractors a certi-
fied copy of said assessments and authorize them
or assigns to collect the several amounts due and
payable for the work and improvement.

Creighton purchased from Connelly his in-
terest in the contract, and went on and per-

598

formed the work under it, to the aooeptanoe of
the city. On the 14th July, 1856, the oounctl
made an assessment on the lots abutting on the
improvement in Monroe Street, to pay the ex-
penses of that ^ork.and directed that the own-
ers of the lots make payment of theaaaeasmentB
to Creighton. Among the rest, lot 640, belons-
ing to John Fitch, was assessed for ihia work
$84.66.

On the 20th May, 1856, the council made an
assessment upon the lots abutting on said im-
provement in Michigan Street, to paj for the
same, and also directed the owners of these
lots to make payments of such assessments to
Creighton. Among the lots so assessed were
the following, owned by defendant, numbered
647, 688, 689, 644. 1,461; the assessmento of
the respective lots amounted to the sum of $1.-
791.76; and subsequently a further aaseawnent
was made on the contract of three lots, num-
bered 686, 761 and 855. which amounted to the
sum of $266.47. The above sums were ordered
to be pdd to the complainant, with five per
centum allowed by law.

To this bill the defendant demurred, which,
on argument, was overruled. And the oooit
ordered the above sums to be paid in ten days,
or in default thereof that the lots be sold, ic

From this decree an appeal was taken. On
the part of the appellant it is claimed, that
upon the facts of the case, the circuit court had
no Jurisdiction ; that the equity Jurisdiction of
the courts of the United States depends upon
the principles of general equity, and cannot,
therefore, be affected by anv local remedy, un-
less that remedy has been adopted by the cxHirts
of the United States.

By the 84th section of the Judiciary Act of
1789, it is declared. '*that the laws of the sever-
al States, except where the Constitution. treaties
or statutes of the United States shall reouire or

{)rovide, shall be regarded as rules of dedsioB
n trials at common law in the courts of the
United States in cases where they apply." This
section does not relate to the practice of our
courts, but it constitutes a rule of property on
whidi the courts are bound to act.

The courts of the United States have Jurisdic-
tion at common law and in chancery, and
wherever such jurisdiction may be appropri-
ately exercised, there being no objection to the
citizenship of the parties, the courts of the
United States have jurisdiction. This is not
derived from the power of the State, but from
the laws of the United States.

In Clark y. Smith, 18 Pet, 203, the court
say "the State Le^slatures certainly have no
authority to prescnbe the forms and modes of
prooeedmg in the courts in the United StatsB;
but having created a risht, and at the same
time prescribed the remeay to enforce it, if the
remeav prescribed is substaintially consisteot
with the ordinary modes of proceeding on the
chancery side of the federal courts, no reason
exists why it should not be pursued in the same
form as it is in the state courts."

In the case above cited, the Legislature of
Eentuckv authorized a person who was in pos-
session 01 land claimed by him, and some one
else had a claim on the same land; the posses
sor was authorized to file a bill against the
claimant to litigate his title and remove the
i cloud from it.

1860.

BuLKLBT V. Naumksao Stbam Ootton Oo.

386-894

The statute authorizes a suit at law or ia equ-
ity, but from the nature of the case it would
seem that chancery was the appropriate mode.

There was no necessity to make Connelly a
party in this case. He made the contract lointly
with, Creighton. But before the work was
commenced Connelly relinquished his right to
Creighton, who performed the whole work,
and to whom the city council promised pay-
ment. The assessments, too» were made to
Creighton, and he was considered the only con-
tractor with the city. No right was held un-
der Connelly. Bv the statute the city makes
an assessment which is to be paid by the own-
er personally, and it is also made a lien on the
property charged. The charge may be col-
lected and the lien enforced by a proceeding at
law or in equity, either in the name of the city
or its appointee. The complainant is the ap-
pointee for this purpose, and his right is too
clear to admit of controYersy.

This bill is not multifarious; the assessments
were assessed on the lots bv the foot front, and
all against the same defendant.

Lord Cottenham* in Gampbell v. Mcukayy 7
Sim., 664. and in Myl. & C, 608, says, to lay
down any rule, applicable universally, or to
say what constitutes multifariousness, as an ab-
stract proposition, is, upon the authorities,
utterly impossible. Every case must be gov-
erned by its circumstances; and as these are as
diversified as the names of the parties, the court
must exercise a sound discretion on Uie sub-
ject. Whilst parties should not be subjected
to expense and inconvenience in litigating mat-
ters in which thev have no interest, multiplici-
ty of suils should be avoided bv uniting in one
bill all who have an interest in the principal
matter in controversy, though the interests may
have arisen under distinct contracts.

We iMnk ihs statute of the State, and the
fnunidpat corporation of Toledo, authorise the
assenmefU of the sums on the loU in ^estion,
and that the judgment of the circuit court must
be affirmed.

Cited— 2 Bond., 16S ; 108 IT. 8., 815 ; 6 Saw., 978.;

HENRY T. BULKLEY. Claimant of the Bark

Edwin, Appt,,

THE NAUMKEAG STEAM COTTON

COMPANY.

(See 8. 0., 24 How.. 886-894.)

Carrier — deUwry to lighterman, tohen ie delivery
to matter of veeaeir^veaaelUable for lou of goods
on lighter.

Where the master of a vessel a^rreed to carry 707
bales of ootton from Mobile to Boston, for certain
freight mentioned in the bills of ladinir ; held, that
tbe vessel was bound for the safe shipment of the
whole of the 707 bales* from the time of their de-
livery by the shipper at the City of Mobile, and ao-
oeptanoe by the master.

Further held« that the delivery of a hundred
bales to a liarhterman to deliver on board the vessel
was a deliverv to the master, and the transporta-
tion by the lighter to the vessel was theoommence-
inent of the voyage, the same as If the hundred
bales had been placed on board of the vessel at the
city, instead of the lighter.

Both parties understood that the ootton was to
be delivered to the oarrler for shipment at the

Pee 24 How.

wharf In the city, and to be transported thence to
the port of diftcharge, and after the delivery and
aooeptanoe at the place of shipment, the shipper
had no longer any control over the property.

The shlpis liable for the loss on the lighter of the
hundred bales, the same as any other portion of
the cargo.

No well founded distinction can be made, as to
the liability of the owner and vessel, between the
case of the delivery of the goods Into the hands of
the master at the wharf, for transportation on
board of a particular ship, in pursuance of the con-
tract of affreightment, and the case of the lading
of the goods upon the deck of the vessel.

Submitted Dec. 17, 1860. Decided Dee. SI, 1860.

APPEAL from the Circuit Court of the United
States for the District of Massachusetts.

The libel io this case was filed in the District
Court of the United States for the District of
Massachusetts, by the appellee, to recover dam-
ages for the non delivei^ of a portion of a ship-
ment of cotton from Mobile to Boston.

The district court entered a decree in favor
of the libelants, for $7,000, with costs. The
circuit court, en appeal, having affirmed this de-
cree, the cintmant took an appeal to this court.

A further statement of tbe case appears in
the opinion of the court.

Messrs, F. C. Loring^ and Charles O.
Lorinipt for appellant:

1. The libelant cannot hold either the vessel
or the owners under the bills of lading, because
the jB:oods in question were not on board; and
having insisted upon the master's signing such
bills, they are prevented thereby from resort-
ing to the original contract of shipment.

It is well settled that neither the vessel nor
its owners arc made liable for the master's sig-
nature to a bill of lading for goods which are
never placed on board; that his authority to
bind them does not conmience till the goods
are actually on boMtl.

It is immaterial whether the master is guilty
of fraud or mistaliLe, or is imposed upon.

The authorities to this point are conclusive.

Marine Ordinances, Liv. 8, tit. 2; Walter v.
Brewer, 11 Mass., 99; Bowley v. Bigelow, 12
Pick., 807; Grant v. Norway, 10 Com. B.. 685;
2 Eng. L. & Eq., 387; Hubbersty v. Ward,
8 Ezch.. 880; 18 Eng. L. & Eq., 651; Cfdeman
V. Biehes, 16 Com. B.. 104; 29 Eng. L. & Eq.,
828; The Freeman, 59 U. S. (18 How.). 191;
The Yankee Blade, 80 U. S. (19 How.), 89.

2. The owners of the vessel were not com-
mon carriers.

Judge Story remarks, that it is not everyone
who undertakes to carry the goods for hire that
is to be deemed a common carrier; that a
private person may contract for the carriage of
goods, and incur no responsibility beyond that
of an ordinary bailee for hire, that is for the
exercise of ordinary diligence; that to consti-
tute one a common carrier, he must exer-
cise it as a public employment; must undertake
to carry for persons generally; must hold him-
self out as ready to engage in the transporta-
tion of goods for hire as a business, not as a
casual occupation pro hoc vice, and must be
ready to carry for all who offer goods, so that
he is liable to an action if he refuse to carry
goods on being offered a reasonable compensa-
tion.

Story. Bail., sees. 457, 495, 508; 1 Pars.
Maritime I^aw, ch. 7, sec. 5; Dale v. Hall, 1
Wils., 281.

599

^36-894

c^-'

^ r.

SuFBBicB CotmT dV mft Ust'TKb BtATBa.

DbC. Tsw,

8. The vessel is not liable in rem.

In the case of 2^ Druul, 1 W. Rob., 899,
Doctor Lushington says: " No suit could ever
be maintained against the ship where the own-
ers were not themselves personally liable, or
where the personal liability had not been given
up as in bottomry bonds;*' and the rule as stated
by him to this extent is expressly recognized bv
this court in the case of l%e Freeman, 59 U. 8.
(18 How.), 189.

If the court should be satisfied that a per-
sonal liability does exist on the part of the
owners, it does not follow, as of course, that
the vessel is liable.

There is not even a presumption that the
vessel is liable because the owners are. The
liabilities depend upon different grounds, and
are not at all reciprocal. In this court, of late
years, the tendenc^r has been very strong to
limit maritime privileges, and to deny tneir
existence in cases where theyhad been before
recognized. In the case of The Yankee Blade,
00 IL S. (19 How.), 8d, they are said to be etrieti
juris ana are not encouraged. In Thomas v.
Orixfm, 60 U. 8. (19 How.), 22, and Pratt v.
Beed, 60 U. 8. (19 How.), 359. the liens of
material-men are confined to cases of necessity.
A recent rule of the court prohibits the enforce-
ment of domestic liens by the district court.
The privile^ of the ship owner upon goods
for freight, is apt to be treated as a mere com-
mon law lien depending upon possession; and
in Peoples Ferry Co. v. J&ers, 61 U. 8. (20 How.),
401, it is said that "liens on vessels incumber
commerce and are discouraged."

As in all of these cases there would exist a
personal liability on the part of the owners, it is
very plain that that does not necessarily estab-
lish a privilege against the ship.

In respect to the lien on goods for freight, it
is well settled that it does not arise upon
any part until after that {Ntrt is actually on
board; i. e., only, and so far as the contract in
respect to them is executed, and it would seem
to follow necessarily that the reciprocal lien of
the ship on the goods cannot arise except upon
the same state of facts.

Valln, Com., Lib. 1, tit. 14, sec. 16; 2 Bou-
lay Paty. de Droit Com., 281 ; BaHeyY, Daman,
8 Gray, 91.

In Uie recent case of Morewood v. PoUok, 18
Eng. L. & E., it was held, under facts like the
present, that the goods on a lighter were not
on board and, therefore, the owners were per-
sonallv responsible on their contract to carry,
"perils of the sea only excepted.*' when they
would not have been liable if the goods had
been on board.

In the case of His Steamier Poea^ntae in the
Supreme Court of Ohio, it was adjud^ that,
neither by the statute nor the miaritime law,
was the steamer liable in rem, unless the goods
were actually on boaid.

The same principle has been distinctly af-
firmed by this court in two cases:

The Freeman v. Buckingham, 69 U. 8. (18
How.), 188; VandeuHXier v. Mills, 60 U. 8. (19
How.), 90.

Finally, various other grounds of defense
might be suggested. But it seems enough to
have shown, ii that has been done, that, by the
principles and rules of the maritime law, the
freighter is not entitled to a preference over

600

other creditors, if he is indeed recognized as a
creditor at all, when the loss is purely acci-
dental, when the goods have not been on board,
and Uie loss is not occasioned by the fault of
the vessel proceeded against, its ownera, master
or crew.
Mr, Milton Andro8» for appellee:

I. Between the libelant and the roaster of
the vessel, against which a lien is sought to be
enforced in Uie present case, there was a valid
contract of affreightment, which is binding on
the claimant and owners thereof.

II. The owners of said vessel are liable as
common carriers, and such liability oommenoed
immediately, the master received the libdant's
merchandise for transportation.

1. Because their ship was a general ship.

2. Because it appears from the pleadings that
they are charged with and assumed responsi-
bilities as such.

Lawcs on Charter-parties, 1; Mau. & PoL.
142; Sm. Merc. L., 298; Fland. 8hip., 449; 1
Bell's Com., b. 8, p. 1, ch. 5, sec. 2; 2 Holt on
Ship., 57; Chit. & T. Carr., 224; 3 Kent,2(».

In this country, it seems to be well settled.
that a person who undertakes, though it be
only pro hae vice, to act as a common carrier,
incurs the responsibility of one.

Gordon v. Hutchinson, 1 Watts & 8., 285;
Powers V. Davenport, 7 Blackf., 497; Tumeg
V. Wilson, 7 Yerg., 840; Oraig v. ChOdress,
Peck., 270: McGhires v. Hammond, 1 Baj, 99;
Moses V. Norris, 4 N. H.. 804.

8. The owners being liable in damages for
the non-delivery of the libelant's merchandise
which had been by his agent delivered to and
received bv the master of the said vessel for
transportation, the ship in specie is also liable,
and this liability arises from the contract of
affreightment which has been executed on the
part of the libelant.

The contract was an entire one; it was to
carry from the cotton press to Boston, and the
lighter was employed merely as auxiliary to the
purposes of the voyage; Uiis, so far as the li-
belant's goods were affected, oommenoed when
the lighter left for the ship, and in questicHis
of insurance, boats so employed have bera con-
sidered a part of the vessel.

Parsons v. Mass. F. db M. Ins, Co,, 6 Mass.,
197. 208; Snow^. Oaruth, 1 8prague, 825.

Again ; as the lien is reciprocal, where the
merchandise is bound to the ship, in such esse
the ship is bound to the merdiandise. Kow, in
the present case the merchandise was bound to
the ship. '* The lawful possession of the eoods
being once acquired for the purpose of car-
riage, the carrier is not obliged to restore them
to tne owner, even if the carriage be dispensed
with, unless upon being paid his due ranuner-
ation ; for by the delivery he has already in-
curred certain risk.

Ang. on Carr., 368, sec. 868.

The owners and masters of general ships and
vessels, both on the high seas and on the navi-
gable rivers and canals, are entitled to tlwsame
particular lien for the price of the carriage of
the goods delivered to them for transportation.
And it is so, both by common law and the
written maritime code of Europe.

Ang. on Carr., 864,'8ec. 869; 4I>omat. 272.

278; The Nathaniel Hooper. 8 Sumn., 548; Jcr.

1 dan V. Warren Ins. Co., 1 8tor7, 842; Bork v-

1860.

BuLKLSY y. Nattmssao Stsah Cottok Co.

886-804

Norton, 2 McLean, 432; Palmory, LoriUard,
16 Johns., 848; Tindall y. Taylor, 4 El. & B.,
227; (narke v. Needles, 25 Penn., 888.

4. The reception and lading of the libelant's
merchandise on board of the hghter by the mas-
ter of the vessel, for the purpose of transport-
ing it to the same, was a sufficient performance
of the libelant's part of the contract of affreight-
ment, to enable him to hold the ship in specie
as security for the due performance of the mas
ter's part of the agreement.

Mr, Justice Nelson delirered the opinion of
the court:

This is an appeal from a decree of the Circuit
Court of the United States.sitting in admiralty,
for the District of Massachusetts.

The libel in the court below was against the
barque Edwin, to recover damages for the non-
delivery of a portion of a shipment of cotton
from the port of Mobile to Boston. The facts
upon which the question in this case depends
are found in the record as agreed upon by the
proctors, both in the district and circuit courts,
and upon which both courts decreed for the
libelant.

From this agreed state of facts, it appears
that the master of the vessel, which was then
lying at the port of Mobile, agreed to carry for
the libelant 707 bales of cotton from that port to
Boston, for certain freight mentioned m the
bills of ladini^.

The condition of the Bay of Mobile, which is
somewhat peculiar,become8 material to a proper
understanding of the question in this case.

Vessels of a large size, and drawing over a
given depth of water, cannot pass the bar in the
bay, which is situate a considerable distance be-
low the city. Their cargo is brought to them
in lighters, from the city over the bar, and then
laden on board the vessels. Vessels which, from
their light draft, can pass the bar in ballast, go
up to the city and take on board as much of
their cargoes as is practicable, and, at the same
time, allow them to repass it on their return, and
are then towed below the bar, and Uie residue
of their load is brought down by lighters and
put on board.

In either case, when the vessel is ready to re-
ceive cargo below the bar, the master gives
notice of the fact to the consignor or broker,
through whom the freight is engaged, and pro-
vides, at the expense of the ship, a lighter for
the conveyance of the goods. The lighterman
applies to the consignor or broker, ana takes an
order for the cargo to be delivered, receives it,
and gives his own receipt for the same. On de-
li venng the cargo on board the vessel below the
bar, he takes a receipt from the mate or proper
officer in charge.

The usual bills of lading are subsequently
flinied by the master and delivered.

In the present case the barque Edwin received
the principal part of her cargo at the city, and
was then towed down below the bar to receive
the residue. The master emploved the steams
M. Streck for this purpose, and 100 bales were
laden on board of her at the city, to be taken
down to complete her load, and for which the
master of the lighter rave a receipt; after she
had passed the bar and had arrived at the side
of the barque, but before any part of the 100
bales was taken out, her boU^ exploded, in con-
See 24 How.

sequence of which the 100 bales were thrown
into the water and the lighter sunk. Fourteen
of the bales were picked up by the crew of the
vessel, and brought to Boston with the 607 bales
on board. Eighty bales were also picked up by
other persons, wet and damaged, and were sur-
veyed and sold ; four remain in the hands of the
ship broker, at Mobile, for account of whom it
may concern; two were lost.

The master of the barque signed bills of lad-
ing, including the 100 bales, bein^ advised that
he was bound to do so, and that if he refused,
his vessel would be arrested and detained. On
her arrival at Boston, the master delivered the
607 bales to the consignees, and tendered the
fourteen which were refused.

A question has been made on the argument,
whether or not the libelant could recover upon
the undertaking in the bills of lading, they
having been signed under the circumstances
stated, or must resort to the orignal contract of
idlrei^tment between the master and the ship-
per. The articles in the libel place the right to
damages upon both grounds. The view the court
has ti&en of the case supersedes the necessity of
noticing this distinction.

The court is of opinion that the vessel was
bound for the safe shipment of the whole of the
707 bales of cotton, the quantity contracted to
be carried,f rom the time of their delivery by the
shipper at the Citv of Mobile, and acceptance
by the master, and that the delivery of the hun-
dred bales to the lighterman was a delivery to
the master; and the transportation by the light-
er to the vessel the commencement of the voy-
age in execution of the contract, the same, m
judgment of law, as if the hundred bales had
been placed on board of the vessel at the citv,
instead of the lighter. The lighter was simply
a substitute for the barque for this portion of
the service. The contract of affreightment of
the cotton was a contract for its transportation
from the City of Mobile to Boston, covering a
voyage between these termini, and when deliv-
ered by the shipper, and accepted by the mas-
ter at the place of shipment, the rights and ob-
ligations of both parties became fixed — ^the one
entitled to all the privileges secured to the owner
of cargo for its safe transportation and deliverv ;
the other, the right to his freight on the comple-
tion of the voyage, as recognized by principles
and usages of the maritime law.

The true meaning of the contract before us
cannot be mistaken, and is in perfect harmony
with the acts of the master in furtherance of its
execution.

Both parties understood that the cotton was
to be delivered to the carrier for shipment at the
wharf in the city, and to be transported thence
to the port of discharge. After the delivery and
acceptance at the place of shipment, the ship-
per had no longer any control over the property,
except as subject to the stipulated freight.

The contract, as thus explained, being made
by the master in the course of the usual employ-
ment of the vessel, and in respect to whicn he
Is the general agent of the owner, it would seem
to follow, upon the settled principles of admi-
ralty law, which binds the vessel to the cargo,
and the cargo to the vessel, for the performance
of the undertaking, that the ship in the present
case is liable for me loss of the hundred bales,
the same as any other portion of the cargo.

601

SOO-803

BUPBaUB COUBT Of THB UlOTBD StATB&

Dsc Tkioc

It is insisted, however, that the vessel is ex-
empt from responsibility, upon the ground that
the one hundred bales were never laden on
board of her. and we referred to several cases
in this court and in England in support of the
position. 18 How., 189; 19 How., 90; Orant
V. Noru>ay, 2 Eng L. & E., 887; 18 Eng. L.
&E., 651; 29 Eng. L. & E., b2i8. But it will
be seen, on reference to these cases, the doc-
trine was applied, or asserted, upon a state of
facts whollv different from those in the present
case. In the cases where the point was ruled,
the goods were not only not laden on board the
vessel, but they never had been delivered to the
master. There was no contract of affreight-
ment binding between the parties, as there had
been no fulfillment on the part of the shipper,
namely: the delivery of the cargo.

It was conceded no suit could have been
maintained upon the original contract, either
against the owner or the vessel ; but as the bill
01 lading had been signed bv the master, in
which he admitted that the goods were on board,
the Question presented was, whether or not the
admission was not conclusive against the owner
and the vessel, the bill of lading having passed
into the handis of a bonajide holder for value.

The court, on looking into the nature and
character of the authority of the master, and the
limitations annexed to it by the usages and prin-
ciples of law, and the general practice of ship-
masters, held, that the master not onlv had no
general authority to sign the bill of lading, and
admit the goods on board when contrary to the
fact, but that a third partv taking the bill was
char^ble with notice or the limitation, and
took it subject to any infirmity in the contract
growing out of it.

The first time the question arose in England,
and was determined, was in the case of Orant
V. Nortoap, 2 Eng. L. & K, 887, in the com-
mon pleas (1851), and was in reference to the
stale of facts existing in this and like cases, and
in connection with the principles involved in
its determination, that the court say the master
had no authority to sign the bill of lading unless
the goods had been shipped, cases in which
there had been no delivery of the goods to the
master, no contract binding upon ue owner or
the ship, no freight to be carried and, in truth,
where the whole transaction rested upon simu-
lated bills of lading, signed by the master in
fraud of his owners.

In the present case the cargo was delivered
in pursuance of the contract, the goods in the
custody of the master, and subject to his lien
for freight, as effectually as if they had been
upon the deck of the ship, the contract confess-
edlv binding both the owner and the shipper;
and unless it be held that the latter is entitled
to his lien upon the vessel also, he is deprived
of one of the privileges of the contract, when,
at the same time, the owner is in the full en-
joyment of all those belonging to his side of it.

The argument urged against this lien of the
shipper seems to go tlie length of maintaining,
that in order to uphold it there must be a
physical connection between the cargo and the
vessel, and that the form of expression in the
cases referred to is not to be taken in the con-
nection and with reference to the facts of the
particular case, but in a generid sense, and as
applicable to every case involving the liability

602

of the ship for the safe transportation and de-
livery of the cargo. But this is obviously too
narrow and limited a view of the liability of the
vessel. There is no necessary phjrsical oonneo-
tion between the cargo and the ship, an a foun-
dation upon which to rest this liability. The
unlading of the vessel at the port of discharge,
upon the wharf, or even the deposit of Uie
goods in the warehouse, does not discharge the
uen, unless the delivery is to the consignee of
the cargo, within the meaning of the bill of lad-
ing; and we do not see why the lien may not
attach, when the cargo is delivered to the mas-
ter for shipment before it reaches the hoM of
the vessel, as consistently and with as much
reason aa Uie continuance of it after aeparatioa
from the vessel, and placed upon the wharf, or
within the warehouse. In both instances the
cargo is in the custody of the master, and in the
act of conveyance in the execution of the con-
tract of affreightment We must look to the
substance and good sense of the transaclioo ; to
the contract, as understood and intended by
the parties, and as explained by its terms, and
the attending circumstances out of which it
arose, and to the grounds and reasons of the
rules of law upon the application of which their
duties and obligations are to be asoertained, in
order to determine the scope and extent of
them; and, in this view, we think no well
founded distinction can be made, as to the lia-
bility of the owner and vessel, between the cMe
of the delivery of the goods into the hands of
the master at the wharf, for transportaticMi oo
board of a particular ship, in pursuance of the
contract of affreightment, and the case as made,
after the lading of the goods upon the deck of
the vessel : the one a constructive, the other an
actual possession ; the former, the same as if the
goods had been carried to the vessel by her boatis
mstead of the vessel going herself to the wharf.
T%e decree of the court beUno, qffirmed,

AlTg-l Cliffy 888.

ated-76 U. 8. (8 WaU.), 1« : 70 XT. 8. (9 WaU .). SSl:
1 BlSB^ 807 : 86 Am. Bep., 46 (66 GsL, OD.

THE RECTOR, CHURCH-WARDENS AND
VESTRYMEN OF CHRIST CHURCH, in
the CiTT OF Pbiladblhhia, in trust for
CHRin* Church Hospital, Plfk, m Br.,

THB COUNTY OP PHILADELPHIA.

(Bee S. C, U How., 80(^«B.)

Exemption f^rom taxation not a vetted right — re-
peal cfitie not in contravention qf U, 8, Om-
etittUton,

Where an exemption of the proper^ of a oorpon-
tlon from tazesiooncedod by anAot of a State utgi^
lature, was spontaoeouSt and no wrvloe or duty, or
other remunerative condition, was imposed on tlie
^rporation, it belongs to the class of laws denomi-
nated priioatQia fanorabilia.

It is not a necessary implication that the ooncs-
sion is perpetual, or was designed to continue dur>-
ing the corporate existence.

Such an interpretation is not to be favored, astke
power of taxation Is necessary to the ezistBiioeoC

Nora.— PKHDer of States to taac. See note to Prov*
Idenoe B*k v. BlUings, » U. 8. (4 Pet.), 614 ; and iM>e«
to Dobbins V. BrieOo^ 41 U. B. (16 PeU>

M r.&

1860.

Chribt Chubch v. Philadblphxa Gouftt.

800-808

the State, and must be exerted acoordio^r to the
vaiyinflT condltlonB of the commonwealth.

It is the nature of such a privilege as the Act con-
fen, that it exists bene plaettum^ and may be re-
voked at the pieasure of the sovereign.

An Act of the same Legislature partially repeal-
inar such exemption is not repugnant to the Consti-
tution of the united States as tending to impair a
legislative contract.

Arffued Deo, 18, 1860. Decided Jan, 2, 1861.

IN ERROR to the Supreme Court of the State
of Pennsylvania for the Bastem District.

This case arose in the court below, upon a
case stated in the nature of a special verdict, for
the opinion of that court. The court rendered
a Judgment in favor of the defendant, the
County of Philadelphia; whereupon the plaint-
iffs sued out this, writ of error,

A further statement of Uie case appears in the
opinion of the court.

Memm. P. HeCall and R. Johnson* for
plaintiffs in error:

The question whether the Legislature of a
State may irrevocably relinquish the power of
taxing, is one not open to discussion in wis court.

Qotdon V. AvvttA Tax, 8 How., 188; 8UUe
Bank v. Knoop, 16 How., 869; Dodge v. Wool-
sey, 59 U. 8. (18 How.). 881.

The only question, then, is, whether the Act
of 1888 (see opinion of the court) is a contract
with the hospita],in the sense of the word ''con-
tract " as used in the first article of the Consti-
tution of the United States. The view taken of
the Act by the oonrt below in 12 Harris, 282, is
as follows: " but no duty is imposed upon the
institution as the consideration of the grant. It
is required to do nothing. It is left to pursue
its own course as freely as before. Tnere is
therefore nothing in the Statute of Exemption
which savors of contract."

It is submitted that this view is erroneous.
If we take the elementary definition of a con-
tract, an agreement on sufl^cient consideration
to do or not to do a particular thing, this statu-
tory exemption has all the features of a con-
tract. It is an agreement by the State, on a suf-
ficient consideration if that were necessary, to
wit: the relief by the hospital of persons who
would otherwise be chargeable on the public,
that the property of the hospital shall not be
taxed. Just as a grant, which is a contract ex-
ecuted, amounts to an extinguishment of the
right of the gqantor, and implies a contract not
to reassert that right.

Fletcher v. Peck, 6 Cranch, 187.

It LB not less a contract because it does not in
terms stipulate for any mutual return of service
on the part of the Corporation, as the consider-
ation of the grant. No one doubts, after Flet-
cher V. Peek, Terret v. Taylor, and Dartmouth
College v. Woodwo^d, that a grant by the Legis-
lature is a contract executed, which cannot be
repealed by a subsequent Legislature. A leg-
islative grant always imports a consideration
from the deliberate character of the Act, and a
valuable consideration is not essential.

Mayor v. B. A 0. R R.Co., 6 Gill.,288; Der-
by Turnpike Co. v. Parki, 10 Conn., 522.

There is a distinction between legislative Acts
which are of a public nature, adopted for the
benefit of the whole community, to be varied
or discontinued as the public good may require,
and statutes which confer private rights of
property. The former class is illustrated by

See 24 How.

BuOer v. Penneyleania, 10 How., 402; Eaet
Ewriford v. Hartford Bridge Co., 10 How., 511.

The latter class is illustrated by the cases of
Fletxher v. Peek, 6 Cranch, 89; TerreU v. Tay-
lor, 9 Cranch, 48; Dartmouth College v. Wo(^-
ward, 4 Wheat., 618.

We submit that the Act exempting the prop-
erty of Christ Church Hospital from taxation
falls within the latter class. The party on whom
the immunity from taxation is conferred, is a
private eleemosynary Corporation. The statute
is not a public and general law. It does not
affect the whole community, but confers on th^
hospital a special private nght of property.

%BQ New Jereey v. WHaon, 7 (branch, 164;
Gordon v. Appeal Tax Court,Z How. ,188; Dodge
V. WooUey, 59 U. S. (18 How.), 880; 8taU Bank
of Ohio v. Knoop, 16 How., 869; Hardy v. Wal-
ton, 7 Rck., 108; Mathene v. QMen, 5 Ohio
St., 861; Atwaterv. Woodbridge, 6 Conn., 228;
'iOebome y. Humphreys, 7 Conn., 886; Landon
v. Litchfield. 11 Conn., 251.

It seems to be well established by authority
of decided cases, that an exemption from taxa-
tion annexed by the Legislature to a grant of
land, or contained in an Act of incorporation,
or in a general law under which an incorpora-
tion is created, is a contract which cannot be
impaired by subsequent legislation.

The question then is, does it make any real
difference in point of principle, that the immu-
nity from taxation is not contained in the Act of
incorporation, but in a subsequent legislative
act? Is it the less a contract in the latter case
than in the former? Why is not a surrender
to existing corporations of the right to tax, as
much a contract as a gift of land or other prop-
erty to such a corporation? No one.can doubt
that a legislative grant of money to a hospital
or university already in existence, is a contract
which could not be revoked by a subsequent
Act of the Legislature. It is a principle perfectly
well settled,tbat the Legislature can no more re-
voke its grants than a donor his gifts when deliv-
ered. A surrender of the right to tax seems to
stand on the same footing as a grant of money
or other property. So far as the question of leg-
islative contract is concerned, the material in-
quiry seems to be, not whether the grant was
cotemporaneous with the charter, but whether
it confers private rights upon a private corpora
tion. If it does, it w a contract within the pro-
tection of the Constitution.

See The Derby Turnpike Co. v. Parks, 10
Conn., 522.

Mr. Heni7 T. Kin^f, for the defendant in
error:

The powers of the co-ordinate branches of the
(Government of Pennsylvania, are designated
by the constitution of that State. That is the

Paramount law, and in the Judgment of the
upreme Court of that State in 1858, the Legis-
lature had no power to alienate any of the
rights of sovereignty, such as that of taxation,
so as to bind future Legislatures, and any con-
tract to that effect Is void.

MoU V. BaUroad, 80 Pa., 27.

It is assumed to be settled doctrine here, that
that decision is conclusive upon this court, and
will be implicitly followed.

See Oreen v. Neal, 6 Pet., 291.

The decisions which show that the passage
of a state law impairing the obligation of con-

608

41-65

BtTPBlOCS GOUBT 09 TBS UkITB]) StATBS.

Dbc. Tkrv.

tracU is in violation of tlie 10th section of Arti-
cle 1 of tlie Ck>nstitution of the United States,
appear to be unnecessary. The law on that
point has been so often and so authoritatively
announced, that there is little daneer of its ever
being shaken. See the decision ofthe Supreme
Court of Pennsylvania in Baspiialy. Phu. Co,,
24 Pa. St.. 232.

It is not pretended that if the Act of 1888 is
in its nature a contract within tiie power of the
Legislature, a subsequent Act could impair it;
but it is submitted that no case can be found
where a law has been held against the Federal
Constitution, which did not operate to defeat
vested rights. What rights have been vested,
or been created, by reason of the Act of 18^?
The cases cited by the other side prevented a
devestiture of rights, but where no ri^ht has
vested against the State or the public, me law
has been held constitutional.

CharUa River Bridge v. Warren Bridge, 11
Pet., 420.

Mr, Justice Campbell delivered the opinion
of the court:

This cause comes before this court upon a
writ of error to the Supreme Court of Pennsyl-
vania, under the 25th section of the Act of
Congress of the 24th September, 1789 (1 Stat,
at L., 78). In the year 1888 the Legislature of
Pennsylvania pawea an Act which r^ted **ttiat
Christ Church Hospital, in the Citv of Phila-
delphia,had for many vears affordea an asylum
to numerous poor and distressed widows, who
would probablv else have become a public
charge; and it being represented that, in conse-
quence of the decay of the buildings of the hos-
pital estate, and the increasing boraen of taxes,
its means are curtailed, and its usefulness limit-
ed," they enacted, " tliat the real property, in-
cluding jjound rents, now belonging and pay-
able to Christ Church Hospital, in me City of
Philadelphia, so lone as the same shall continue
to belong to the said hospital, shall be and re-
main free from taxes."

In the year 1851 the same authority enacted
" that all property, real and personal, belonging
to any association or incorporated company
which is now by law exempt from taxation,
other than that which is in the actual use and
occupation of such association or incorporated
company, and from which an income or reve-
nue IS derived by the owners thereof, shall here-
after be subject to taxation in the same manner
and for the same purposes as other property is
now by law taxable, and so much of any law
as is hereby altered and supplied be, and the
same is hereby repealed. " It was decided in the
Supreme Court of Pennsylvania, that the ex-
emption conferred upon these plaintiffs by the
Act of 1888 was partially repealed by the Act
of 1851, and that an assessment of a portion of
their real property under the Act of 1851 was
not repugnant to the Constitution of the United
States.as tending to impair a legislative contract
they Sieged to be contained in the Act of As-
sembly of 1888 aforesaid.

The plaintiffs claim that the exemption con-
ceded by the Act of 1838 is perpetual, and that
the Act itself is in effect a contract. This con-
cession of the Legislature was spontaneous, and
no service or duty, or other remunerative con-
dition, was imposed on the Corporation. It be-

longs to the class of laws denominated privffegia
favorabiUa. It attached only to such real prop-
erty as belonged to the Corporation, and whOe
it remained as its property; but it is not a nec-
essary implication from these facts that the coo-
cession is perpetual, or was designed to continoe
during the corporate existence.

Su(3i an interpretation is not to be favored.8s
the power of taxation is necessary to the exist
enoe of the State, and must be exerted accord-
ing to the varying conditions of the oommon-
wealth. The Act of 1883 belongs to a class of
statutes in which the narrowest meaning is to
be taken which will fairly carry out the mteot
of the Legislature. All laws, all political in-
stitutions, are dispositions for the future, and
their professed object is to afford a steady and

gsrmanent security to the interests of soctetj.
entham says, **that all laws may be said to
be framed with a view to perpetuity ; but per-
petual is not synonymous to irrevocable; and
the principle on which all laws ought to be. sod
the greater part of tiiem have been established,
is that of defeasible perpetuity — a perpetuity
defeasible by an alteration of the circumstances
and reasons on which the law is founded/' The
inducements that moved the Legislature to cos-
cede the favor contained in the Act of 18S3 are
special, and were probably temporary in tbeii
operation. The usefulness of the CorpoFatioa
had been curtailed in consequence of the decay
of their buildings and the burden of taxes.

It may be supposed that in 18 years the build-
ings would be renovated, and that the Corpora
tion would be able afterwards to sustain some
share of the taxation of the State. The Act
of 1851 embodies the sense of the L^islatureto
this effect.

It is in the nature of such a privilege as the
Act of 1883 confers, that it exists bene plaeihim
and may be revoked at the pleasure of the sot-
ereign.

Such was the conclusion of the courts in Om-
monweaUh v. Bird, 12 Mass., 448; Dale v. Gift-
emor, 8 Stew. (Ala.), 887; Alexander ▼. Dukt
of WeUingUm, 2 Russ. & M., 85; 24 FAl 8l(13
Har.), 282; Lindley, Jurisp., sec. 42.

It ie the opinion of the court that there it no er-
ror in the judgment ofthe Supreme Ckntri, teiih'
in the scope of t?ie torit to that court, and itt
Judgment is affirmed.

Cited— 83 U.S.. 698: 94 U.S., 510: 97U.S.,«8: 1<B
U. 8., 661 ; 8 MoAr., 186: 14 Minn., 8S8; 67 M. T., 619:
2 Am. Rep.,88, 9e(19Mlch., 260) : 6 Am. Rep^ 258 (104
Mass., 446): 8 Am. Rep.. 145 (49 Mo., 480).

BRADDOCK JONES. P^. in Br.,

f>.

JAMES G SOULARD.

(See S. C 24 How., 41-66J

When riparian owner owns to center ef fre^h-
footer river — eke of nver does not alter tie
rute-^CUy of 8t, Jjoui^—sehoci land.

All grrants of land bounded by fresb-water lims.
where the expressions desl^rnating- the water Uoe
are general, confer the proprietorship oo Hk
grantee to the middle thread of the stream. eoA
entitle him to the accretions.

The doctrine, that on rivers where the tide «hl)f
andjiiows, grants of land are bounded by ordinafT

es U.S.

1860.

JOHXB T. BOUL4BD.

41-^

biffta water mark, has no applloation In saoli caw;
nor does the size of the river alter the rule.

The City Charter of St. Louis of 1800 extends to
the eastern boundary of the State of Mlssourii In
the middle of the River Mississippi.

The entrv set up In defense In the oourt below
is void, as held In Klssell v. The St. Louis Schools.
59 U. 8.(18 How.)

The school corporation held the land In dispute,
with power to sell and convey the same in fee to
the defendant in error. In execution of their trust.

tiubmiUed Dec, 12, 1860, Decided Jan. 7, 1861,

IN ERROK to the Circuit Ck)urt of the United
States for the District of Miasouri.

This was an action of ejectment brought in
the court below, by the defendant in error,
Soulard, to recover possession of a part of S.
404 of the series of St. Louis school lands.

The title of Soulard was deduced from the
Corporation of the St. Louis public schools. It
^as admitted that all the title of this Corpora-
tion was vested in the said Soulard. The de-
fendant held under the City of St. Louis, whose
claim was derived through a statute of the
State of Missouri.

The trial below resulted in a verdict and
judgment in favor of the plaintiff, whereupon
the defendant sued out this writ of error.

A further statement of the case appears in
the opinion of the court.

Mr, M« Blair and P« B. Garesche* for
plaintiff in error:

The plaintiff in error submits:

Ist. That the Town of St. Louis, as the same
stood incorporated on the 18th June, 1812, did
not extend to the middle of the main cluuinel
of the Mississippi River as its eastern boundary,
but only to high water mark on its right bank.

2d. £ven if it did so extend, yet at most the
land in controversy was but reserved for the
support of schools, not actually granted for that
purpose, and upon the admission of the State
of Missouri, in 1820, it became the property of
the State.

8d. That the first direct grant of this land by
the State was made by the Act of 8d March.
1851, under which plaintiff in error claims.

The general proposition first laid down de-
X>ends on the correctness of the following argu-
ment, viz. : the limit of private ownership in
water-courses when these are navigable in law,
or arms of the sea, is high water mark ; and
such rivers as the Ohio and Mississippi are of
the same nature and dignity at law above tide
water, as ordinary rivers below the flow of the
tide. It will not be denied that when land is
bounded by a tide water river, the limit of pri-
vate property is the mark to which high tide
ascends.

The second branch of this first general propo-
sition is more debatable. Above the ebb and
flow of the tide, no river of England is navi-
gable at all. In inquiring into the definition
of naviffable streams in that country, therefore,
it was R>und that they were correctly described
to be those in which the tide ebbed and flowed.
But navigability is the principal thing; the
flowing of the tide is a mere incident. When,
therefore, wo find that there are navigable
waters in America or elsewhere not flow^ by
the tide, we seek other definitions of navigable
water, the fiowing of the tide beins no longer
a test. Whatever be the new definition, we
attach to navigable waters here the same con-
sequeuces, properties and incidents that the

Bee 24 How.

luristB of England attach to navigable waters
In that countiT. In other words, we treat our
western inlana rivers in the same manner, and
claim for them, and the land bordering on them
the same legal consequences that are predicable
of arms of the sea, properly so called in Eneland.

That no rivers in England are navigable
above tide water is well settled.

Oeneme ChirfY. FUehugh, 12 How., 454.

In the same decision it was declared in the
most solemn and emphatic manner, that such
a definition was inapplicable to the rivers and
lakes of America, ana that these were public
navigable waters (p. 454).

This beinff settled, it is difiicult to resist the
conclusion that they have all the properties of
public navigable waters, such as the sea and its
arms which are flowed by the sea; which last is
declared to be an inmiaterial circumstance, and
by no means an essential feature of naviga-
bility.

If this be conceded, the case of the defendant
in error is at an end; for one of the properties
of arms of the sea is not to be the subject of
private ownership below high water mark.

Naglee v. IngenoU, 7 Pa.: 1 Penn., 106;
Carton v. Blaaer, 2 Binn., 475; 14 Serg. & R.,
71-74; 8 Watts, 434 ; 9 Watts. 228; 2 Devereaux,
80-86; Elder v. Buma, 6 Humph., 858; Me-
Manus v. Oarmiehael, 8 la., 1; Haig?U v. CHy
of Keokuk, 4 la., 199; 1 Walker, Ch., 155; Bui
lock V. Wilson, 2 Port., 488.

But the plaintiff in error is free to confess
that in some of the other States of the Union,
perhaps in a majority of them, a contrary doc-
trine has been laid down, and Uiat the decisions
of the State of Missouri and of the Supreme
Court of the United States may be cited in op-
position to the views which it is the duty of the
plaintiff in error to enforce.

It is imagined that peculiar stress will be laid
upon those cases to be found in the Missouri
Reports, which conflict with the doctrine con-
tended for by the plaintiff in error. But it is
believed that but little weight is due to these Mis-
souri decisions; for in all of them, the matter
seems to have passed without serious dispute or
discussion. There is no evidence that the mat-
ter was argued at the hearing, and it is almost
certain that the points now made were not pre-
sented to the oourt on those occasions. If they
were, they received no attention. Under these
circumstances, it \b submitted that this court
should consider itself free to consider the case
as of the first impression, so far as the decis-
ions of the Supreme Court of Missouri are con-
cerned.

As to the decision of this court in the case of
HouHxrd V. IngereoU, 18 How., 416 to 422, the
point covered by this diatum was not neces-
sarily decided, and so what fell from the court
on that occasion was obiter dictum.

On the second point plaintiff in error sub-
mits, that up to the Act of Jan. 27, 1881, the
United States did not grant, absolutely, to the
schools or to the state for the use of schools,
any of the land reserved for the support of
schools by the 2d sec. of the Act of 18th
June. 1812. Up to the passage of this Act
there was only a reservation of certain lands,
but no grant of them. This was decided ex-
pressly In the case of Edmmond v. ITie Bchoote,
8 Mo., 65.

606

41-65

SUPHBICB COUBT OV THB UHITBD BtATBS.

Dec. Tmbm,

It follows that there was no final disposition
of the land in controversy by the United States
prior to the admission of Missouri as a State,
which occurred in 1820; and the point taken
by the plaintiff in error is, that this land being
coverea by the waters of the Mississippi River
at that time, was a part of the bed of the stream,
and that according to the doctrine of I\>UaHP»
L69$ee V. Bdgan, 8 How., 212, it passed by the
admission of Missouri to the state. The sub-
sequent grant of it, therefore, by the United
States was of no validity.

Navigability is the test of sovereignty. If
the water be navigable, the bed of the stream
over which it flows belongs, as an incident of
sovereignty, to the State in which it is found:
and whether it is flowed by the tide or not can
make no difference, as was declared by the
court in the case of The Chnssee Chief v. FUg-
ht^h.

The land in controversy never was included
within the Town of St. Louis as it stood incor
porated in 1812, and so was not reserved for
the support of schools. Further, that not be-
ing so reserved, but being an incident of sov-
ereignity, Missouri had the entire ownership of
it on her admission into the Union ; and as in
1888 the State of Missouri onlv granted to the
school corporation so much of the lands as had
been reserved for school purposes, the land in
controversy was not within the description of
the 9^ section of that Act.

The first Act which embraces this land in
terms, was passed in 1851, and by it this land
was ^ven to the City of St. Louis, under whom
the plaintiff in error claims.

If these views be correct, the Judgment of
the court below must be reversed.

Mesers. Thomas T« GaAtt and ThoauM
C. Reynolds, for defendant in error:

The defendant in error submits the following
propositions:

1. The documents read in evidence bv the
plaintiff below are conciusive in favor of plaint-
iff against anvone not having a better title un-
der the United States to the premises in contro-
versy.

2. The land, within the assignment and sur-
vey 404 is, as a proposition of »ct, admitted to
be in T. 45 R. 7 £. in St. Louis County, and
to be within the reservation for the schools by
the &d section of the Act of 18th June, 1812;

Srovided that the eastern boundary of the Town
t. Louis, as then incorporated, was the middle
of the main channel of the Mississippi River.
But the middle of this channel is that eastern
boundary as a proposition of law.

8. If it wan within this reservation, the title
passed to the school corporation by the several
acts and documents react in evidence by plaint-
iff, whether, upon the admission of Missouri as
a State, the proprietary risht to the premises in
controversy was continued in the United States,
or tranferred to the State of Missouri.

Upon the first proposition, it is not intended
to do more than to refer to the case of KiseeUy.
The SchooU, 59 U. S. (18 How.), 19, where this
matter was carefully considered, and where
the very pre-emption of Duncan, which is set up
as one of the defenses in this action, was pro
nounced to be a nullity. The examination of
the second proposition" brings up the inquiry

i06

whether the eastern boundary of the Town of
St Louis, as it stood incorporated at the date
of the Act of 18th June. 1812. was the middle
of the main channel of the Mississippi River,
and whether the out boundary run by the sur-
veyor-general in 1840 had for its eastern bound-
ary the middle of the main channel of the Mis^
slMippl* River.

The words used in each case are substantially
the same.

Coming to the description of the town as it
stood incorporated in 1812, we find that the
calls are: '* Thence due east to the Miaiaalppi;
from thence by the Mississippi to the place first
mentioned."

This is the description of an incorporated
town, which is bounded on the east by th«
Mississippi River. That this description is, in
every legal sense, equivalent to a call for the
middle of the main channel of the atream, is
on'e of those propositions which, to use the lan-
guage of Judge Cowen in his learned note to
Ex parte Jenninge, 6 Cow., 518-548, "No
lawyer will hazard his reputation by controvert-
ing." In the same note he remarks, that **the
only question which can generally arise be-
tween the citizen and the state as to the owner-
ship of rivers above the tide, is whether the
former be the owner of the wil adjacent, with-
in the meaning of Hale (p. 548).

In the case at bar, there can be no question
of this kind; for [see 59 U. S. (18 How.), p. 19]
the schools are the owners of all the unappro-
priated land within the survey of which — ^wheth-
er we adopt the description of the Town of Su
Louis as it stood incorporated in June, 1 812, or
of the out-boundary of the town "run ao as to
include the out lots, common lots and com-
mons"— we find the Mississpipi River designa-
ted as the eastern boundary. The only inouiry
is : does this boundary carry us to the middle of
the stream?

The propositions urged by the plaintiff in
error assert, that in the Unitea States a public
river navigable in fact though above the tide,
was ipeo facto subject to all the legal incidents
of what are properly called *' arms of the aea."*
or creeks and rivers fiowed by the tide.

The defendant in error maintains that the
doctrine of Sir Matthew Hale, on this subject,
has been adopted in all its integrity by the
Judicial mind of America.

As the land in question lies in Missouri, we
naturally look, in the first instance, to the de-
cisions in that State, to ascertain the rule by
which controversies respecting land tiUea are
to be determined.

The first decision bearing on this point oocuiv
in 0*FalUm v. Daoget, 4 Mo. , 848. It was f oUov-
ed by the case of SheUon v. Maupin, 10 Mo.,
124. Then came the case of SnutA ▼. (Xif
ofSt. Louie, 21 Mo.. 86; and the case of SmiU
V. Kelly, not yet reported, decided at the March
Term, 1860.

In all these cases, the common law mle laid
down by Hale and referred to by Cowen, was
quietly adopted by the court andf^ indeed, doow
not seem to have been gravely qnealloiied by
the bar. When this question haa oonie tip in-
cidentally or directly before this courts H has
been treated as a settled matt».

See 18 How., in the case of Howard v. Inger-

•s r. s.

1860.

JOHBS Y. BOULABD.

41-65

»U, p. 416, Judge Wayne's opinion, and p.
422, Judge Nelson's opinion; see, also. Jones v,
Johnson, 09 U. S. (18 How.)* p. 160.

These are the latest opinions in which a ref-
erence to this principle is to be found. It has
been repeatedly spoken of, in like manner, in
earlier cases.

After referring to the decisions of the courts
of Missouri and of the United States, it would
seem unnecessary, in respect of the title to
land in Missouri, to speak of the decisions of
other States. Nevertheless, a brief citation of
cases decided in the different states, all agree-
ing with the doctrine of Sir Matthew Hale, may
not be inappropriate.

Brown v. Chadbourne, 81 Me., 9; Storer v.
Freeman, 6 Mass., 489; King ▼. EtTig, 7 Mass.,
496; LuntY. HoUand, 14 Mass., 149; Hatch ▼.
Dunghi, 17 Mass , 289; Claremontv, Carleton, 2
N. H., 869; Oreenleafv, KUUm, 11 N. H.. 681;
Adams Y, fWiM, 2Conn., 488; Warner -7, SovVi-
ieorth, 6 Conn., 471, Pcdmer ▼. MuUigan, 8 Cai.,
307; People v. Piatt, 17 Johns., 196; Hooker t.
Cummings, 20 Johns., 90; Eke parte Jennings, 6
Cow., 618. More than a dozen cases were de-
cided afterwards in New York, in which this
principle was recognized; but all refer to this
case and to Judge Cowen's valuable note.

See 5 Paige. 187, 547. 6 Wend.. 447; 18
Wend., 858; 17 Wend., 671; 20 Wend.. Ill;
22 Wend., 425^; 26 Wend., 404; Ac.; Arnold
V Mundy, 1 Halst.. 1; 8 Zab., 624; Brown y.
Kennedy, 5 Har. & J., 195; Hayt^s ESxWs y.
Bowman^ 1 Rand., 417; Harramond y. Mc-
Olaughon, Taylor, 84, 186; Hagan y. Campbell,
8 Port., 9; Harrison y. Young, 9 Ga., 859:
Jones y. Wa^er Lot Co,, 18 Ga., 589; Morgans,
Reading, 8 Sm. & M.. 866; Morgan y. Living-
ston, 6 Mart., 216; MundpaUtyNo. f y. Orleans
Cotton Press Co., 18 La., 122; 18 La., 278;
Stuart y. Clark's Lessee, 2 Swan., 9, oyerrul-
ing SUderv. Burruws, 6 Humph., 358; Middle-
ton y. Priiehard, 8 Scam., 510; Lormany. Ben-
son, 8 Mich., 18; Jones y. PeUibone, 2 Wis.,
808; Young y. MeBnUre, 8 Ohio, 496; 11 Ohio.
188; 16 Ohio. 540.

All these authorities establish, without any
variation, that the bed of a fresh water stream
or of a river above high water belongs to the
owner of the adjacent soil, and that this holds
pood whether the- portion of the bed which is
la question be navigable in fact or not; the
onl^ consequence of the stream admitting of
navigation above tide water being that the pro-
prietary right of the owner of the adjacent mA\
IS subject to the public easement or serritude,
aa it IS called, by Sir Matthew Hale. At the
trial in the circuit court, the defendant (now
plaintiff in error), cited, among other authori-
ties to support his views, cases from the Su-
preme Courts of Tennessee, Alabama, and
Michigan, being 6 Humph., 858; 2 Port., 486;
and 1 Walk. Ch.. 155. respectively.

The case in 6 Humph, is overruled by that
in 2 Swan., 9; and although the cases cited
from Alabama and Michigan cannot be so dis-
tinctly said to have been overruled by the later
cases of 8 Porter, and Lorman v. Benson (which
will be found in 8 Michigan, 18), it is only be-
cause the previous decisions of those states
were not as supposed bv plaintiff in error; no
previous decision needed to be overruled in
those States.

See 24 How.

It is far from being true that all the waters
of England are unfit for navigation above tide
water, and are not public rivers above that
point. On the contrary, the citations pros-
entljr to be made from Hale's Treatise, " dejure
maris et br<ichiorum ^jusdem," show that the
distinction between nvers navij?able in fact
above tide water, and rivers navigable in the
proper legal sense as being arms of the sea. was
just as familiar to Hale as to the American Ju-
rists. And that it was in full view of the truth
that rivers might be and were used by the pub-
lic as common highways above tide water, that
the doctrines which, as Judge Cowen says, in
his note to 6 Cowen.. 548. *'at this day no
lawyer will hazard his reputation by con-
troverting. " were laid down in the first instance
by Enelish courts, and have since then been
adopted with so much uniformity by the bench
and bar of America. In the second place, it is
a complete missing, not only of the spirit, but
of the letter of the two decisions quot^ from 8
How. and 12 How., respectively, to suppose
that they give any countenance to the conclu-
sions announced and contended for by plaintiff
in error.

By reference to the decisions of the Supreme
Court of the United States since PoUard v.
Hagan, it will be seen that while the doctrine
of that case has been repeatedly reaffirmed,
scrupulous care has been used to restate that
doctrine as it was in the first place laid down,
and to limit the decision by the circumstances
under which it was made, viz.: tliat land
flowed by the sea at ordinary high tide, if not
previously disposed of by the United States,
became the property of the State on its admis-
sion to the Union. This careful reference to
tide water [9 How., 471; 59 U. S. (18 How.).
71>74], and the distinction taken as lately as 18
How., 416, 422, between fresh- water streams
and the arms of the sea, properly so called, are
abundantly sufficient to show, if illustration
were needed, the accuracy with which the doc-
trine declared in PoUard* s Lessee v. Hagan, was
adapted to the particular facts of that case, and
how little it was the purpose of this court to
leave any one at liberty, first to misconstrue
and then misapply the decision in that cause.

The same policy which forbids the acquisi-
tion of exclusive individual rights over the
shore of the sea, forbids the establishment of
such rights over such places as are fiowed by
its tide; for in truth, as far as the tide flows in
any river bed, that bed would be filled by the
sea, if the fresh river water were entirely to
fail. Let us suppose all sources supplying
freflJi water throughout the world to fail, the
beds of rivers remaining as now. In this case,
twice in twenty four hours, for most of these,
they would be filled with water from the ocean.
This would be the true limit of the dominion
of the sea. No one would be at any loss then
to recognize the extent of *'the sea and its
arms." Upon these, then, there is to be no en-
croachment by any private individual. This
limit is fixed by nature and adopted by the law.
If by the supply of the necessary water the
river beds above these limits become navigable,
they become subject to the *' servitude of pub-
lic interest." But while the rights of the pub-
lic or the interests of the public have been so
far consulted in respect of rivers which are

607

41-65

SUFBBMB COUBT OF TBB UnITBD StATBS.

Djbc. Tsex,

thus navigable as to secure to the oommunity
the free use of such streams as common high-
ways, yet subject to this easement, which is
from its nature merely accidental and tempo-
rary, the bed of the stream, usque ad JUum
aqua, belongs to the owner of the adjacent
land. These principles were as clearly recog-
nized and these distinctions as clearly taken in
England as in America.

See Matthew Hale's Treatise, to be found at
large in the volume entitled " Hargrave's Law
Tracts," and the first four chapters of which
are reproduced in the notes to 6 Cow., 640, al-
ready cited.

Public navigable rivers above tide water
have been familiar to the English jurists from
the time of Sir Matthew Hale to the present
day, though then as now, and in England as
well as in America, the physical and legal dis-
tinction between "arms of the sea," or waters
flowed by the tide, and consequently navi^ble
uniformly and constantly, and those nvers
above tide water, which were, by the customary
supply of rain, kept at such a height as to l>e
generally navigable, was clearly recognized,
and that while in respect of all lands adjacent
to the first class of waters the rights of the pro-
prietor extended only to high water mark, in
respect of lands adjacent to public rivers above
the tide, the proprietary right extended tuque
ad Mum o^cb.

The decision of this court that the admiralty
iurisdiction of the United States extends to in-
land waters navigable in fact, has no effect
upon the title of proprietors of land adjacent to
such waters.

6 How., 441.

Improvements in the structure of boats and
in the mode of propelling them majr render
streams, now wholly incapable of serving any
commercial purpose, available for the carrying
on of a most valuable trade by water. Let this
marine commerce spring up, and the protec-
tion which the admiralty jurisdiction of the
United States can give must accompany it.
But shall the title to land adjacent to our
streams which may thus become navigable, in
fact, be affected by the discovery of improved,
methods of navigation? The consequences
which the plaintiff in error attempts to deduce
from the two decisions in 8 How., 212, and 12
How., 454, are completely negatived by the
more recent decision of the same court m 18
How., 881.

The defendant in error denies that any such
change in the ownership of the land in question
occurred upon the admission of Missouri in
1820, as is claimed by the plaintiff in error.
Bui if by that Act the premises in controversy
became the property of the State, the school
corporation have the elder title thereto under
the state, namely: by virtue of the Act of Feb,
18, 1883. If, therefore, the premises in con-
troversy were within the reservation for the use
of schools made by (Congress on June 18, 1812,
though this reservation did not prevent the
subsequent disposition of the land by Congress
(8 Mo., 65), and though it may have passed to
the State of Missouri in 1820. yet the State took
it subject to a trust which it recognized and
fulfilled by the Act of Feb. 18, 1888, and so
the titles, ooth of the State and the United
States, unite in the school corporation.

608

But it is conceived that the title to the land
in controversy did not become vested in the
State by the admission of Missouri.

In the case of a territory just about to become
a state, the United States, as proprietor of the
land on the sea or its arms, owns everything
down to high water mark. As to what' is be-
yond high water mark, the right is either in the
United States as sovereign, or in the Territory,
or in abeyance. As to land bounded by a
fresh water stream or a river above tide water,
the United States as proprietor owna every-
thing to the middle of the main channel. The
change of sovereignty to the State, or the ac-
quisition of sovereignty by the State, will have
no effect upon any proprietary rights.

Mr, JusUee Catron delivered the opinion of
the court:

Soulard sued Jones to recover the northem
part of a United States survey of land laid off
for the St. Louis schools. The part sued for
fronts the Mississippi, and includes a aand bar.
formerly covered with water when the channel
of the river was filled to a navigable stage.
The land in included in the survey approved
June 15th, 1848, designating the school lands;
and the controversy would bie governed beyond
dispute by the principles declared in the case of
KmeU V. St. Louie PubUcSchooU, 18 How., 19.
had this been fast land in 1812, when the grsot
to the schools was made. But it is insisted
that the title to this accretion within the Mis-
sissippi River did not pass by the Act of 1812(2
Stat, at L.. 748), and remained in the United
States till the State of Missouri became one of
the States of the Union, in 1820, when the title
vested in the state as a sovereign right to land
lyine below ordinary high water mark. And
nirthermore, that If the State did not take by
force of her sovereign right, she acouired a
good title to the land known as DnncairB island
By the Act of Congress to reclaim swamp lands.
These claims the State conveyed by a atatute
to the City of St. Louis, and that dbrporatkm
conveyed them to Jones, the plaintiff in error.

Soulard claims under the Corporation of the
St. Louis schools. The school survey No. 404
contains 78,96-lOOths acres, including the land
in controversy.

The Town of St. Louis was incorporated in
1809 by the Common Pleas Court of St. Louis
County, in conformity to an Act of the Teni-
torial Legislature passed in 1808, and the only
contested question in the cause is, whether the
eastern line of the corporation extends to the
middle thread of the MissisBippi River, or is
limited to the bank of the channel. The calls
for boundary in the charter are, '* bc^nning at
Antoine Roy's mill on the bank of the Missis-
sippi; thence running sixty arpents wat;
thence south on said line of sixty arpents in the
rear, until the same comes to theBarrieuDonoyer:
thence due south until it comes to the Bqgar-
loaf ; thence due east to the Mississippi; from
thence by the Mississippi, to place nni men-
tioned."

The expression used in designating boundary
on the closing line in the cluirter, is as rat to
confer riparian rights on the proprietor of the
tract of seventy-nine acres as the call could
well be, unless the last call had been for the
middle of the river.

WI.S.

1860.

Pauier t. Unitbd States.

135-131

Many authorities resting on adjudged cases
have been adduced to us in the printed argu-
ment presented by the eonsel of the defendant
in error, to show that from the days of 8ir
Matthew Hale to the present time all grants of
land bounded by fresh water rivers, where the
expressions designating the water line are gen-
eral, confer the proprietorship on the grantee
to the middle threaa of the stream, and entitle
him to the accretions.

We think this, as a general rule, too well set-
tled,, as part of the American and English law
of real property, to be open to discussion; and
the inquiry here is, whether the rule applies to
so great and public a water-course as the Mis-
sismppi is, at the City of St. Louis. The land
ffrant, to which the accretion attached, has noth-
ing peculiar in it to form an exemption from
he rule; it is an irregular piece of land, of
seventy-nine acres, found vacant by the sur-
veyor-general, and surveyed by him as a school
lot, in conformity to the Act of 1812.

The doctrine, that on rivers where the tide
ebbs and flows, grants of land are bounded by
ordinaiy high water mark, has no application
in this case; nor does the size of the river alter
the rule. To hold that it did, would be a dan-
^rous tampering with riparian rights, involv-
ing litigation concerning the size of rivers as a
matter of fact, rather than proceeding on es-
tablished principles of law.

1. We are of the opinion that the City Char-
ter of St. Louis of 1809 extends to the eastern
boundary of the State of Missouri, in the mid-
dle of the River Mississippi. DotasUm v. Payne,
2 Smith's Lead. Cas., 225.

2. That Duncan's entry set up in defense in
the court below is void, as this court held in the
case of KiueU v. the 8t. Louis SehooU, 18 How.,
19.

8. That the school Corporation held the land
in dispute, with power to sell and convey the
same m fee to the defendant in error, Soulard,
is execution of their trust.

It is ordered that the jttdgment of the circuit
courts beaffirmed^

ated-rr U. S. ao Wall.), IIS; 90 CJ. B. (23 Wall.),
04 ; S4 III., aO-66, 4Se'4S2 : 10 Minn.. 102 ; 87 N. J. Bq..
O40 ; 10 Am. Rep., 519 (64 IIU 66).

JOSEPH C. PALMER. CHA8. W. COOK.
BETHUEL PHELPS and DEXTER R.
WRIGHT, Appts.,

«.

THE UNITED STATES.

(See 8. C, 24 How., 125-181.)

Mexican land case— fabricated claim.

In a Mexican land oase where the only document
found amonff public recordB, shows that the peti-
tioner asked for land, that tbeOovemor dianot
accede to the request, and it is evident that the
grant was fabricated, the claim was rejected.

Argued Dec, £6, 1860. Decided Jan. 7, 1861.

APPEAL from the District Court of the Uoit-
ed States for the Northern District of Cali-
fornia.

Bee 94 How, U. S., Book 16.

The history of the case, and a statement of
the facts, appear in the opinion of the court.

Messrs, J. P. Benjamin and E* L« Goold»
for appellant:

The proof that the titles are genuine and
authentic is overwhelming, and the circum-
stances relied on in support of the adverse pre-
tensions of the government are trivial in the
extreme. The proof of all the papers that pre-
ceded the final grant is found in the govern-
ment's own records and archieves, and need
not be enlarged on.

The signatures are proved by the men who
wrote them, Pio Pico, and J. M. Moreno, and
by the grantee, who was a public officer and
familiar with them.

The cases of Caimbustan and Fuentes, cited
by the attorney -general, are in no sense author-
ities in the cause now before the court; they
are totally inapplicable. In this case, unlike
them, there is record evidence of all the pre-
liminary proceedings, and proof of the loss of
the book in which the concession is certified to
have been recorded.

Mr. J. S* Black, Atty-Gkn., for appellees:

The Judge of the court below, who knew
the witnesses, has declared upon record his
opinion that they are not entitled to credit, and
that conclusively establishes their status in this
court. Where a court of original jurisdiction
expressly bases its decision upon a fact within
its knowledge and sufficient to justify its de-
cision, an appellate tribunal cannot reverse it
on the ground that the fact is otherwise, unless
there be something else upon the record which
shows very clearly that the inferior court was
mistaken. This is peculiarly true of cases in
which the decision turns upon the credibility
of witnesses. For these reasons the opinions
expressed upon the characters of the witnesses
directly or indirectly, expressly or impliedly, by
auditors, masters in chancery, or assessors of
any class, are always re/^rded as conclusive
upon the courts which review their decision —
as conclusive as the verdict of a jury would be
upon the same matter. There is certainly noth-
ing in this case to create a doubt that the
eidge of the court below did entire justice to
iaz and Moreno.

We insist that all the evidence, introduced by
the claimant for the purpose of showing that
the grant existed before the contract, is illegal ;
and besides, when it comes to be examined, it
will be found not to prove any such fact.

We insist, also, that thiserant is void for un-
certainty with which the land is described in
the title papers. It is void beside, because there
is no record of it, for the case comes precisely
within the principle decided in the case of Cam-
buston, repeated m the case of Fuentes as well
as in many other cases determined by this court
within the last three years.

Even if this grant had been regularly made
according to the form of the laws, customs and
usage of Mexico, it would still have been void,
for the reason that the lands claimed under it
were not vacant lands within the meaning of
the Colonization Laws. A part of it had been
appropriated,and was at the time occupied and
used, under a decree of the Supreme Congress,
for military purposes. Another part was de-
voted by law to the use of the church and the
payment of the debt contracted by the Mission

89 6U9

125-181

SUPBEMS COUBT OV THE UlTITBD BtATBB.

Dec. Tbsx,

Dolores. The balance was within the limits of
the pueblo, as claimed by the City of Ban
Francisco, and conceded by the United States.

Mr, JutUee Chrier deliyered the opinion of
the court:

The appellants claim the land in dispute as
assignees of Benito Diaz. This claim was re-
jected by the Board of Land Commissioners,
and also by the district court.

The documentary evidence, upon which the
case rests, is as follows:

1. A petition of Benito Diaz, dated April 8,
1845«in which he asks for a grant of land which
he calls " a vacant place within the jurisdiction
of San Francisco, known by the name of *Pun-
tH de Lobos,' bounded on the north by the sea,
which flows to the port of San Francisco; on
the south with the Cerro, in the rear of the
mission known by the name of the * Cerro de
Laguna Honda;* on the east with the ' Loma
Alta;' and on tlie west by * la Punta de Lobos;*
which will comprehend two leagues." The peti-
tion adds that the presidio andcastle are with-
in the tract, but the petitioner does not ask for
them unless the government is willing; but if
that be done, he promises to erect a house of
certain dimensions in the port of San Francisco
for the military command.

2. An order of reference, bearing date May
24, 1845. and signed Pico, ordering Uie petition
to pass for information to the respective judge,
and await the report of the solitary commander
upon the matter.

8. A report from Jose de la Cruz Sanches,
who seems to have been alcalde at the pueblo
of 3an Francisco, dated August 16. 1845, in
which he declares that the land is vacant, and
the petitioner has the necessary requisites ac-
cording to law, but declining to give any in-
formation about the military lands.

4. A report by Francisco Sanches, the mili-
tary commander, dated at the military com-
mand of San Francisco, October 18, 1845, set-
ting forth that the land the petitioner solicits is
vacant and mAj be conceded to him, "not
comprehending in the grant the two military
points of the castle and preHdio that are in-
cluded in the petition."

These documents are all written on the same
paper. The governor's order of reference is on
the margin, and the reports indorsed. But
there is no concession or order thai a definitive
title should issue to the petitioner, as is always
found when the governor accedes to the prayer
of the petition. See Arguello v. United titoitee,
18 How.. 548.

The petition is not accompanied bv a die-
eHo or map of the land, as requirea by the
Regulations of 1828. This is all the document
found among the archives or public records,
and shows this fact only: that the petitioner
asked for land ; that the mformS did not satiny
the governor, who did not accede to the re-
quest and, therefore, the petitioner took nothinff
by his application. That the governor had
^ood reasons for refusing the prayer of this pe-
tition, is apparent from the fact, not only of
the public fortifications of the harbor being
erected thereon, but because on the 4th of No-
vember, 1884, Governor Figueroa. in his decree
establishing xhepuebia of San Francisco, had
included a large portion of the land now

ttIO

claimed, and the remainder was daimed as the
land of the Mission Dolores, which the De-
partmental Assembly afterwards (15th April.
1846) ordered to be sold at aaction, and sos-
pended the further alienation of the same as
vacant.

This is all the record evidence, on which
alone the court can rely as speaking the truth.
It does not show even an mchoate equity in
Benito Diaz; nor does the fact that he carried
oil some of the materials of the dila|Hdated
fort to build him a house in San Frandaoo add
to it

The next fact which we can admit as suffi-
ciently proved is, the sale by Benito Diaz of the
land cldmed to Thomas O. Larkin, in Be^em-
ber, 1846, reciting a srant or patoit to Diaz,
dated 25th June, 1846. This mstrument pur-

g>rts to be a patent or definitive title to Benito
iaz, for all the land included in the bound-
aries mentioned in the petition. The public
fortifications which protect the harbor of San
Francisco are not excepted. The value of such
a grant might easily be anticipated, when the
occupation of the country by the United States
had taken place. Pio Pico, after his depoa-
tion from tne government, could afford to be
more liberal in 1846 than in 1845, when be very
properly refused to make it. There is no tnoe
of this grant to be found on record, or in the
public archives. It purports to be signed by
Pio Pico, and attested by his secretary, Mor-
eno; and each of them has been called to attest
the genuineness of the signatures. We have
decided in the case of Luoo v. Unked. SiaUs, 23
How., 548, " that, owing to the weakness of
memory with regard to the dates of grants
signed by them, the testimony of the late offi-
cers of the Mexican Government in California
cannot be received to supply or contradict the
public records, or establish a title of which
there is no trace to be found in the public ar-
chives." In compliance with this rule, we
might dismiss this case without further argu-
ment; for if the testimony of the oflloeia of the
government cannot be relied on, much less can
that of more obscure individuals, especially as
we have seen in the Luco case, and some others,
that it is easy to obtain any number of witness-
es to depose to any fact necessary to establish
a fraudulent grant.

The testimony brought in this case to sup-
port this private deed, and give it the force and
effect of a public record, grant or patent, and
to prove that it was executed as such before the
7th of July. 1846, when the oflSdal functions
of the late officers ceased entirely, tends only
to confirm the suspicions in which it b in-
volved, and demonstrates the necessity of the
rule of decision which we have adopted.

Pio Pico was called as a witness. He swears
' ' that he believes the signatures to be genuine,"
and that is all. He does not state where it was
signed, or when it was signed, whether before
or after his expulsion from the government
If executed where it purports to be, vis. : at
Los Angeles, where the public records were
kept, he Knew it could be proved he had Mi
Los Angeles a week before its date (25th June),
and was residing at Santa Barbara, where he
remained till the approach of Fremont to Moo
terey. He knew it could be proved tbat lji<
secretary, who attested the pa^icr, was in Lci»

1860.

Uhttbd Staibs t. Chaka.

181, 182

Anseles, seventy miles distant. He could
prooably rive no better reason for his willing-
ness to sell the public forts, which he had re-
fused to do a year before, than the fact that
the Americans had taken possession of them.
His silence on these points is expressive. There
is no doubt that his testimony, so far as it goes,
is true, and given with his habitual caution. He
might excuse himself for not stating whether
or not this grant was one of the large number
said to have been executed by him on the 8th
of August, on the eve of his departure to Mexi-
co, for the reason that no question was asked
him as to that fact.

Moreno, the secretary, is not so cautious and,
therefore, has involved himself in more diffi-
culties, which are unexplained, and perhaps
inexplicable.

He testifies as follows:

" I recollect this document. I saw it on the
25th June, 1846, when I signed it. This is my
signature as secretary ad interim, and also my
signature to the certificate of registry; and 1
saw Pio Pico sign it as governor. This is his
genuine signature. I think Benito Diaz wrote
the body of the grant himself. After the grant
was completed, i delivered it to the agent of
Benito Diaz, on the road from Los Angeles to
Santa Barbara. The agent to whom I delivered
it, according to my recollection, was £ulo-
gio Celiz."

Now, this document states that it was "ffiven
in the City of Los Angeles, on the 25th of June,
1846," and Moreno swears he saw Pio Pico
sign it, who was on that day seventy miles dis-
tant in Santa Barbara. His certificate, that he
has recorded it in the proper book, he does not
prove to be true; or if he was at Santa Barba-
ra, with Pico, on the 25th, how he could re-
cord it in Los Angeles, where alone the records
were kept. If he executed and recorded it in
LoB Angeles, he does not explain why it is in
the handwriting of Benito Dutz, and not drawn
up by the clerks of the Department as other
grants; and how it came to pass that the date
of the paper, and his certificate, are in the
handwriting of Benito Diaz, who was at San
Francisco, some five hundred and twenty miles
distant; nor how it came to pass, that when he
liad signed and recorded this important docu-
ment, he put it in his pocket, and started for
8anta Barbara, and met Celiz on the road; nor
does he explain how Celiz, who left Ban Fran-
cisco on the 2l8t of June, with this paper
drawn up by Diaz, for the purpose of taking it
to Los Angeles to have it executed, could have
taken it all the way to Los Angeles, five hun-
dred and twenty miles, before it was executed;
and then, that Moreno should meet him on the
road between Santa Barbaia and Los Angeles,
after it was executed. There were no nUl-
roads in Califomia at that time by which to
account for such swift traveling.

Diaz testifies that the document is in his
Jiand writing; ''that he wrote it in San Fran-
cisco, on the 20th or 21st of June, in conse-
quence of a letter which he received from
mndini, whom he calls secretary of the gov-
ernment," but who was not secretary. " That
the country was in such a critical state, that it
^as necessary to send it immediately ; which he
did, by special courier. That from information
of his courier, Celiz, he understood that the

8ee 24 How.

flrant was signed on the road, either at Santa
Buena Ventura, or Santa Barbara." The crit-
ical state of the country, as the Americans
were in possession of the greater part of it, will
no doubt account for the fast riding of the
courier, and in some measure for the execution
of the deed on the highway, and the false cer-
tificate of record of a document which, with-
out such recording, was but a private deed.

If Celiz met Hco where he states, he re-
quired but five days to ride five hundred miles,
while it required eij^ht days for Pico to travel
less than seventy nules.

There is no necessi^ to rely upon the testi-
mony of witnesses Crane and Watson, that
Diaz declared, *' that after the American revo-
lution, he made out the grant in his own hand-
writing; and that, in order to make it valid,
he dated it back to the month of June."

The face of the paper, and the testimony
brought to support it, sufficiently demonstrate
this to be the fact.

It is evident, that when this grant was fab-
ricated, it was not known that conclusive evi-
dence could be produced of the absence of
Governor Pico from Los Angeles on the day
of its date; Hence the necessity of changing
the venue to that of the highway, when it was
too late to alter or erase the certificate of rec-
ord to suit it. And hence' the absurd contra-
dictions exhibited in the testimony of Moreno,
who appears to be emulating the example of
hisprsaecessor.

The Judgment of the diitriet eourt is, therefore,
affirmed, with eoets.

Aff'g— Hoirm. L. Cas., 216.

Cited-65 U. 8. (24 How.), 861 : 67 U. 8. (2 Black),
863 ; 68 U. 8. a Wall.), 745 ; McAlL, 484.

THE UNITED STATES, Appt,

f>.

CLAUDE CHANA, WM. MARTIN, THOS.

P. TURNER AJSTD ALBERT ROWE.

(See 8. a, 24 How^ ISl, 182.)

Mexican land claim r^ected.

Where the teBtlmony to sustain a Mexican claim
Is similar to that offered in the cases of United
States V. Nye, 62 U. 8., and The United States v.
Rose, 64 U.8., in which cases it was determined that
the testimony was not sufficient to support the
claims, the claim rejected.

Submitted Dee. 17. 1860. Decided Jan. 7. 1861^

APPEAL from the District Court of the United
States for the Northern District of Cali-
fornia.

This case arose upon a petition filed before the
board of Land Commissioners, in Califomia, by
Claude Chana, and sup{>lemental petitions filed
by the other appellees, before said board for
the confirmation to them of a claim to certain
lands in Califomia.

The Board of Land Commissioners entered a
decree confirming the claim. The district court,
on appeal, affirmed this decree; whereupon the
United States took an appeal to this court.

A further statement of the case appears in
the opinion of the court.

Mr. J* BIaek» Attv-Gkn., for appellants:

This daim is based entirely upon Sutter's

611

147-168

SUPBBICB Ck)X7BT OF THS UHITBD StATBI.

Dec. TxB3f,

general title, and like all of its dass it is, of
course, worthless.
Mr, Crittenden, for appell(

Mr, JtuUce Campbell delivered the opinion
of the court:

The appellees presented their claim, before
the Boanl of Commissioners for the settlement
of Land Claims in Callfomia,f or a tract of land
consisting of four leagues, on the south side
of Bear Creek, in Tuba County, under a grant
to Theodore Sicard hj Micheltorena, Gtovemor
of the Department or California.

The testimony to sustain the claim is similar
to that offered in the cases of United SUUes y.
Nye, 21 How., 408, and United States y. Rose,
28 How., 262. In these cases it was determined
that the testimony was not sufficient to support
the claims. This case must follow the same
course that was assumed in those.

Judgment of the district court retened, and
petition dismissed.

ANGELINA R. EBERLY and PEYTON

LTTLE, by his Next Friend, A. B. Ebkblt,
IHffs. in Br.,

LEWIS MOORE Aim CHARLES RAYBON.

(8ee 8. C 24 How., 147-158 J

Plea to jurisdietion, wAat suffldent-^falte aver-
ment of jurisdiction.

The district court may permit the withdrawal of
pleas In bar for the purpose of pleading to the Jurls-
dictlou.

Where an attempt was made, aooordlntf to the
affidavit on which the motion was founded, to con-
fer upon the district court, by a false and fradulent
ayerment, a Jurisdiction to which it was not entitled
under the Constitution, this was a ffross contempt
of court.

A plea in abatement is not a nullity, if, although
not precise or formal, it denies the averment of
oitisenshlp of plaintUTs, as they affirmed it to be.

Argued Dec. 17, 1860. Decided Jan. 7. 1S61.

IN ERROR to the Distnct Court of the United
States for the Western District of Texas.

The history of the case and a sufficient state-
ment of the facts appear in the opinion of the
court.

Mr. W« G« Hale, for the plaintiffs in error:

1. The district court was not authorized to
permit the defendants, Moore and Raybon, to
withdraw their answers and to file pleas to the
jurisdiction. It will be observed that suit was
commenced Nov. 4, 1855 ; that service was made
on these defendants, on Sept. 27 and Oct. 1^,
1856 ; that on Nov. 25, 1856, and some days after
pleas to the Jurisdiction had been made by other
defendants, Moore and Raybon voluntarily
filed their answers containing the general issue
and pleas in bar; that an order for a survey was
made at the same term, and that it was not until
June 8, 1857, at a new term, that they thought
proper to swear that thev had been deceived
by a false allegation in the plaintiff's petition,
and had since ascertained its incorrectness.

Ordinary questions of amendment are in-

Note.— PleodiiHT to the merUs^waiveapUainabate-'
ment. See note to Sheppard v. Graves, 66 U. 3. (U
How.), SOo,

trusted to the discretion of the inferior courts
and are not revisable here; but in a case of this
character, the courts of law have no discretioo.
The 82d section of the Act of 1789 (1 Stat at
L., 91), applies in its first clause to the cor-
rection of formal defects or errors by a refer-
ence to other parts of the record, and in its last
and more general clause, to an amendment of
** any defect in the process or pleadings." It
is obvious that this statute grants only the power
of correcting an error occurring in the body of
a pleading, and is not to be understood as au-
thorizing the canceUation or withdrawal of the
pleading itself. In the latter case there would
be *' no defect " to be supplied, as there would
be nothing left in which to supply it The
power, then, to allow the witharawal of an
entire plea and the substitution of another,
must be derived, if at all, from the ooomKNi
law or the general and necessary authority of
a court in ardinatianem Utis, But this gooersl
authority cannot extend to the case of amend-
ments, because then there would have been no
need of the enabling statutes. And at oommoc
law the courts had at first no power of admit-
ting the amendments after the term.

Bac. Abr., Amendment, A; Blaekmore^scsai^
6 Co., 157; Com. Dig., Prerogative. D, 85:
Nelson v. Barker, 8 McLean, 879.

Afterwards their power was considered to
continue as long as the cause was " in paper.*

Tidd, Pr., 97; Bondfidd v. MQner, 2 Burr..
1099.

The expression "in paper '* appears to be ex-
press! v applied to the condition of a cause be-
fore the impaneling of a Jury; but the decisions
are conflicting as to the power of if^ianting
amendments in a material point, except to cor-
rect a variance, after issue is taken. It Is dear
that an omission cannot, in the English courts,
be supplied afterHhat time.

Bye V. Bower, Carr. & M., 262; John v. Our-
rie, 6 Carr. & P., 618; Brashier v. Jaekaon. 6
Mees. & W., 549; Webb v. J9tS. Moody & M..
258.

There is no precedent for the withdrawal of
a plea in bar, to admit either a demurrer or s
plea in abatement. On the contrary, it is well
settled that a plea, introduced by amendment
must be to the merits of the case.

Law V. Law. Str., 960: Perkine ▼. Burbank.
2 Mass., 78; Baton v. Whittaker, 6 Pick.. 465;
Beaehv. FuUonBank, 8 Wend., 578. 676; WapUt
V. McGee, 2 Harr., 444; see. also. D'Woif v.
Babaud, 1 Pet, 476; Ripley y. TPorrvn, 8PSck.,
592, 594-596; Palmer v. Boertson, 2 Cow., 417;
Bngle v. Nelson, 1 Pa., 442.

Judicial discretion can only be exercised
where neither part^r has a legal right When
rights begin, discretion ends, and any decision
b^mes the subject of appellate revision. In
the present case the defendants in error, by
pleading in bar at a former term, liad admitted
the jurisdiction of the court and waived any
objection t o it.

Co. Litt,808; Com. Dig., Abatement D, 9.
5; MostynY. Falnigas, Cowp., 161; Bailey v.
Doeier, 6 How., 23. 80; Sheppard v. Oraees. 14
How., 505, 509; Whyte v. Qibbee, 61 U. & (80
How.). 541; Martin v. Commonw., 1 Masa. 347;
Ripley v. Warren, 2 Pick., 592, 594; Cofin r.
Jones,bVick.,6l;LudlaufY. Simond,%CaLCm„\;
Wood Y.Mann, 1 Sumn., 578; Hinckley v. SmiA.

1860.

Ebsblt t. Moobs.

147-158

4 Watte, 488; Chamberlin v. BUe, 6 Watte, 878.

And it is 80 expressly decided in Texas.

Hart. Dig., 688, 691; I>rake ▼. Brand&r, 8
Tex., 851; Cook ▼. 8outhwiek, 9 Tex., 615;
Ryan y. Jackson, 11 Tex., 891, 400; WiUan v.
^domt, 15Tex.,828.

This waiver on the part of the defen.dante
inures to the plaintifEs, and when acted on by
them in the further prosecution of the suit,
gives them a riffht to insist on it as conclusive.
Ihnegal, 6 Madd. , 875 ; Smith v. Elder, 8 Johns. ,

Iveaany. Harris, 7 Yes., 254; Chichester y,
113.

Cases are not wanting, also, in which the
power of a court to permit a plea to the Juris-
diction, after such a constructive admission,
has been expressly denied.

Martin v. GcnnmontD., 1 Mass., 858; Anony-
nwus, 8Cai.. 102.

So permission to plead in abatement will be
refused, after imparlance, though the prayer
for imparlance was by mistake or through ig-
norance

2 Roi. 244; Com. Dig., Abatement, D, 9. 2.

The subject is elaborately discussed in Wood
T. Mann, 1 Sumn., 578. And the principle is
substantially affirmed by the Supreme Court of
Texas, in CoUs v. Perry, 7 Tex., 109, 14.

II. The district court should have directed
a judgment by default to have been entered
against the defendants, Moore and Raybon, on
the application of the plaintiffs. The answer
having been voluntarily withdrawn, these dc-
fendante stood without a plea, for the plaintiffs
had a right to regard the plea to the Jurisdic»
tion as a nullity; first, as beins filed too late
after an appearance; and second, on account of
ite intrinsic defecte and irregularities.

1. As to the first cause there can be no ques-
tion that, if a plea in abatement be filed too
late, the plaintiff may sign Judgment treating
it as a nullity.

Tidd, Pr., 468; Brandtm v. P^yne, 1 T. R,
689: Doughty Y. LaseeUes, 4 T. R., 520; Lock-
hart V. Mackreih, 5 T. R., 661, 668; Blackmore
V. Flemyng, note, 7 T. R., 447; and so in the
Texas practice, Tayhr v. Hall, 20 Tex., 215.

2. As to the second cause; if the plea in ques-
tion was defective in some necessai^ formaiitv.
or incomplete in substance, the plaintiffs could
equally consider it as a nullity. The general
rules of construction are unfavorable to such
pleas; they cannot be amended; the greatest
precision is required and the least slip, fatal.
Thus, if a plea to the Jurisdiction is made by
attorney (Com. Dig., Abatement, D, t, a, 2; 2
Saund., 809. b; Teasdale v. The Rambler, Bee,
9) ; if it is filed without an affidavit to ite truth
(2 Saund., 210, note; Richards v. 8etree, 8 Price,
197; Lot)ell v. Walker, 9 Mees. & W., 299; Bapp
V. MHott, 2 DalL, 184; Richmond v. TaUmadge,
16 Johns., 807); or if it be no plea at all, but a
mere pretense nqt applicable to the action, the
plaintiff msy take Judgment.

Mr, W. I*. Ballin^er, for the defendante
in error:

1. There is no final judgment to which a writ
of error can be prosecuted, and this court has
notjurisdiction of the ease.

U. 8. V. Qira/uU, 11 How., 22.

2. The court below had the ri^ht to permit
the answer to the merite to be withdrawn and
abandoned, and a plea to the jurisdiction filed,

fiee 24 How.

and this court will not revise the discretion
which was exercised.

The general rule requiring a plea to the Juris-
diction to precede a plea to the merite, or other-
wise waiving the former, is, of course, familiar.

2 Sumn., 585; 1 Phil., 898; 14 How.. 509.

But the question is whether, if the party once
pleads to the merite, he forever f orf eite all right
to ask, and the court itself lose all power to per-
mit, upon any ground whatever, such plea to
be withdrawn, and an issue presented to the
jurisdiction of the court. If courte could not,
m case of accident or necessity, with a view to
reach the truth, give relief or indulgence on
making the other party indemnity for the de-
lay, our rules would l)e worse than any princi-
ples of law in common cases, which are often
relieved against in eouity, and sometimes at law,
in the event of accident and mistake.

See WaUace v. Clark, 8 Wood. & M., 859, a
case standing on very analogous ground.

The Constitution of the UnitS States pro-
vides that "the Judicial power shall extend to
all cases in law and equity, arising," &c. By
"cases in law " was meant suite in which le^
righte are to be determined in contradistinction
to righte cognizable in equity or admiralty.

Parsons Y. Bedford, 8 Pet., 44; BenneU v.
Butterteorth, 11 How., 669.

There is no common law of the United Stetes
regulating principles of pleading and practice
at Jaw; or upon any other svihjeci (Wheaton v.
Peters, 8 Pet., 658); nor do the laws of a State
have any effect proprio vigore,

9 Pet., 829; 2 Curt. C. C, 94.

The Supreme Court of the United States has
the power to prescribe rules of pleading and
practice in suite at common law for the district
and circuit courts (Act Aug. 23, 1842, sec. 6; 5
Stat., 517); but it is a power which has never
been exerdsed. The District Court in Texas
has also the power to regulate ite practice " as
shall be fit and necessary for the advancement of
justice," &c. (Act March 2, 1798, sec. 7, 1 Stat.,
836), and in the entire want of all other rules,
it adopted ite own rules of pleading and prac-
tice, conforming them to the practice of the state
courte so far as consistent with the laws of Con-
gress and the distinctive organization of a court
of law. One of the few provisions of Act of
Congress, touching the pleadings in the courte
of the United States, is that those courte may
at anv time permit either of the parties to amend
any defect in the process or pleadings, upon such
conditions as the said courte respectively sh^,
in their discretion and by their rule, prescribe.

82d sec. Judiciary Act, 1789, 1 State., 91.

By the law governing the state practice, " the
pleadings in all suite may be amended under
the direction of the court, upon such terms as it
may prescribe, at any time before the parties
announce themselves ready for trial, and not
thereafter." O. & W. Dig., art. 484.

These express provisions of law intrust the
amplest discretion to allow amendmente of
'*the pleadings," and the laroest measure of
such discretion and control eSao resulte from
the organization of the court. The exercise of
that discretion cannot, upon well settled princi-
ples, be revised by this court. In Marine Ins,
Co, V. Hodoson, 6 Cranch, 206, the defendant
having filed six special pleas, was refused leave
to file two others.

618

864-876

SiTFBSlCB Oowr 09 THB tJlTlXBD StATKS.

Bbo. Tsut

The allowance or disallowance of amend-
ments is not matter for which a writ of error
lies

Chirac v. BeitUcker, 11 Wheat. 280; and see
Waldenv. Oo^, 9 Wheat. 678; Wright y. HoU-
ingmorih, 1 Pet, 167; U. 8, v. Bufard, 8 Pet.,
81; Glapp v. Baleh, 8 Me., 219; Morgan v.
D^er, 10 Johns.. 168; Norihum v. KeUogg, 15
Conn., 074; Tobejf y. Claflm, 8 Sumn., 880;
CaUoway y. Dobson, 1 Brock. 119.

The precise question of permitting a plea to
the jurisdiction after genend answer to the mer-
its, was decided by Judge Story in Dodge v.
Perkins, 4 Mason, 485.

" In this case, I should feel it my duty to giye
the defendant a rieht to withdraw his answer
and put in a plea, i? the posture hereafter should
render that course desirable to me.

P. 487; and see 1 Sumn., 579; see, also, Bid-
die y. Stevens, 2 Sere. & R. , 544.

Almost all pleas In abatement to courts of
general jurisdiction are merely dilatory and tech-
nical ; and therefore haye been regarded with
diefayoi, and tried by the most stringent rules.
But the jurisdiction of the federal courts being
limited by the Constitution, dependent in this
class of cases on the citizenship of the parties
in the different States; inyolying, to say no
more, greatly increased expense and inconyen-
ience to the defendant — a jurisdiction created
only to reserye rights to citizens of other States,
more important than the admitted injury to de-
fendants, it is a question of substance of the
greatest importance to the indiyidual defendant,
and of delicacy and solicitude to the court.

Cook, 482.

There can be no fair ground on which the
federal court should regard pleas to their juris-
diction, made in good faith, with disfayor. 8
Wood. &M.,860.

On the contrary, they should ^ard them-
selyes, in a substantial and effectiye and eyen
jealous manner, against fraudulent attempts to
impose upon their jurisdiction; and to retain,
or, more properly, to imply and assume juris-
diction upon harsh, illiberal, merely technical
grounds, is not in accordance with the Consti-
tution or spirit of the federal judiciary.

8 Sumn., 880; 2Pet., 829; 60 U. S. (20 How.),
525.

Mr. Justice Campbell deliyered the opin-
ion of the court:

The plaintiffs, as citizens of Kentucky, com-
mencea a suit by petition against the defend-
ants, as citizens of Texas, for the recovery of
a parcel of land in their possession. At the re-
turn of the process the defendants pleaded to
the petition the general issue, and the Statute of
Limitations, in bar of the suit.

At the next succeeding term they moyed the
court, upon an affidavit charging that the alle-
gation in the petition, " that the plaintiffs were
citizens of Kentucky, was untrue, and fraudu-
lently made to induce the court to tfUse cogni-
zance of the cause," and that they were citizens
of Texas, for leave to withdraw their pleas, and
to plead this matter in abatement of the suit.
This motion was allowed, and pleas in abate-
ment were filed. One of these avers that the
allegation of citizenship in said pltdntiffs' peti-
tion is not true; that said plaintiffs are not citi-
zens of Kentucky, but are respectively citizens

614

of Texas; wherefore he prays the diamissal of
the cause for want of jurisdiction. The plamt-
iffs, thereupon, moved the court for judgment
for the want of a plea. This motion was not
allowed, and thereupon the plaintiffs refused
to reply to the pleas in abatement, and the court
then proceeded to impanel a jury, and directed
them to ascertain whether, from the proof be-
fore them, the plaintiffs, or either of them, were
citizens of the States of Kentucky or Texas at
the date of the writ The 'jury returned as
their verdict, that the domicU or resideace of
the plaintiffs never had been changed from the
State of Texas, and that their domicil or resi-
dence was in the State of Texas at the com-
mencement of this suit The court dismisBed
their petition.

The plaintiffs object to the authority of the
district court to permit the withdrawal of plesfi
in bar, for the purpose of pleading to the juris-
diction; that a plea in bar admits the jurisdic-
tion of the court, and the capacity of the plaint-
iffs to sue, and that they cannot be deprived
of the benefit of that admission. The equita-
ble jurisdiction of the courts of the United Sutes
as courts of law is chiefly exercised in the amend-
ment of pleadings and proceedings in the court,
and in the supervision of all the yarions steps
in a*cause. so that the rules and practice of the
court shall be so administered and enforoed as
to prevent hardship and injustice, and that the
merits of the cause may be fairly tried. Such
a jurisdiction is essential to and is inherent in
the organization of courts of justice. Bartheio-
nmo v. Carter, 8 M. & G., 125.

But this jurisdiction has been conferred upon
the courts of the United States in a plenary form
by Acts of Congress. 1 Stat, at L., p. 88, sec
17; p. 885, sec. 7; p. 91, sec. 82.

It has been uniformly held in this court that
a circuit court could not be controUed in the
exercise of the discretion thus conceded to it.
Spencer v. Lapsley, 20 How., 264. In the pres-
ent instance the jurisdiction was properly exer-
cised. An attempt was made, according to the
affidavit on which the motion was founded, to
confer upon the district court, by a falae and
fraudulent averment, a jurisdiction to which it
was not entitled imder the Constitution. If
true, this was a gross contempt of the court, for
which all persons connected with it might have
been subject to its penal jurisdiction.

The plaintiffs contend that the plea is a nul-
lity, and that they were entitled to sign judg-
ment. It is not a precise, distinct, or a formal
plea, but it denies the truth of the averment of
the citizenship of the plaintiffs, as they had af-
firmed it to be in the petition. We may say as
Lord Denman said, in Horner y. KeppeL, 10 Ad.
& E., 17: "Where a plea is clearly frivoloas
on the face of it, that is a good ground for set-
ting it aside; but the plea here & not quite bad
enough to warrant that remedy.

JwLgment affirmed,

Clted^ Blss., 126.

HENRY AMEY, P^, in Br,,

THE MAYOR, ALDERMEN AND CIT-
IZENS OF ALLEGHENY CITY.

(See 8. 0^ M HoWn 86i4iaj

MV.fiL

1860.

Aionr T. Allmhsnt Cm.

864-87d

Oertifleats$ ofindabtedneu^or bondStOfeity not null
and void became in exeeee of charier limit of in-
debledneu — irreguUmtiee inieeuecfmunidpiU
eeeurtUee^ no defense against bona fide holders.

OertiflOBtes of loan, with oertiflcates for interest
attached, are called bonds, with coupons for Inter-
est; but neither the instrument or coupon has any
of the le^al characteristics of a bond, eilber with or
without a penalty, though both are written ac-
knowledgments for the payment of a debt.

Where an Act of the State Legrlslature author-
ized a city to subscribe to the capital stock of a
Bailroad Company to be paid for b.v the corporate
credit of the city by the issue of '* certificates of
loan,** and the Bailroad Company toolc. from the
city, certificates of loan in pajrment of the sub-
Boriptions, and sold them, and with the money
built the road, such contemporaneous action by all
the parties Interested, proves that the authority
Riven to the city to make the subscriptions to the
Bailroad Company, had been carried out just as it
was meant to have been.

The several Acts of the Assembly of Pennsylvania
stated in the case, conferred authority on the cor-
poration of the City of Allegheny to issue certifi-
cates of loan, otherwise bonds with coupons, as
iras done,to pay for its subscriptions to the capital
stock of the Ohio and Pennsylvania Bailroad Com-
pany.

The bonds or certificates of loan which were is-
sued are not null and void, because the debt of
the city had reached a limit mentioned in its char-
ter prior to the second subscription, nor because
the ordinance of the city direotinff the issue for the
payment of the second subscripuon had not been
recorded within thirty days.

Wh^n they are in the hands of honafid^ trans-
ferees, it would be inequitable, if the city could
repudiate them at all, and more especially, if that
weiiB allowed to be done upon the grround of any
fault in the Corporation in their issue.

They are not null and void for any irregularity
connected with that is8ue,by the City of Allegheny.

Submitted Bee. IB, 1860. Decided Jan. 7, 1861.

ON A certificate of division in opinion be-
tween the Jud|2;e8.of the Circuit Court of
the United States for the Western District of
Pennsylvania.

The history of the case and a statement of
the facts appear in the opinion of the court.

Mr. J. Knox, for the plaintiff:

The Legislature i|«elf had power, under the
Constitution of Pennsylvania, to grant the pow-
er to issue these bonds to the Citv of Allegheny.

See Oebrieke v. PUtrimrgh, 7 Am. Law Heg.,
726; SharplessY. Mayor of PhUadelphia, 21 Pa.,
147; CommontDecUih y. Oommiss. of Allegheny
Go., 82 Pa.. 218; CommonweaUh y. Pittsburgh,
Pittsburgh Leg. Jour.. No. 35, page, 277.

The Acts of the Assembly in question con-
ferred authority on the Corporation of Alle-
§heny to issue Sonds with coupons, as has been
one.

The Act of 5th of April, 1849, in its second
section, authorizes the Cities of Pittsburgh
and Allegheny to subscribe to the capital stock
$200,000, or in other words to promise in writ-
ing to ps^ $200,000 at a future day for so much
stock. The power to subscribe is a power to
contract a debt. Such is the literal meaning
of the term. If is a term different in its signii-

Note.— Jurisdiction of U. 5. Swpreme Cowri to
declare iftate law void, as in eonfliet with state eonsti-
tutUm: to revise decrees of state eourts,a8 to construc-
tion of state laws ; power of state courts to construe
their tnon stalvtes. See note to. Jackson ▼. Lamphire,
28 U. 8. (3 Pet.), 280.

it is for state courts to construe their own statutes.
Supreme Court loiU not review their deelsUms. eaceept
when sveeiaUy authorized thereto by staifuie. See
note to Commercial B'k ▼. Buckingham. 48 U. 8. (6
How.), 817.

ttee 24 How.

ication from to purchase or to buy. Such also
is the legal signification of the term.

OommonweaUh ▼. MWHHams, 11 Pa., 62.

The power to subscribe carries with it the
power to contract a debt, and to perform the
usual and necessary acts to provide monev to
pay the debt, or to give an evidence of debt.
A bond is only an evidence of debt under seal,
and is the usual mode of giving evidence of a
debt by a corporation.

See Garr v. Le Fevre, 27 Pa., 414; Me Masters
V. Beeds, 1 Grant, Cas., 86; Eamiltonv. Pitts-
burgh, Pittsburgh Leg. Jour., No. 85, p. 274,
276; March 12, 1860.

Allegheny City has solemnly asserted in the
bonds that they were issued in pursuance of an
Act of the Legislature, passed April 5, 1849.
The rules of law and equity require that she
shall be held to the interpretation placed upon
this Act by herself. The Ist and 2d sections
of the Act are to be construed together. The
first speaks of "a certificate" alone; and while
there is no affirmative delegation of power in
this section, unless the 2a section contains
this delegation of power, the Ist section is ut-
terly meaningless. "Certificates" alone and
bonds have the same signification. The e viden t
purpose of this Act was to enable the City of
Allegheny to contribute by the use of her credit
to the making of this road, and the onlv way
in which this purpose could be effected was,
by enabling her to make a form of security
that was usual for corporations to give in mak-
ing the subscriptions, and which would pass
in the market and bring the best price.

See Wilkinson v. Leland, 2 Pet., 661; The
Bhnaywxd, Caroline, 9 Wheat., 888.

The Legislature of Pennsylvania by a sub-
sec^uent Act, May 8, 1850, recognized the sub-
scription as a debt.

See U. 8. v. Freeman, 8 How., 656.

The remarks made in regard to the above
Act apply also to the Act of 1852, under which
the second issue of bonds was made.

There are two irregularities named by the
counsel for the defendants.

1. The debt of the City of Allegheny had
reached the limit of $500,000 prior to the sec-
ond subscription.

2. That if otherwise valid, the ordinance au-
thorizing the second subscription became null
and voia, by reason of not being recorded with-
in 80 days.

The alle^tion that the Act limiting the debt
of the city mvalidates the second subscription
and the bonds, authorized under an Act passed
subsequently to the Act of limitation, is but a
mode of asserting that a subsequent Legisla-
ture cannot repeal the Act of a former one.

The second objection can avail the defendant
nothing.

1. She cannot take advantage of her own
wrong.

2. Bhe alleged in the bonds that they were
issued in pursuance of the resolution of 19th
June, 1852. Of course it was thereby implied
that it was a valid resolution.

3. The charter was merely directory on this
point.

See 7 Casey. 517.

4. The bonds were signed by the Mayor and
Treasurer, and the seal was properly attached.

They were properly delivered to the Railroad

615

8«4-dt6

SuPBEm COUBT OF THB UmTBD {^ATM.

Dbc. Tnoc,

Compaoy. and having been acknowledged by
tJie City Corporation for 8 or 10 years, me can-
not now repudiate them, because one of her
officers neglected his duty.
Mr, A* W« Loomist for the defendants:
The certificate of division of opinion in the

S resent case limits and restricts discussion and
ecision to the propositions therein enumerated.

See 8 How., 611; 7 How., 694; 5 How., 208;
9 Pet.. 267; 12 Pet., 289; 6 How., 41.

These propositions are:

First. Whether the several Acts of Assembly
mentioned in the case stated, conferred any
authority on the corporation of the City of Al-
legheny to give bonds with coupons, as stated
in the cause.

Second. Whether such coupons are null and
void by reason of such want of authority.

Third. Whether they are null and void for
any other irregularity connected with their
issue.

These propositions embrace the whole case
open for discussion here.

The Act giving the Corporation authority to
subscribe to the stock of the Railroad Company,
did not empower the Corporation to issue bonclB.

Wilcock, Corp., 86; Kirk v. JNamU, 1 T. R..
124; Ang. & Ames, Corp., sees. 886, 848; Beafy
y. KmnSUr, 4 Pet., 168; People v. Utiea Ins.
Co,, 15 Johns., 888; 2 Cow., 664, 675, 678;
8 Wend., 485, 574; 6 Pick., 82; 2 Cranch,
127; 4 Wheat., 686.

The fact that the debt of the City of Alle-
gheny had reached the limit of $500,000 prior to
the second subscription, rendered the subscrip-
tion void.

If otherwise valid, the ordinance authorizing
the issuance of the bonds for the second sub-
scription became null and void, by reason of not
being recorded within 80 days.

See Act of May 8, 1850, sec. 4; sec. 8 of
Charter of the City.

Mr. Justice Wayne delivered the opinion of
the court:

This case has been sent to this court on a cer
tiflcate of division of opinion between the
Judges of the Circuit Court for the Western
District of Pennsylvania.

The plaintiff has sued the ma^^or and alder-
men and citizens of Allegheny City, in actions
of debt, upon several coupons of bonds which
were issued by that Corporation,and made pay-
able to the Ohio and Pennsylvania Railroad
Company, in payment for two subscriptions, of
$200,000 each, to the stock of the latter.

It was agreed by the parties upon the trial of
the cause, to submit it for the opinion of the
court upon a statement, in the nature of a spe-
cial verdict, and that verdicts upon the coupons
should be entered accordingly.

The judges, however, in tneir consideration
of the case, differed in opinion on the follow-
ing points: "Whether the several Acts of As-
sembler recited in the case stated conferred any
authority on the Corporation of the City of Al-
legheny to issue bonds with coupons, as had
been done, or whether the same are altogether
null and void, by reason of such want of au-
thority, or for any other irregularity connected
with their issue."

It is admitted that the bonds were issued and
delivered in payment for subscriptions of stock

616

to the Ohio and Pennsylvania Railroad Compa-
ny; that they were made payable to Ibat Com-
pany or its order; that the Company bad nego-
tiated them to raise funds to construct the road,
and that the road had been completed in con-
formity with the conditions of the subacripCkKis
of the defendants.

The parties agree that the subecriptiona had
been made by the authority of Acts of the Leg-
islature of the State of Pennsylvania, in con-
f oimity with the charter of the Railroad Com-
pany, and were intended to be in pamumoe of
resolutions and ordinances of the select and
common coundls of the City of AU^heny.

The mayor was first instructed to sabscribe
for four thousand shares of the capital stock of
the Ohio and Pennsylvania Railroad CcKDpany,
to be paid for in bonds, with coupons attached
for interest, payable semi-annually, the bonds
havinff twenty-five years to run. The railroad
agreed to pay the interest upon the bonds until
the completion of the road, or so much of it as
may be adequate to pay the interest, and tiiat
the proceeds of Uie bonds were to be applied to
the construction of the road from the City of
Allegheny to the mouUi of the Bis Beaver Riv-
er, about twenty-five miles. And to secure the
city and the bondholders, it was stipulated, in
addition to the le^pl obligations incarred in
making the subscription, mat the stock, with
the interest, earnings and dividends of the road.
should be pledged to pay the interest, and final-
ly to redeem the bonds. Accordingly two hiin-
ared bonds of $1,000 were prepared, and were
delivered to the Railroad l>>mpany,on the Ist of
January, 1850, and the city at the same time re-
ceived a certificate of four thousand shares.
The coupons now sued upon were a part of
those which were attached to those bonos.

The second subscription was made in virtoe
of another Act of the Assembly of Pennsylya-
nia, and in compliance with a resolution of the
city, dated June 19th, 1852. That Act author-
ized the city to increase its subscription to tlie
capital stock of the Railroad Company, to any
amount not exceeding its first subscription, up-
on the laws and conditions which had been pre-
scribed for the first; but it restrained the city
from making an issue of bonds of a less denom-
ination than $100. The Act also exempts the
stock from the payment of any tax in conse-
quence of the payment of any interest to stoi^-
holders, until the net earnings of the Company
shall realize six per cent, per annum <mi the
capital stock. The city authorities psseed an
ordinance for this additional subscription, bat
it was not published in compliance with the
charter of the city, nor was it recorded in tlie
manner which it is said the charter requires the
city ordinances to be. For those n^lects, it is
said tbe ordinance was null and void, and that
the cit^ had not the power to make the second
subscription under the Act of the L^§;iBlature.
But the city bonds were issued, andthe sub-
scription was made. It is also objected tliat the
ordinance was indorsed upon the bonds, with-
out any proviso requiring the Railroad Company
to pay the interest upon them according to its
stipulation. But it is admitted that the road
was built first from the city to the Big Beaver
River, and afterwards completed to its tenains-
tion on the western border of Oliio, and tbcsioe
to Chicago. '

64 U.S.

1860

AxsT ▼. Allbohbnt Citt.

864r^70

The city continues to hold its stock in the
Railroad Company. It has received five divi-
dends from the Company— one of $14,000, an-
other of $16,000, another of $12,000— which
were retained by the Company by the consent
of the dty, and had been appropriated to the
payment of the coupons for mterest; and that
$4,000 of those dividends had been paid in cash,
and others in stock. Prior to the city's second
subscription, it appears that the debt of the
city had become $600,000, the limit prescribed
by an Act of the Legislature. That Act is,
" that it should not be lawful for the councils
of the city, either directly or indirectly, by
bonds or certificates of loan of indebtedness, or
by virtue of any contract, or bv any means or
device whatsoever, to increase its indebtedness
to a sum which, added to the existing debt,
shall exceed $500,000, exclusive ^f the sub-
scription of $200,000 to the Ohio and Pennsyl-
vania Railroad Company.*'

It is admitted, also, that the stock of the dtv
in the Railroad Company had been voted at iJl
elections of it by order of the city, except in a
single instance, when the city refused to vote.
The city was incorporated on the 11th of April,
1840, with all the powers and authorities then
vested by law in the select and common coun-
cils of the City of Philadelphia.

We have given the agreed case of the parties,
in every particular, in any way bearing upon the
points about which the judges in the court be-
low Were divided in opinion, and will now con-
sider them.

The subscriptions of the defendants were made
under the Acts of the 5th April, 1849, and that
of the 14th April. 1859. The first permitted a
subcription of $200,000. to be paid for by '* cer-
tificates of loan." The second permitted the in-
crease of it, to an amount not exceeding the
first, without, however, having altered the man-
ner in which the corporate credit of the citv was
to be used for the payment of the secona sub-
scription. We infer from the words of the Act,
and do not see how it can be otherwise, that it
was to be paid for by the same certificates of in-
debtedness which the Legislature had directed
to be issued and used for the payment of Uie first
subscription. The Act is, " that the City of
Allegheny is hereby authorized to increase its
subscription to the capital stock of the said Ohio
and Pennsylvania Railroad Company to any
amount not exceeding the subscription hereto-
fore made by the said city, upon the terms and
conditions prescribed in regard to said previous
subscription ; provided no TOnd for the payment
of the subscription shall be issued of a less de-
nomination than one hundred dollars." This
proviso is merely an inhibition upon the city to
use for the payment of the subscription any cer-
tificate of indebtedness less than $100; and the
words " no bond for the payment of the sub-
scription shall be issued," when considered iCi
connection with the act of authorizing the sec-
ond subscription, that it should be made *' upon
the same terms and conditions of the first, "can-
not be interpreted into a permission or direction
of the Legislature, that the city might use in
payment lor the stock any other legal or com-
mercial instrument than '' certificates of loan."
tiuch certificates are well and distinctly known
and recognized in the usages and busmess of lend-
ing and borrowing money, in the transactions

boe 84 How.

of oonunerce, also, and for raising money upon
the contract in them for industrial enterprises
and internal improvements. They were form-
erly more generally known than otherwise as
" certificates of loan," with certificates for in-
terest attached, payable to the bearer at partic-
ular times within the vear, at some particular
place, beinff a part of the contract, from which
they must be cut off to be presented for pay-
ment. But now, in their use, they are called
bonds, with coupons for interest — a coupon
bond^oupon beine the interest payable sep-
arable from the certificate of loan, for the pur-
pose of receiving it. But neither the instrument
nor coupon has any of the legal characteristics
of a bond, either with or without a penalty,
though both are written acknowledgments for
the payment of a debt.

Such certificates of loan have been resorted
to for TDAUj years in the United States to raise
money for internal improvements. They were
as well known and used in Pennsylvania as
elsewhere, and were permitted to be issued in
that State, by just such enactments as those
which authorized the City of Allegheny to sub-
scribe to the capital stock of the Omo and Penn-
sylvania Railroad Company. Such an issue was
applicable to the sub]ec^matter of legislation.
The city solicited the State to be allowed to
make the subscriptions. It was the policy of the
State to grant the application. The subscriptions
were rxMe under the Act of the 5th ADril,1849,
and that of the 14th April, 1859. The' first per-
mits a subscription of $200,000. which was to
be paid for by certificates of loan. The Act of
the 14th April, 1859, allowed the increase of
the subscription to an amount not exceeding the
first, upon the same terms and conditions. It
was the understanding of the Legislature, of the
city,and of the Railroad Company.that the sub-
scriptions were to be paid for by the corporate
creoit of the city by the issue of " certifli^ates of
loan." That appears from the Act of 1849,
authorizing it, before the subscription was, in
fact. made. That act provides, in anticipation bf
its being done, that the certificates of loan which
shall hereafter be issued by the City of Alle-
gheny in pavment of any subscription to the
Ohio and Pennsylvania Railroad Company,
were to be exempt from all taxation, except for
State purposes. The Railroad Company took
from the city certificates of loan in payment of
the subscriptions sold them as such, and with
the money built the road. Such a concurrence
of contemporaneous action by all the parties in-
terested in the subject-matter of legislation,
proves that it was the intention of the Legisla-
ture that the authority eiven to the city to make
the subscriptions to the Railroad Company,
had been carried out just as it was meant to have
been.

We answer, therefore, that the several Acts of
Assembly staled in the agreed case did confer
authority on the Corporation of the City of Alle-
gheny to issue certificates of loan, otherwise
bonds with coupons, as was done, to pay for its
first and second subscriptions to the capital stock
of the Ohio and Pennsylvania Railroad Com-
pany.

We will now inquire whether the bonds or
certificates of loan which were issued are null
and void **for any irregularity connected with
their iuue."

617

864-876

SUFBBKB Ck>in» OV TBB UHITmD BtATM.

Dsa Tbkk

It is said there were two irregularities wliich
made them so. The first is, that the debt of the
city had reached its limit of $500,000 prior to
the second subscription. The second is, that the
city ordinance, authoriasing the issue for the pay-
ment of the subscriptions, was null and void,
from not having been published in conformity
with the charter of the city.

The first objection depends upon the proper
construction of the Act of 8th May, 1860, sec-
tion 4, in connection with the Act of the 14th
April, 1862, which authorized the second sub-
scription. The first- declares jthat the indebted-
ness of the city should not be made to exceed
•600,000. exclusiye of the subscription of $200,-
000 to the Railroad Company; and it is urged,
that the Act of 14th April, 1862, though it au-
thorizes the city to make a second subscription
of $200,000 does not permit the city to increase
its debt to a larger sum than $700,000, to which
it was limited by the first Act of 1860. The ob-
jection has arisen from a misconception of the
4th section of the Act of 1860. It provides that
it shall not be lawful for the councils of the City
of Allegheny, either directly or indirectly, or by
bonds, certificates, or loans, or of indebtedness,
or by virtue of any contract, or by any other
means or device whatsoever, to increase the in-
debtedness of the said city, in a sura which ad-
ded to the existing debt, shaU, taken together,
exceed $600,000, exclusive of the subscription
of $200,000 to the Pennsylvania Railroad Com-
pany; meaning, obviously, that no increase of
debt should be made by the councils beyond
the sum of $600,000, but not intendhig that the
Legislature might not authorize an increase of
it l^yond that amount, as it had previously done
by authorizing the first subscription to the Rail-
road Company. The same political power which
allowed the first subscription could, at a succed-
ing session ot the Legislature, give authority to
the city to make a second. 8uch authority was
given by the Act of the 14th April, 1862. The
city councils could not, under its charter, have
made either the first or second subscription with-
out authority from the L^^lature, but by its
charter it could contract debts for the purposes
of its incorporation to a larger amount than
$600,000. When, then, the Legislature was
called upon to authorize the city to make the
first subscription, increasing its indebtedness
$200,000 beyond what the city might have
owed then for other purposes, it was thought
prudent, as well for the protection of the dti-
zens of Allegheny as for those who might pur-
chase these certificates of stock with coupons,
to declare that the councils of the city diould
not thereafter, by virtue of their charter au-
thority, to contract debts, by any device wha^
ever, increase its amount to more tlum $600,000.
And as it has turned out, judging from the
attitude of the mayor, aldermen and citizens
of Allegheny in this suit, it must be admitted
to have been upon the part of the Legislature
of Pennsylvania a very commendable precau-
tionarjr act of legislation.

Having thus disposed of the first irres:ularity
imputed to the councils of Allegheny, in mak-
ing their issue for the payment of the second
subscription, we proceed to the second.

It is, that the ordinance of the city directing
the issue for the payment of the second sulh
scription hlui not been recorded within thirty

61$

days. It is admitted in the stated case thst it
had not been.

By the 8th section of the charter of the Citj
of Allegheny, it is provided, that in order that
a knowledge of the laws, ordinances, regnh-
tions and constitutions of the city, antbonzed
by the 7th section of the charter, may at all
tunes he had and obtained, and the pubUca-
tions thereof at all times be known and ascer-
tained, such and so many of them as shall not
be published in one or more of the public
newspapers published in the dty, or in such
other way as tiie select and common coundb
may direct, within fifteen days after these lam
severally passed, &c., &c., and also recorded in
the office for the recording of deeds, Ac.^ Ac,
Ac., within thirty days after these laws passed.
Ac., Ac., shall be null and void.

Now, it #loes not require a very careful ex-
amination* of the section to determine that it
can have no bearing upon the ordinance direct-
ing the issue for the payment of the second
subscription of the city to the Ohio and Penn-
sylvania Railroad Company, for, in terms, it t§
only applicable to ordinances, &c., authorized
by the 7th section of the charter, and that did
not permit such a subscription to be made, scd
paid for by the city stock, as the ordinance
for that purpose was intended. It could ooij
be made Dv the authority of the Legislature, In
other words, the Legislature enlarges the pow-
ers of the councils of Allegheny, to do what it
could not do by charter. Besides, if the sec-
tion was not limited to such ordinances^ &c.,
Ac., as are authorized by the 7th section of the
charter, and those words were not in it, it ooaM
have no application to an ordidance of the dtj
passed for a special purpose to cany out an
act of the Legislature, outside of the charter
as was the case here. We have determined that
the Acts -of the Legislature have been carried
out by the city in the way they should bsft
been done. Neither the ordinance, nor the
stock issued by the city, are deficient in anj
substantial particular. The latter has eveiy
formality of the Corporation to rive them car-
rency. They were circulated for ton yean,
and were constantly acknowledged by the city.
as its bonds, for the purposes lor which thej
were issued. They are now in the hands of
bona flde transferees, to whom they must be
paid according to their terms. It would be m-
eouitable, if uie city could repudiate them at
all, and more especially, if that were allowed
to be done upon the ground of any fault in the
Corporation in their issue. But we will not en-
large further upon the case. The points of ob-
lection of which we have treated have alresdj
been before this court in several cases, and
they are worthy of perusal. See the cases of
The Oammimonert of Knox Co., Indiana, r.
WaOaee, 21 How., 646, ZabriMe v. CfeM., Orf-
and Cin. R, B. Cb., 28 How., 881.

We have not, in our treatment of this certi-
fied division of opinion, discussed that position
of the learned counsel who srgued it for the de-
fendant, that the Acts of the Legislature of
Pennsylvania, authorizing the issue of the cer-
tificates of loan were unconstitutional.

Agreeing with him in the main, as to the
fomraations upon which the correctness of
legislation should be tested, and the objedi
for which it ought to be approved, wecaBBOi»

ideo.

DaT1L4 ▼. MuiOPOBl).

214-224

with the respect which we have for the judi-
ciary of his State, discuss the imputed unconsti-
tutionality of the Acts upon which the sub-
scriptions were made to the Ohio and Pennsyl-
vania Railroad Company ; it having been
repeatedly decided by the judses of the courts
of Pennsylvania, including its Supreme Court,
that Acts for the same purposes, as those are
which we have been considering, were consti-
tutional.

We shall order it to be certified, that the is*
sue of bonds with coupons, in the case stated,
are not null and void, but that it was done un-
der the authority of constitutional Acts of the
State of Pennsylvania, in the case stated; and
further, that they are not null and void for any
irregularity connected with that issue by the
City of Allegheny.

Order.

This cause came on to be heard on the tran-
script of the record from the Circuit Court of the
United States for the Western District of Penn-
sylvania, and on the point or question upon
which the judges of the said circuit court were
opposed in opinion, and Which was certified
to this court for its opinion, agreeably to the
Act of Congress in such case made and pro-
vided, and was argiied by counsel ; on con-
sideration whereof, it is the opinion of this
court, that the issue of bonds with coupons, in
the case stated, are not null and void, but that
it was done under Uie authority of constitu-
tional Acts of the State of Pennsylvania, in the
case stated; and further, that they are not null
and void for any irregularity connected with
that issue by the City of Allegheny.

Whereupon it i$ now here ordered and ad-
judged thai it be $0 eerdfled to the taid eireuit
court.

Cited-ge U. S., 387 ; 12 Am. Bep., 489 (7 Kan.,'
479).

MIGUEL DAVILA, Plff, in Br.,

DAVID* MUMFORD Am JESSE MUM-
FORD.
(See 8. C 84 How., 214-»4.)

Texae Act of lAmitatione-^^onttruetive notice—
commi88ioner*8 authority.

Gonstruotfon of Act of Limitations of Texas
which provides ** that every suit to be instituted to
recover real estate shiUi be lofltltuted within three
years next after the cause of action shall have ac-
crued, and not afterwards.*'

That the elder title was on record, was not con-
structive or actual notice of the elder title.

Defense held complete under that statute of three
years' limitation.

An objection that the commissioner had no au-
thority to act ; held, cured by the Act of the Re-
public of Texas in 1841.

Argued Dec. 19, 1860. Decided Jan. U, 1861.

IN ERROR to the District Court of the United
States for the Western District of Texas.
This case arose upon a petition filed in the
court below, by the plaintiff in error, to recover
the possession of eleven leagues of land in the
SUte of Texas.

By agreement of parties, David and Jeaae
See 84 How.

Mumford were permitted to sever from the
other defendants in their defense and trial. The
trial as to them resulted in a verdict and judg-
ment in their favor; whereupon the plaintiff
sued out this writ of error.

A further statement of the case appears in the
opinion of the court.

Mr, W. O. Hale, for the plaintiffs in error:

In the present case, we are to seek for a con-
struction of the terms, title or color of title, as
used in the 15th section of the Act of Limita-
tions of Feb. 6, 1841, and to define the extent
to which such title or color of title is to be sub-
ject to the requirement of '* intrinsic fairness
and honesty." The Supreme Court of Texas
has said that by ' ' title or color of title " is meant
a consecutive 'chain of transfer from the sov-
ereignty by written conveyance.

(&aroY. 1F«n6a«A,18Tex.,181; WiUiameon
V. Bimpeon, 16 Tex., 444.

But no case has arisen in which the manner
of the expression *' intrinsic fairness and hon-
esty," has been called in question. We are left,
therefore, on this point, to the literal signifi-
cation of these words, or to the principles of
those systems of law from which Texas de-
rived the basis of her legislation. It is unneces-
sary to say that, in their literal sense,* intrinsic
fairness and honesty " is not consistent with an
adverse claim to land known to belong to an-
other, while it is perfectly consistent with a
possession held under an ignorance of the bet-
ter title. The Roman law required good faith
at the time of the acquisition of the colorable
title, and aJso at the commencement of the poe-
session.

God. VII., 88, Const. 1. 2, 6, 6, 10; Dig.
XLI., 4, Fr. 7. sec. 4: XLI., 48, Fr. 16, sec. 3;
Inst., U., 6, Fr.

And the good faith thus made necessary con-
sisted in a reasonable belief that the true title
was in the possessor, and in ignorance of the
title of the sole owner.

D. XVUL,1, Fr. 27;L. 16, Fr. 109;XLVIII.,
15. Fr. 8.

No one, it is said, can prescribe, who, at anv
part of the time, has a knowledge that he is
holding the property of another.

Dec. Oreg., II., 26, cap. 6, 17, 20.

This more extended application of the rule
was adopted by the Spanish Jurisprudence, de-
parting m that respect from the literal sense of
the laws, which seem only to require good faith
at the commencement of the possession.

Part. III., 89. 12: Nov. Rec.. XI., 8, 2; Greg.
Lopez, gtoee. ubi. eiL eovarr. op. omn., 487, No.
4; Esriche, diee. wr. Preeeripeion; see, also.
Cast, yil., cap. 26, No 8, No. 80.

The doctrine is sucdntly stated in the treatise
of Mago. Bellena, Inst. U., 89.

See, also, Troplong, Prescription, arts. 914,
981.

This was the state of the law when the Re-
public of Texas obtained its political existence,
and it continued to be the rule of construction
until the adoption of the Common Law as a
system in 1840. The 89th section of the Act of
Dec. 20, 1886 (Hart, Dig., 2876), was merelv a
partial innovation, and is to be construed in
reference to the still existing rule.

Hart. Dig., 2896.

The intrmluction of the common law by the
Act of Jan. 20, 18^0, did not introduce the

619

dl4-d24

SUFBXIIB Ck>UBT Of TRB UjliVEU STATHfl.

Dbc. Tbsm,

English statotes, and the former law, as to pre-
scription, remained unchanged up to the pasuge
of the Act of Feb. 5, 1841.

Gautier y. FkxtnkUn, 1 Tex.. 746.

This Act, thuB passed under the combined in-
fluence of the common and the dvil law, as co-
existing systems, derived its provisions in some
measure from both; and while the 14th section
is a rude attempt to adopt the doctrine of dis-
seisin, the 16th and 16th sections follow dis-
tinctions known only to the Spanish Jurispru-
dence, and to the legislation of our Western
States. Title or color of title— the titulo ju9to
and Colorado of the Spanish jurists — are not re-
quired in the English law to work disseisin, nor
do they confer a right to a shorter period of
prescription. They only extend the effect of the
actual disseisin to the boundaries claimed by
the deed under which the entry is made, and no
reference is had, therefore, to the derivation of
the title or the mode of its acquisition. But in
the peculiar land law of the Western States,
whidi contributed most to the settlement of
Texas, a possession held under a connected title
was sometimes made to confer greater privi-
leges, and to be sufficient for prescription in a
shorter term.

So in Tennessee, Act of 1707, ch. 48; in
Louisiana, Code Civ., arts. 8446, 8414, 8416;
Illinois, Act of 1889, "to quiet possessions, etc."

Under this new rule of limitation, it was no
longer indifferent to inquire into the cliaracter
of the title pf the possessor, or the mode by which
he obtained it. For both the character and the
mode qualified the possession. The courts of
Tennessee, Louisiana and Illinois, while this
rule continued in force, have therefore held that
the occupant, claiming the benefit of the short
period of limitation, must show that he had held
with a just confidence in his title and an honest
belief in its superiority.

WitBon V. Ailcannon, 4 Hayw., 186; Hamp-
ton V. McQinnia, 1 Tenn., 291; PoUotCb Les-
see V. Eaeton, 1 Wheat., 476; see, also. Qregg v.
Sayre, 8 Pet., 264, and Andrew v. Mu(ford, 1
Hayw., N. C, 820.

The Supreme Court of Louisiana has often
said, in accordance indeed with the direct pro-
visions of the Civil Code, that a title acouired
in bad faith or with a knowledge of a better
title, will not sustain prescription.

BeetM V. Towles, 10 La., 288-286; DevaU v.
Choppin, 16 La., 678; 8andoBV, Oary, 11 Rob.,
681 ; Hughey v. Barrow, 4 La. Ann., 262.

And upon this point a reference may be made
to the nice distinctions of the French jurists.

Tropl., Prescription, arts. 918-988; 21 Du-
ranton. No. 886; Merlin, Repertoire, tit. Pre-
scription, 1* 6, 4; and compare Code Nap., art.
650.

In none of the Western States, however, ex-
cept in Louisiana and Illinois, is there any
expression in the Statutes of Limitation whidti
seems to indicate that good faith is neoessaiy
in the shorter periods of possession, and the
courts of the other States have, therefore, been
compelled to decline to introduce by construc-
tion an exemption not contained in the law.
The difference in this respect of the Act of
Limitation of Texas, gives a greater weight to
our position, since it snows an intention to re-
quire an additional requisite in the definition of
'* color of title/' and to look for a rale rath«r

to the principles of the civil than the commoo
law.

This view is, if not confirmed, at least rap-
ported by the intimations derived from the
course of judicial decision in Texas.

CharU V. 8aff<nd, 18 Tex., 94. 112; Manh
V. Weir, 21 Tex., 97; see, also, Wright v. MoA-
tieon, 69 U. S. (18 How.), 66: Smiih ▼. Ffnoer,
28 Tex., 29.

It is useless, therefore, to advert to the de-
cisions of the courts of the common law States
which have given other attributes to a colorabte
title, or to the cases which have been decided
in tills court, upon the common law theories of
adverse possession and disseisin. The Act of
Limitations of Texas is based upon a diffemt
view, and requires the application of other in-
a]ofl;1e8.

The evidence in this case justifies the in-
structions requested by the plaintiffs. The titles
set up by the defendaints were obtained in 1835.
under the same government which sranted tlie
land to the plaintiff in 1838. The defendanu.
being bound to know the previous appropri-
ation of the land by reference to the public
archives, are charml with actual knowled^
of it.

Byrne v. Fitgan, 16 Tex., 898.

In addition to this, the defendants must hav«
known that their own titles were defective.

The defense made under the 16th aection of
the Act of Limitations was neoessarilv based
upon a possession held under deeds duly r^is-
t^ed.

Hart Dig., 2892.

And the question arose on the trial, whether
the tesHmomoe given in evidence by the defend
ants as the original of their title, were dolj
registered. The district court overruled the
ejection of the plaintiffs to the regtstratioiu
and refused to instruct the jury that these in-
straments were not duly registered.

Upon this branch of the case the counsel cited :

Hart Dig. , arts. 2762, 2776, 2791 ; Deen v.
WiOe, 21 Tex., 646; Graddoek v. MerriU, i
Tex., 496; Bdwarda v. James, 7 Tex., 873;
Butler V. Dunagan, 19 Tex., 669; Secrest ▼.
Jones, 21 Tex., 122.

Mr. N. P. Bailiiii^r» for defendants in
error:

The general character of the limitation laws
of Texas is readily apparent. The periods for
suits are short for motives of policy, addressiog
themselves strongly to the law making power.

Horton v. Crawford, 10 Tex., 882.

The precise construction of the terms of the
16th section of the Act in question is not sus-
ceptible of doubt. It limits the time for bring-
ing suit against those in possession under title
or color of title. It defines title to mean "a
regular chain of transfer from or under the sov-
ereignty of the soil." That completes the defi-
nition. The remainder of the section is ex-
planatory of color of title. The title, then, must
be " regular." Does this mean that it shall be
paramount and, therefore, perfect? That the
oest title from the government requires three
years' possession to defend it? This is simply
absurd. Thejimitation was intended solely lo
protect the junior title; but not the junior title
without noUce or the means of noiioe of the
senior title, because such cases are venr rare and
exceptional, only happeniDg from the irr^-

1860.

DaTILA ▼. MUMFOBD.

dX4-224

larities attending tome of the early colonial
records; and it is well settled in Texas that the
Junior title, without notice of the senior title,
actual or constructive, from its being foand in
the (General Land Office, or recorded or mapped
in the county, is the best title and entitled to
recover in ejectment.

Quitbeau v. MayB, 15 Tex., 410; Byrne v.
FoQan, 10 Tex. , 891 ; WtZftm v. WUUama, dO
Tex., 54.

To ascertain what is meant by ' ' color of title,"
Mr. Hale refers to the civil law; but the Act
itself is its complete expositor. Our Supremo
Court say, ''the statute having defined the
meaning of the terms employed, we are not at
liberty in construing this section to resort to
other sources for their definition and meaning."

21 Tex., 109.

It is a direct arraignment of title from the
government, not strictly *' regular," one which
purports to transfer the right, but does not in
a perfect and formal manner. A patent would
be title. That did not need to be expressed.
But the statute, in application to it, explains
color of title as from the government. The lo-
cation of aheadright certificate, land warrant or
scrip, is declared color of title. It leaves the
fee in the government, but is a character of
right to maintain ejectment (sec 1, same Act
Lim., Hart. Dig., 8280), and is a vested right
of property.

BouMrd V. Ptrry, 7 Tex., 266; RamOton v.
Awry, 20 Tex., 685.

So if the meine conveyances are not " regu-
lar." which is at once illustrated: "as If" not
registered or only in writing, without a seal (18
Tex., 181), '*or such like defect," Ac. The
plain intent being to embrace any instrument
purporting and intended to be a conveyance,
and equitably conveying the riffht of the grant-
or, although defective in strict law. A bond is
not color of title, because it does not purport
to be a transfer.

18 Tex., 128.

*' Color of title" had its fixed signification in
the statutes of Texas with reference to the
character of the conveyance, ex fade, and not
to its operation from extrinsic causes, or to any
good faith in its holder. The 87th section (Act
Organizing Inferior Courts, &c., Deo. 20, 1886)
provides tbat any person who owns or claims
land of any description by deed, lien or anv
other color of title,shall have the same recorded,
&c. The 88th section specifies the proof to
be made in order to record '*all titles, liens,
mortgages, or other color of titles.

Hart. D.. 2754. 2755.

The 89 section is the first Limitation Law of
Texas.

The only decision that I call to mind upon
this Act of Limitation, is Jonsi v. Menard, 1
Tex., 171, in which a possession of five years
after record of the Junior grant was held a bar.
It is true there is no discussion of t^e point
whether the Junior grant is color of title, for
the simple reason that no one thought to doubt
'it. In Manh v. Weir, 21 Tex., 97, the con-
struction of the 15th section. Act 1841. is dis-
cussed. In Smilh V. Pmoer, 28 Tex. , 88, the mat-
ter is settled with the utmost precision. The
Ghirf Justice says: " To constitute such title
or color of title, there must be a chain of trans-
fer from or under the sovereignty of the soiL"

See 24 How.

This necessarily presupposes a grant from the
ffovemment, as the basis of such transfer. And
the grant must be effectual to convey to the
grantee whatever right or title the government
had in the land at the time of making the grant.
It need not necessarily carry with it the para-
mount title; but it must be title as against the
government, valid in itself when tested by it-
self and not tried by the title of others. It must
have intrinsic validity as between the parties to •
it, though it may be relatively void as respects
the rights of tM^ persons."

The case of 8eoU v. Bhea, 6 Tex. , 258, again
before the court, 21 Tex., 708, shows clearly
that want of notice of Uio prior title is not an
element of '* title or color of title" under the
statute. ^

And to same effect, see Wheder v . Moody, 9
Tex., 872; Hortony. Orawford, 10 Tex., 882;
Caetro v. Wurtbach, 18 Tex., 128; Mason v.
McLattghUn, 16 Tex., 24; WiltiamsonY. Smp-
son. 16 Tex. 444.

The case' of Christy v. Afford, 58 U. 8. (17
How.), 601, shows that such a construction was
unheard of then in the court below and in this
court. There has never been a plea of three
years' limitation in Texas, which did not in-
volve this question. Should it not be consid-
ered settled that it has never even been mooted ?

The grants being *' title or color of title," to
sustain the plea of three years' possession,
the ruling of the court that they were also
"deeds ouiy registered," to sustain a posses-
sion of five years under the 16th section of the
Act of Limitations, is wholly fanmaterial. If an
error, it was one committed against the defend-
ants, the possible effect of which was that it
might have misled the Jury totneir prejudice,
but could not have injured the plaintiff.

See 5 Pet., 185; 6 How., 228; 18 How,, 288;
8 Watts A 8., 891; 8 Sm. <Sk M., 447; 16 Pet.,
455; 8 Tex., 280.

The grants to the defendants were duly
registered more than five years before suit
brought.

Mr. Justiee Nelson delivered the opinion
of the court:

This is a writ of error to the District Court
of the United States for the Western District of
Texas.

The suit was brought against the defendants
and others te recover the possession of eleven
square leagues of land, situate in what was for-
merly known as the County of Milam, on the
right bank of the River San Andres, otherwise
called Little River, where Buffalo Creek and
Donaho's Creek enter said river, with specified
boundaries.

The plaintiff gave in evidence a grant from
the government of Coahuila and Texas, with-
in the limits of the colony of the empresarios,
Austin and Williams, dated 18th October, 1888,
and rested.

The defendants gave in evidence grants from
the same government of a league each, situate
within the boundaries of the eleven leagues,
the one to David Mumford, dated 20th March,
1885, the other to Jesse Mumford, dated 25th
February, the same year; the former went into
possession in the spring of 1844, and continued
m the possession and cultivation of the tract
down to the time of trial ; the latter took posses-

621

dl4-2d4

BUFBXIIB OOUBT OF THB UHITID StAT3M.

Dbo. Tnx,

sion in the year 1850, and continued the culti-
yation and improyement down to the trial.

The defense rdied on is the Statute of Limit-
ations.

The court char^ped that the plaintiff and de-
fendants both claimed under titles emanating
from the sovereignty of the soil ; that the plaint-
iff's was the elder m point of date, and must
be regarded as paramount, > unless the defend-
ants were protected by the Statute of Limita-
tions set up in defense. That if the jury be-
lieved from the evidence the defendants had
held actual adverse and peaceable possession,
in their own right, for more than three years
next before the commencement of the suit, un-
der color of title, and that the plaintiff's cause
of action accrued more th%n three years prior
to the suit, the jury should find for the defend-
ants.

The court further charged, that if the jury
believed from the evidence that the defendants
had held actual adverse and peaceable posses-
sion in their own right, cultivaUng, using, and
enjoying the lands, and paying taxes thereon,
and clamiing under a deed or deeds duly re-
corded, for more than Ave years next before
the commencement of the suit, they should
find for the defendants.

The 15th section of the Act of Limitations of
Texas, provides "that every suit to be instituted
to recover real estate as against hfan. her, or them,
in possession, under title or color of title, shall
be instituted within three years next after ^e
cause of action shall have accrued, and not after-
wards;*' and provides that, *' by the term ' title,'
as used in this section, is meant a regular chain
of transfer from or under the sovereignty of
the soil; and color of title is constituted by a
consecutive chain of such transfers down to
him, her, or them, in possession, without be-
ing regular, as if one or more of the memo-
rials or muniments be not registered, or not
duly roistered, or be only in writing, or such
like deroct as may not extend to or include the
want of intrinsic fairness and honesty."

The principal ground taken against the op-
eration and effect of the three years' limitation
in the present cause is, that the elder title be-
ing on record, the defendants had constructive
notice of the same at the time of the grants to
them, and hence that the title is subject to the
charge of the " want of intrinsic fairness and
honesty " within the meaning of the statute,
which it is claimed removes the bar of three
years' adverse possession.

It is admitted that this clause of the statute
has not yet received a construction by the courts
of Texas, and there is certainly some difficulty
in ascertaining the precise meanine intended
bv the Legislature from the phraseoiosy used.
The better opinion, we think, is, that ue want
of intrinsic fairness and honesty, in the connec-
tion in which the words are found, relates to
some infirmity in the muniments of title, or de-
duction of title, of the defendant, indicating a
want of good faith in obtaining it.

The statute, in defining what is intended by
possession, " under title, and color of title," in
order to operate as a bar within the three years,
declares, that by the term " title" '*is meant a
regular chain of transfer from or under the
sovereignty of the soil," which, as is apparent,
is the case before us, the title of the aefend-

6«S

ante beine directly from the government; and
"color of title " is declared to be '* a oonsera-
tive chain of such transfer down to him, her,
or them, in possession, without being iwilar,
as if one or more of the memorials or muni-
ments be not registered, or not duly reelstered,
or be only in writing, or such like ctefect as
may not extend to or include the want of in-
trinsic fairness and honesty;" clearly referring,
as we think again, to the muniments of the
title, and defects therein.

To refer these words to a constructive or
actual notice of an elder title would, in the
practical effect of the limitation, be a virtutl
repeal of the stetute, especially in all cases in
which the elder title is of record.

A Statute of Limitations is founded upon
the idea of an elder and better title outstanding,
and prescribes a period of possession and cut-
tivation of the land, under the lunior or infe-
rior title, as a bar to the elder, for the repose
of society ; thereby settling the title by lapse of
time, and prevenung liti^tion.

As it respects the five years' limitation, the
objection is, that the grants were not duly reg-
istered, and hence the posssession not within
the 16th section of the act. The grant to
David Mumf ord was registered on the Slat JuIt,
1888, and that to Jesse on the 4th October of
the same year.

It is insisted, however, that the r^iistries
were a nullity, on the ground that the execu-
tion of the grants had not been properly proved
or acknowteged, in order to be admitted of
record.

In the case of the grant to David, the Re-
corder certifies that the deed was presented to
him, proven, and duly recorded m his office
the day above mentioned; and in that of Jesee,
that the deed was proved for record by J. E
Chance, who made oath that he was familisr
with the handwriting of the commissioiier, W.
H. Steele, and also of the assisting witnesses,
and that he believed the several signatures to
begenuine.

There is some difficulty in determining, from
the various decisions of the courts of Texas
upon the Registry Act of 1886, whether or not
the certificates of proof of the grants in the
present case were sufficient to admit them to
reg|istry at the time they were filed for reoonL
It is claimed for the defendants that the re-
cording of the grants was confirmed by the
Act of 1889, which provides that " oopMS of
all deeds, &c., when the originals remain in
the public archives, and were executed in ocni-
formity with the laws existing at their dates,
duly certified by the proper officers, shall be
admitted to record in the county where such
land lies." This Act relates to the oolonists'
titles delivered to the grantee, the originals re-
maining as public archives. The deras in the
present case are copies of tho oririnals remain-
ing in the archives, and are certified l^ Steele,
the commissioner, that they agree with the or-
iginal titles which exist in tte archives* from
which they are taken for the parties interested,
the day of their date, in the form provided by
the law. In addition to this certificate, the
copies, which it seems are executed by the com-
missioner, and are second origiiuJs, were
proved before the Recorder at the time tber
were admitted to registry. But be this ss it

6( U.&

1860.

Pbascb v. Paqs.

23&-288

may, we are not diepoeed to look very critically
into the question of the registry, uough we
cannot say the court was in error in respect to
it, inasmuch as the defense was complete under
the Statute of three years' Limitation,as already
explained.

An oblection has been taken that the grants
of the defendants are a nullitj, upon the
ground that Steele, the commissioner, had no
authority to act in that capacity in the colony
of Nashville, or Robertson, at their date. But
this defect was cured by the act of the Repub-
lic of Texas in 1841, as has been repeatedly
held by the courts of Texas. 2 Tex., 1, 87; 9
Tex., 348. 872; 28 Tex., 118, 284; 22 Tex., 161;
21 Tex., 722; 20 How., 270.

ThejudgmerU of the cowri below, t^fflrmed.

CHRISTOPHER G. PEARCE kt al.. Incor-
porated and Acting under the Name of The
NuaBbWobkb, AppU.,

JESSE W. PAOE ST AL., Claimants of the
Steamboat Doctob Robbbtbon.

(See S. C. ii How.. 288-233.)
OoUiiian — ruies applieal>le to,

OolllsloD between a flat boat and a steamboat. The
flat boat was heavily laden In a somewhat rapid cur-
rent, and the only means of remoYln^ it out of the
direction of the steamboat, was by working the end
oars across the current.

When a floating boat follows the course of the
current, a steamer must Judge of its course, so as
to avoid it This may be done by a proper exercise
of skill, which the steamer is bound to use. This Is
the established rule of navigation.

The steamer hald in fault in not avoiding the flat

IXMtt.

Argued Dec, 20, 1860, Decided Jan. 16, 1861.

APPEAL from the Circuit Ctourt of the United
States for the District of Eentuckv.

The libel in this case was filed in the district
Court of the United Sutes for the District of
Xentuckj, by the appellants, to recover dam-
ages resulting from a collision.

The district court entered a decree dismissing
the libel, with costs.

The circuit court, on appeal, having afiBrmed
this decree, the libelants took an appial to this
court.

A further statement of the case appears in the
opinion of the court.

Mr, T. D. Lincoln, for appellants:

The very statement of the admitted facts of
the case shows clearly that there is fault some-
where; gross fault. It was not in the night.
The boats had not come into view of each other
on a sudden, as though they were emerging
from a fog. or were coming around a short
point : nor was there any want of power in those
on the steamer to avoid the collision. They had
their steam on, and all the oflScers of the steam-

Nora.— Ooaiaion ; right of stecmi and aaUing vessela
^vUh reference to each other ^ and in passing and meet'
'ina. Bee note to St. John v. Paine, 61 U. 8. (10 How.),
£67.

RtUes for awAding— steamer meeting tfteamer. See
note to Williamson v. Barrett, M U. 8. (18 How.),
301.

See ^4 How.

er were at thdr posts. It was a clear day, they
had a clear view, and a river suflBlcientiy wide
and deep for aX\ practical purposes of naviga-
tion. The presumption of carelessness, want
of foresight, and skill somewhere, is. therefore,
verv strong.

The question whether there be such negli-
gence or want of foresight, and where the same
nes, under those principles and rules applicable
to such cases, is a matter of proof to some ex-
tent, and to some eitent a matter of law.

The first point which I desire to make is, that
the presumption of negligence is too strong to
be rebutted by any " uncertain evidence," such
as is usual in cases of this kind.

The second point is, that this presumption,
both in law and in fact, is against the steamer;
and that it requires '* clear proof " on her part
to rebut such presumption and show that the
collision was Uie result of accident merely, or
the result of fault on the part of the flat boat
alone. The following cases are in point and
tend to establish this second position.

Freto v. BiUl, 12 How., 471, 472; St. John v.
Paine, 10 How., 682; The If. T, ifc Jav. U, 8,
Mail SUamehM Co, v. BuvihaU, 62 U. S. (21
How.), 885 ; The Oregon v. Boeca, 68 U. S. (18
How.), 672; OtMerUon v. 8hav>, 69 U. S. (18
How.). 687; Ths Qenetee OhUf v. FUdvugh, 12
How., 461; NowUm v. Skbbine, 10 How., 686;
Pars. Marit. L., 201-202 and n. 8.

The third point is, that there is no such evi-
dence. On the contrary, the evidence clearly
shows that the steamer was in fault, had ample
means of avoiding this loss, and might have
done it without the exercise of any xmusual skill
or foresight.

Those on the flat boat relied upon the well
settled rule, and expected the steamer to stop.
If they misjudged in this respect, the steamer
was in greater lault in placing herself there,
and in bringing about the emergency, and must
bear the consequence.

N, T, db Liv. U, 8, MaU Steamiehip Co. v.
RvmbaU, 62 U. 8. (21 How.), 884; The Bhode
Idand. 1 Blatchf.. 864.

But I insist that as Capt. Douglass pursued
the usual course, it was not fault in a legal sense
on his part, even if he did misjudge; that he
relied upon the rule of the river, was not, under
the circumstances, a fault which oueht to pre-
vent the libelants from recovering fulTdamages.

Mere error in judgment is not always regarded
as a fault. There are many cases where a plaint-
iff had committed an error in judgment, which
entered somewhat into the disiuter, but has still
recovered his full damages.

Beeves Y, The Ganetitutwn, Gilp.. 687; Chf^
Un V. Hatoee, 14 Eng. G. L., 446; Bridge y. The
Grand June. Bailw. Co., 8 Mees. & W., 244;
WaUere v. I^eU, 22 Eng. C.L., 644; IngaUs v.
Bilk, 9 Met., 1.

In such cases, the whole blame is put upon
the party committing the first fault, and whose
duty it was to guard against any such emer-
gency.

ja. r. d> Liv. U. 8. MaU SteamMp Co. v.
BumbaU, 62 U. S. (21 How.), 886; Frets y, BuU,
12 How.), 471.472.

MesiTS. P. PhilUpa and A. O. P. Niehol-
SOB* for appellees:

The ar^ment for the appellees was confined
to the evidence.

628

22^288

SUPRBXB COUBT OF THB TJvrTED STATBt.

Dbc. Tbkx,

Mr. Jtutiee McLeaA deUvered the opinion
of the court:

This is a libel filed by Christopher G. Pearce
eteU., incorporated and acting under the name
of ' • Niles Works, " and by virtue of the Statute
of the State of Ohio, passed May 1, 1852. enti-
tled ''An Act to provide for the creation and
regulation of incorporated companies, in the
State of Ohio," against the steamboat Doctor
Robertson, her tackle, apparel, engine and fur-
niture, and all persons intervening for their in-
terest in the same, in a cause of collision, civil
and maritime.

The libelants were the owners of a large
amount of iron ca9tiiigs, made for and intended
as sugar- mill macbhiery, which was at the time
of the said collision in a flat boat, well manned
and equipped.and which was being navigated on
the Ohio River, and in the usual mode of navi-
gating such craft, and near the Illinois shore,
and along the side of the Cincinnati tow head,
about twenty-five feet therefrom, and had
crossed over from the Kentucky side, and was
at the time in full view of the Doctor Robert-
son and her pilot.

The libel states that on the 8th day of August,
1856, at about 8 o'clock in the forenoon of
that day, and while the said flat boat was being
navigated as aforesaid, the said steamboat,
Doctor Robertson, approached her, coming up
the river, and having a lighter in tow, with full
speed; and although the flat boat was in full
view of her pilot, and there was ample room
for the said steamboat to pass to the left of
and between her and the Cincinnati bar, which
lay between the flat boat and the Illinois shore,
yet the said steamboat endeavored to run be-
tween the said flat boat and the said tow head,
and ran herself and the stfid lighter, with great
force, directly into and upon the said flat boat,
and broke in the sides thereof, and caused the
flat boat immediately to sink in about twenty
feet of water, and so injured it as to render it
entirely useless.

It happens in this case, as in all other cases
of collision, that the witnesses on the respective
boats are somewhat contradictory in their state-
ments. It is admitted, that in ascending the
Ohio River, some fifty or sixty miles below Cin-
cinnati, the steambc^t Doctor Robertson, a
stem-wheel boat, of fifty tons burden, in pass-
ing up the river, near the place called the Cin-
cinnati tow head, while running close to the
Kentucky shore, being from one to two miles
below, in full view of the defendants' flat boat,
which was freighted with sugar-mills and oth-
er machinery, for the Western trade; and that
the flat boat, being put in the course of the cur-
rent, floated down the river, her stern and front
oars not in use, but laid on the boat, without
any effort by the hands of the flat boat, con-
tinued to float with the current, until it came
into collision with the ascending steamboat.
That this boat, to avoid a snag that projected
some distance into the river,changed her course,
by which means she came into collision with
the flat boat, which was immediately sunk in
water near fifteen feet deep.

There seems to have been little or no effort
made to avoid this collision by those who had
the command of the flat boat. There were two
other flat boats lashed together, which followed
the flrst boat at a distance of some two or tlu«e

624

hundred yards: and they, perceiving that acd-
lision was likely to occur, used their oars, so as
to avoid the ascending steamboat. Under this
state of facts, the question of fault arises.

The defendants' flat boat was ninety-six feet

in length, and some feet in breaalh, with

an oar or sweep in the front and rear parts of
the boat, so that some direction might be given
to it. But this movement cannot oe relied on
when the colliding boats are near to each other.
The flat boat was heavily laden, and occupied
near a hundred feet in a somewhat rapid cur-
rent, and the only means of removing it out of
the direction of the steamboat, wasl^ working
the end oars across the current. This could not
be done successfully, unless the boats were so
far apart, as by a diagonal movement to secure
the aid of the current in escaping a collision.

But what is the law of the river on this sub-
ject, in regard*to floating flat boats and steam
vessels? The self-moving power must take the
responsible action. This cannot always be
done, even with a fair wind, by a sailing ves-
sel, as it may suddenly chanise. or be subject to
accident. But steam is, generally, under the
control of the will of the engineer, and he a
responsible for a proper use of it.

Schuyler C. Bitfnet says he was passenger on
the Doctor Robertson, and that five or six miles
below Shawneetown she came in coUisicxi with
a flat boat, loaded with sugar-mill machinery,
at about nine or ten o'clock of a clear morning;
the flat boat had come over the reef, and had
straightened down the river, and was about one
hundred feet from the tow head, the witnoi
sitting half an hour on the boiler deck of the
steamer before the collision, the steamer run-
ning about fifty feet from the Kentucky shore,
on the larboard side; she had a lighter in tow
and when she approached very near the fist
boat she turned out a little from the shore to
avoid a snag just above her, but kept on until
the lighter struck the flat boat; when the bow
of the steamer was some fifty or sixty feet be-
low the tow head, the lighter struck the fist
boat and ran half way over it, wliich caused
the flat boat to sink.

And the witness says, that on the pait of the
flat boatnothinscould have been done,a8 she wu
lying in the best possible position. Since 1881
the witness states, he hsis been boating on tJie
river, and that the general custom has been,
and now is. " for steamboats to give the way
for flat boats to pass."

Alexander Ford has been on the river tea ot
twelve years, and a pilot for three yeara. Tbe
flat boat was lying nearly straight with the tow
head, about one hundred and finy yards, more or
less, above the foot of it, and about twenty-fife
or thirty yards from the Kentucky shore. The
Doctor Robertson aimed to go on the starboard
side of the flat boat, when the barge which the
Robertson had in tow struck the flat boat, and
sunk her. He thinks the Robertson had stopped
her engine, which, if it liad been done is
time, the boats would not have come together.
He says there was plenty of room to pass out-
side of the flat boat. The witness sayB» *' that
he supposed the Robertson could pass on dther
side of the flat boat. The flat boat was not
easily turned out of line. The boats in tf-
preaching each other were in full view a mile
and a half. It is customary for a steamboat to

66 V. &

1860.

RiCHAUDSOK v. OiTT OF BOSTON.

188-11MI»

give wajr to a flat boat. The steamboat takes
either side of the descendiDg flat boat, so as to
avoid it. Ford's boat was from seventy-five to
one hundred and twenty-flve yards aoove the
machinery boat when he perceived that the
steamboat would run into the flat boat."

The witnesses generally concurred in saying,
that the steamboat could have run to the Ken-
tucky shore until the flat boat had passed, or
could have run on the Illinois side of the flat
boat. In the language of John Walker, a wit-
ness, *' the steamboat could have either gone to
the shore or run closer to the shore, or she
might have gone entirely outside of the flat boat;
and he does not think those persons on the flat
boat could have done anything to have prevented
the collision.'' Witness thinks there was one
hundred to one hundred and fifty yards of river
on the IllinoiB side.

Willisim P. Lameth, for the last fifteen years,
lias acted as steamboat captain, and he says,
" It is the usual custom for steamboats to exam-
ine the pofiition of the flat boats, and to take
the best possible course to avmd them,on either
side that seems best. If danger is apprehended,
it is usual to ring a slow bell, and run easy. If
danger be apparent, the boat should land or
stop entirely, an^ let the flat boat pass."

John F. Farrell says, ** it is the duty of a
flat boat to straighten itself in the river, ease its
oars, and pursue the course with the current,
and the steamboat must avoid her." The snag
in the river, Douglass says, was one hundred
feet above the tow of the steamer when the
boats struck. The two other flat boats were,
when the steamer struck the flat boat, one hun-
dred and fifty yards above the colliding boats,
and the witness, Douglaeis, thinks the steam-
boat could have passed, if all the flat boats had
kept their places. The stem of the flat boat
was sixteen feet under water.

Several witnesses called by the steamer seem
to think that the flat boat was bound to avoid
the steamer; but such a rule would be unrea-
sonable, and would increase the risk of naviga-
tion. When a floating boat follows the course
of the current, the steamer must Judge of its
course, so as to avoid it. This may be done by
a proper exercise of skill, which the steamer is
bound to use. Any attempt to give a direction
to the floating mass on the river would be likely
to embarrass Sie steamer,and subject it to greater
hazards. A few strokes of an engine will be suf-
ficient to avoid any float upon the river which
is moved only by the current; and this, I under-
stand, ia the established rule of navigation.

We think the iUamer wu infauUin not avoid-
ing ^uflat bo€U; on le/UisA ground the judgment
of the dreuU court is reversed,

Clted-8 FUppln, 161 ; 46 N. T., 868.

THOMAS RICHARDSON. Ptff. in Eh-.,

THE CITY OF BOSTON.

(See S. C, 24 How., 188-195.)

Indictment, when emdence-~foTmer verdict of
UUle \oeight as evidence, tf founded on errone-
ous instructions.

See 24 How. U. S.. Book 16.

Leoraw v. Boston, 58 IT. S., afBrmed.

Bills of indictment, which constituted part of the
history of the case, and were referred to in the tes-
timony of the plaintf If, are admissible as testimony.

Former verdict and Judgement, though admitted
in evidence, should have little or no weight on the
decision of the case, when it was founded on er-
roneous instructions on the law.

Former decision in this case 00 U. 8.,clearly stated
and explained.

Argued Jan 7, 1861. Decided Jan, £1, 1861,

IN ERROR to the Circuit Court of the United
States for the District of Rhode Island.
The histoiy of the case and a sufficient state-
ment of the facts, appear in the opinion of the
court.

See, also, statement by the counsel for the
defendant in error, and previous reports of the
case there cited.

Messrs, B. R. Curtis* S, Bartlett,
GeoFM E. Badg^er and J. M. Carlislet

for plaintiff in error:

1. The court below erred in allowing the
defendant to give in evidence certain indict-
ments which purport to liave been found against
the defendant in the years 1848 and 1849, for
certain alleged nuisances described in the said
indictments respectively.

2. The court erred in refusing the instruc-
tions prayed by the plaintiff, andln the instruc-
tions given.

(a) There was evidence "tending to show
that the boundary of the highway now called
Summer Street, next to the sea, was and is low
water mark." But the court refused so to in-
struct the jury, and instructed them to the con-
trary.

This is the same evidence upon which this
case was remanded (60 U. S., in b. 16, p. 689),
and additional evidence of like tendency.

A portion of the documentary evidence of-
ferred bv the defendant, it is conceived, had a
like tendency.

{f>) The court erred in the instruction given
with respect to the former verdict and judg-
ment ofiTered in evidence by the plaintiff, m
this, that the said instructioh was upon the
weight and effect of the evidence, which was a
question for the jury exclusively. And there-
fore, though the court might give its opinion
to the jurv, it should have been so guarded as
to leave the jury free in the exercise of their
own judgments." They should have been
"made distinctly to understand that the in
struction was not given as a point of law, by
which they were to be governed, but as a mere
opinion as to the facts, and to which they should
give no more weight than it was entitled to.

Tracy v. Sficartwout, 10 Pet., 96; see, idso,
Oreenleaf v. Birth, 9 Pet., 299; Ches. d 0.
Canal (Jo, v. Knapp, 9 Pet., 667, and particu-
larly Games v. titHes, 14 Pet., 822.

Whereas the court instructed the jury upon
this point in the same form and as absolutely
as upon the matters of law, omitting any dis-
crimination or caution.

Messrs, C. Caahin^ and P. W. Clubad-
ler, for defendant in error:

This action is for the continuance of an alleged
nuisance from Sept. 18. 1860, to April 16, 1&2.

It was originally tried at the June Term,
1868. of the Circuit Court for the District of
Rhode Island.

At that same term the plaintiff obtained the

40 62&

188-195

BUFBlOfB GOUBT OF THB UNITBD tS^LTBh,

Dec. Tbbm,

ludgmeDt alluded to in this case, for the oris-
inaTerection and continuaDce of the same al-
leged nuisance up to Sept. 13» 1850.

Both the declaration in the action on which
that judgment was recovered, and the one in
this case, contained six counts; one for each of
plaintiff's wharves, alleging a rijg;ht of way in
the dock in question, for the plaintiff, bis Berv-
ants and vessels appertaining to his said wharves ;
one for each of said wharves) alleging a pub-
lic dock, slip, or way between them, by which
plaintiff was entitled to a passage from the
channel to his wharves, and vice versa; one for
the reversion of both wharves relying on the
way appurtenant to them, and one (the 6th) for
the* reversion of both wharves, counting on the
public easement ; the injury in all cases l^ingthe
same with averments of special injuir to the
plaintiff, in the counts where the public nui-
sance was counted on. The structure consti-
tuting the alleged nuisance was the same as in
the case of Oity of Boston v. Lecrato^ 5^5 U. S.
(17 How.), 426.

In both cases verdicts were given for the
plaintiff on his 6th count.

The judgement in the first case was satisfied,
the amoxmt being too small for a writ of error,
but in the present case a motion was made for
a new trial, pending which motion this court
decided the case of Leeraw v. The City of Bos-
ton, in which the views of the law upon which
the verdicts and judgment above mentioned had
been obtained were pronounced erroneous.

58 U. 8. (17 Row.), 426.

The motion for a new trfal in the present ac
tion was accordingly decided in the defendant's
favor, and the case came on for trial at the
June Term, 1855.

The plaintiff then filed the 7th count of his
declaration, upon which alone he now relies,
and to which alone the instructions of the court
at the last trial apply.

The count alleges that the loeus in quo was
** a highway, town way, or public wav, to the
sea, sometimes known as the town dock, ex-
tending from the comer of Bummer Street and
Sea Street to the channel," and that the way
aforesaid," was **a public highway or town
way or public way to the sea or low water, duly
laid out and established pursuant to law; and
by reason thereof the plaintiff had, ought to
have had, and still ought to have, free ingress
and egress with boats and vessels of every de-
scription, upon, over and through said way, to
and from the wharves, so by him possessed as
aforesaid, from and to the channel of the sea.

At the trial in 1855, the court below, think-
ing itself bound by the judgment of this court
in Leeraw's case, and seeing no substantial dif-
ference between the two, Instructed the jury
that there was not sufiScient evidence in the case
to authorize a verdict for the plaintiff.

Biehardson v. Boston, 60 U. 8. (19 How.),268.

The jur^ having found for the defendant,
the plaintiff sued out a writ of error, which
was heard in this court, and a new trial was
ordered, on three erounds:

1. That the judgment In the former case,
although rendered under an erroneous view of
the law, was still evidence which should have
been submitted to the jury with proper instruc-
tions from the court.

Biehardson v. Boston, 60 U. S. (19 How.),268. 1

2. That the record dif dosed some evidcBoe
proper for the consideration of a jury, that Sum-
mer Street was originidly laid out io low water
mark, in which case the court ^eem to imphr
that the right, to use it as a highway on hmd',
would accrue to the abuttors, and the super-
ficial drain which the plaintiff oomplalDs of
might be a nuisance.

8. That there was some evidence of injury to
the plaintiff by deposit of matter from the dnin
at the end of his wharves, for which he might
recover, as his declaration then stood.

The case was tried again at the June Term,
1858, and resulted in a verdict for the defend
ants, under instructions from the court, whkb
arp excepted to on this record.

The po£ition of the plaintiff is aomewlut
modified since the case was last befoi« this
court.

1. The claim for damages by accretions htf
been stricken out of his declaration, under an
arranffement uf counsel.

2. it is no longer controverted that the fee of
the loeus is in the defendants.

8. It is expressly admitted that it is not for anj
obstruction to a way for travel on land, bat onl V
to the access to the plaintiff's wharves by ves
sels, that damages are claimed.

4. The exceptions to the charge of the Judgt
are only to his refusal to nve the ruling re
quested by ^he plaintiffs, and to the inatroctioos
actually given respecting the said highway.

5. Every point upon which the plaintiff orig-
inally rested his right to recover, has been ex-
plicitly decided against him, and the same is
true of all the points on which he now base^
his claim, except that of a public way for boats
and vessels, and this point, the defendants con-
tend, has been substantially and by impIicatioD
decided in their favor, leaving only the que»
tion uf accretions at the end of the plaintiff's
wharves as a ground of claim for damages; asfi
this point is not before the court.

There was no evidence before the jury which
would have authorized them to find that the
supposed way or dock between the plaintifi^^
wharves, from high to low water nuA for the
passage of boats and vessels, as alleged in tbt
7th count of his declaration, was ever ded-
icated by the defendants to the public use, or
was ever laid out according to law, by the Tovn
of Boston, or the authorities thereof, as a high
way for the passage of boats and veaaela f rooi
hieh water mark to the channel.

They had no power to lay out ways bebv
high water mark.

Kean v. Stetson, 5 Pick., 492.

And if they undertook to lay out ways to
low water mark, the laying out would be valid
as far as high water mark, and void below that
point.

Commonwealth v. Wieher, 8 Met., 448; Staff
V. Wilson, 42 Me., 9, 21.

This court has already decided that there i^
no evidence of a dedication to the pnblk in
Lecraw's case, in which the e^dence was, sqI^
stantially, the same as in this.

58 U. S. (17 How.), 426.

The powers of selectmen are conferred by
statute, and are limited to those so confemd.

Rev. Stat., ch. 14, sec. 66, etseg.; Betikym r.
lumer, 1 Me., 111.

The power of laying out ways involving thr

«5 l.S.

itteo.

RlCHABDflOH v. CiTT OF BOfiTOH.

188-195

taking of private property for public uses, is
especially to be stnctly limited to that expressly
granted. And the sefectnun have no more au-
thority to lay out ways over the town's land
than over thiat of others.

Mr. JuiUee Grier delivered the opinion of
the court:

This is the third time in which this claim to
have damages from the City of Boston, for
erecting druns and sewers on their own land
for the preservation of the health of the City,
has come before us.

The plaintiff is the owner of two wharves,
called Bull's wharf and Price's wharf, running
from high water to low water mark. The
space between these two wharves belongs to the
C^ty of Boston, being situated at the foot of
Summer Street; and as it was but thirty feet
wide, it became, by the mere accident of its
p>osition, a very convenient dock, or slip, for
plaintiff, so long as the City did not see fit to re-
claim their land. Formerly, the drains and
sewers which ran under Bummer Street dis-
charged at the end of that street at high water
mark; but, as the City increased, this dischaige
of drains^ became pestilential, and a nuisance
to the neighborhood. To remedy this evil, the
City was compelled to extend its drains out to
low water mark, and this is the nuisance com-
plained of in this and the other suits.

The case of Boston v. Leeraw, 17 How., 420,
first introduced this controversy to this court.
Leeraw was tenant of Richardson, and his title
consequently the same. It was claimed that
the City of Boston, by not wharfine out their
land at the end of Summer Street, had dedicated
it to the public, or rather to the private use of
Richardson, to whose wharves it afforded a
most convenient dock or slip. This claim was
declared by this court to be wholly without
foundation; and that ** whether it was called
* town dock ' or * public dock,' it would furnish
no ground to presume that the City had parted
with their right to govern and use it In the
manner most beneficial to the citizens."

It is not our purpose to again discuss this
question, or agfdn repeat the arguments and
principles on which our judgment was found-
ed. The correctness of that decision has not
been impugned oi' denied, and it needs no in^
teroretaUon.

Uuring the pendenc]^ of this suit of Leeraw,
the tenant, and before its decision in this court,
Richardson had brought a suit for damage to
his reversion by the same alleged nuisances, and
the verdict and Judgment being for less tlian
$2,000, the City could not have a writ of error
to reverse it, as in the other case. When the
present case came on for trial, the decision of
this court in the Leeraw case being known, in
order, if possible, to avoid the effect of that de-
cision, a new count was added to the declara-
tion, drawn with great ingenuity and subtlety,
charging that "there had be^ a highway, or
town way, or public way, to the sea or low
water, duly laid out and established pursuant
to law;" and that the drains made by the City
had "caused mud, earth, and other materials,
to be thrown and deposited upon and near the
said wharves."

The report of our decision on this case will
be found hi 19 How., 208.

See 24 How.

We then decided that a former verdict and
judgment in an action on the case for continu-
ance of the same nuisance was not conclusive
evidence, but is permitted to go to the jury as
persuasive evidence. We stated in what cases
it ought to have weight, and in what it could
have little or none, as where the former verdict
was the result of an erroneous instruction on
the law by the court.

As the additional count, on which the plaint-
iff relied, was rather equivocal or ambiguous,
as to what was meant by a '* highway or town
way " to the sea or low water mark, we decided
that public officers of a town have no power to
lay out a town way between high water and the
channel of a navigable river. A board of pilota
may mark by buoys theb^t channel for vessels
in a bay; but this would hardly be called a
" town way on the ocean." Indeed, it did not.
seem to be seriously contended on the argument
that the selectmen in 1088 had assumed or in-
tended to extend a street or town way by water
over the great ocean highway. But as the City
of Boston was owner of the soil- between high
and low water mark, it had equal right to re-
claim the land as other owners; and having
done 60, a street or " town way " might be es-
tablished thereon.

The court decided that, if the land was so re-
claimed, and a highway laid out on it, the right
to use it as a street or highway on land becomes
appurtenant to the property of the adjoiners,
who might well maintain an action for a nui-
sance on such street or highwav.

The plaintiff had alle^ in this count that he
had received damage to nis wharf by accretions
of mud, &c., below low water mark, and there
was some evidence to support the allegation.
The court decided that this fact should have
been submitted to the jury. It was a question
entirely distinct and separate from a claim of
right of highway in the dock

With this history of the antecedents of this
case, there can be no difficulty in disposing of
the exceptions.

The first exception is to the admission of the
bills of indictment against the Citv. They con-
stituted part of the histoir of tne case, and
were referred to in the testimony of the plaint-
iff, and were, therefore, not wholly irrelevant.
They tended to show " that the conduct of the
City," as disclosed by the evidence, did not
" tend to oppression," as has been charged in
the argument in this court.

The next exception is to the charge of the
court in their instruction, that the former verdict
and ludgment, though admitted in evidence,
should have little or no weight on the decision
of the case, because it was founded on erroneous
instructions on the law. This instruction was
in exact conformity with the ruling of this
court. The verdict was on an agreed statement
of facts, not now disputed, on which the court
gave an opinion, since decided by this court to
be a mistake. Like many other matters given
in evidence to support a case, this verdict was
received as not irrelevant, although the proof
on the other side might show it to be worthless.

The last exception is to the charge of the
court, "that there |3 not any evidence in the
case which will authorize the jury to find that
the supposed wa}[ or dock between the plaintiff's
wharves, from high to low water mark, for the

627

195-207

8UPKBMBC0UBT OV TUK UiTITBD tiVATBa.

Dbc. Tksh.

free egreas and ingress of boats and vessels to
and from the same, as alleged and described
in the seventh count in his declaration, was ever
dedicated by the Town or City of Boston to the
public use, either as a public highway, town
way, dock, or public way, for the access of
boats and vessels between said wharves to high
water mark, or the egress therefrom to the sea.
That there is not any evidence in the case which
will authorize the jury to find that the supposed
way or dock between the plaintiff's wharves,
from high to low water mark, for the egress and
ingress of boats and vessels, to and from the
same, as alleged and described in the seventh
count in his declaration, was ever duly laid out
and established by the Town of Boston, or the
authorities thereof, pursuant to law, either as a
public highway, town way, or public way, for
the access of boats and vessels between said
wharves to high water mark, or the egress there-
from to the sea."

This instruction is in entire conformity with
the previous decisions of this court on this
subject

There was nothing, in the opinion of this
court, which should subject it to the miscon-
struction of having decided that a '* town way "
for boats and vessels could be laid out on ue
high seas, or of imputing to the town officers
such an obliquity of understanding as the as-
sumption of such a power would argue; on the
contrary, the court decided that the public offi-
cers had no such power; but that the City, after
it reclaimed the land to high water noark, might
continue Summer Street as a highway on land,
for a nuisance, to which the plaintiff might sus-
tain an action; and this case was remanded in
order to give the plainti£F an opportunity to
have the verdict of the jury on this subject;
and also for any injury he might have sustained
by the diains causing an accumulation of mat-
ter at the outer end of the plaintiff's wharves.
The record shows that the plaintiff abandoned
any claim for damages for either of these
causes, and he was, of course, left without any
case to be submitted to the jury.
' Judgment qf the dreuii court w, therefore, <tf-
firmed, with eoste.

Cited-74 U. 8. (7 Wall).. 99 ; 91 U. 8.. 68 ; 94 U. 8.,
36; U Am. Rep., 667 (10 B. I., 86), 48 Am. Bep.,4fi2
(49 Miob., 110).

JAMES NATIONS AND JOSEPH NATIONS,

Piffs. in Er..

«.

NANCY ANN JOHNSON and JAMES

JOHNSON.
(See 8. a, 84 How., 196-W7.)

Decidon of a court hacing Juriedietion, is bind-
ing in other eourte—junediciion of courts of
general jurisdiction, presumed — notice to de-
fendant necessary to jurisdiction — writ of error
— when notice of, by pubUcaUon, sufficient—ex-
ceptions.

Where a oourt has Jurtodictioa, it baa a rlflrbt to
decide every question which occurs in the cause ;
and whetbiBr its decision be ^x>rrect or otherwise,
its Judg^ment, until reversed, a« a general rule, is
regarded as binding in every other court.

Whenever the parties to a suit, and the subject-
matter in controversy, are within the Jurisdiction

688

of a oourt of equity, the decree of that court U to
every intent as binding as would be the Judraeot
of a oourt of law. Courts of general juriadUctloA
are presumed to act By right, and not by WTODg.
unless it dearly appears that they have txanacended
their powers.

Notice to the defendant, actual or ooDstmctive,
however, is essential to the Jurisdiction of all courts.
Actual notice ouvht to be given in all oases where
it is practicable, even in appellate tribunals.

A writ of error does not act upon the parties ; It
acts only on the record, by removing' the record
into the supervising tribunal.

A writ of error is a continuation of the origtnal
litigation, rather than the oonunenoement of a new
action.

Where the record shows that the defendant sp-
peared in the subordinate oourt, and iltisated w
merits there to final Judgment, he cannot defeat
an appeal by removing from the Jurisdiction, so ae
to render a personal service of the citation lmp(»-
sible.

In that state of facts, service by pubUcatlon.
according to the law of Jurisdiction and the prac-
tice of the court, is free from objection, aiid w
amply suflloient to support the Judgment of the
appellate court. •

A bill of exceptions does not bring into this oouit
any of the prior proceedings for revision.

Argued Jan, 7, 1861, Beaded Jan. SI, IS€L

IN ERROR to the Circuit Court of the United
States for the Western District of Tennessee

This case arose upon a petition filed in the
court helow, by the defendants in error, ob
certain foreign judgments or decrees, for oer
tain negroes and their hire.

The trial resulted in a verdict and JudgmeDt
in favor of the plaintiffs: whereupon the de-
fendants sued out this writ of error.

A further ^statement of the case appears in
the opinion of the court.

Mr. George W. Paschalt for plaintiibin
error:

It may be safely stated, as a general principle,
that a judgment obtained by publicsUion and
without personal service, cannot be the fous-
dation of >n action in another State. All suiu
are either in personam or in rem. When in
personam, there must be personal service to give

iurisdiction. When in rem, the remedy is ex
lausted when the res is disposed of.

But as there is no pretext that there was per
sonal service in this case, or that the party tp
peared to the writ of error, or that it was a pr>
ceedingtnrem, then it follows that the Supreme
Court in Mississippi had no jurisdiction over
the defendants and the decree rendered thereifi.
and the subsequent decrees of the Vice-Chan-
edloT's court were nullities for want of juri^
diction.

6 Mas.. 40; 11 Wend., 647; 6 J. J. Marah..
11, 14. 29, 198, 197; JftwtwB v. 0«m, 9 How..
886; W^UfT V. BM, 11 How., 487.

This question of jurisdiction may be raised
collatenulv, or at anv time whenever the jtxig
ment shall be offered,.

1 Pet., 828; 8 Pet, 198; 10 Pet.. 474; 8How..
840; 4 Cranch, 241; 11 Pet., 498; 8 How.. 750;
9 Tex.. 818; 4 N. Y.. 518; Qreen ▼. Outoni,
64 U. S. (28 How.), 484.

But it is presumed that the court below weoi
upon the sround that as the parties appeared
and pleaoed in the chancery court, the^ wot
bound by the subsequent proceedings in Ihe
court of errors and appeals. Had the oomplsis-
ants prosecuted their appeal as the law required,
this would be true ; but as they let the time elapt
and the defendants had left the State, and bad
no attorney of record upon whom to effect senr-

%k U.S.

1860.

Nations y. Johmboh

195-207

ice, the proceeding upon the writ of error was
as much a proceeding by a mere publication ae
though it had been a matter of original cogni-
zance.

* The Mississippi statute is not different from
the statutes under which the decisions above
quoted were made.

Hutch. Dig., 768, 759. sees. 84, 85; Hutch.
Dijg., p. 931.

The plaintiff did not perfect the appeal, the
citation can only be served upon the party or
his attorney of record, thus showing that the
writ was, to all intent and purposes, one orig-
inal proceeding.

A writ of error is an original writ.

2 Tidd. Pr., 1134: Co. Litt., 298 h; 2 Wm.
Saund., 5ed., ICO.

A writ of error, like a 8cire fadM, is consid-
ered anew action and, therefore, upon bringing
it, the defendant in the original action mav
change his attorney without obtaining a judges
order therefor.

2 Tidd, Pr.,114t ; Batchehrr. Ellis, 7 Dum. &
£. , 837; see, also, PiUrfaxY, Fbirfaix, 5 Cranch,
19; 2 Sm. Lead. Cas., 551, notes to the cases of
MiUs V. Duryee, 7 Cranch, 481, and McSlmayle
▼. Cohen, 18 Pet., 312; Bissell v. Brigas, 9 Mass.,
462; Oreenv, Sarmiento, 1 Pet. C. C., 70; ffaU
▼. WUUams, 6 Pick., 232; Woodward v. Tremere,
6Pick.,355:4Ga.,48;9Ga.,182; 11 Oa.,455;
35 Miss., 518; 2 Post. (N. H.), 277; 1 R. I., 78;
D'Arcy v. Ketchum, 11 How.. 165; 4 Met., 888;
Lincoln v. Fa/ner, 2 McL., 478.

The principle is that in cases of service by
publication every prerequisite to the Judgment
must be preserved and affirmatively snown.

Thatcher v. PoweU, 6 Wheat., 119; Bumkenr
dorffy. Taylor, 4 Pet , 859; Bloom v. Burdick,
1 Hill, 180; Bea v. McEachron, 18 Wend., 465;
Atkins V. Kinnan, 20 Wend., 241; Jackson J9.
ASheppard, 7 Cow. , 88 ; Jackson v. Estyjl Wend. ,
148; Sharp v. Johnson, 4 Hill, 99.

The court took the decree as conclusive as to
the amuulit of hire due since the rendition of
the judgment in Mississippi. This was clearly
wrong. The judgment could not operate pro-
spectively as to the rate of the hire.

No counsel appeared in tliis court for defend-
ants in error.

Mr, Justice Clifford delivered the opinion
of the court:

This case comes before the court upon a writ of
error to the District Court of the United States
for the Western District of Texas. It was a
petitory suit, commenced by the present defend-
ants, and was founded upon a certain final de-
cree rendered at the April Term, 1854, by the
district chancery court, held at CarroUton, in
the State of Mississippi, for the northern dis-
trict of that State. Among other things, the
petitioners allege that Nancy A. Johnson, then
N'ancy A. Alvis, and a minor, bv her next friend,
brought a suit by bill of complaint in that court
against the present plaintiffs to recover three
slaves belonging to her, together with hire for
the same for a specified time; that she subse-
quently intermarried with James Johnson, who
was admiited with her to prosecute the suit;
that the cause was afterwards submitted to the
court for a final hearing, and a decree entered
dismissing the bill of complaint at the cost of
the petitioners. They also allege that they

See 84 How.

prosecuted a writ of error to the high court of
errors and appeals in that State, and that the
decree of the district court of chancery was
there reversed, and a decree entered in Uieir fa-
vor. That decree, as set forth in the petition,
shows that the appellate court was of the opin-
ion that the slaves in controversv were the prop-
erty and separate estate of the first named com-
plfunant. Wherefore it was considered by the
court that the decree of the Vice- Chancellor
ouehl to be reversed, and it was so ordered, ad-
judged and decreed ; and the court proceeding
to pronounce such a decree as the subordinate
court should have rendered, entered a decree
that the complainants do have and recover of
the respondents the slaves then in controversv,
for the sole and separate use and right of the
first named complainant, and requiring the re-
spondents to restore the slaves and deliver the
possession of the same to the said complainant,
or her authorized agent, ^t is also recited in the
decree that the court was of the opinion that the
complainant was entitled to recover hire for the
slaves from the time they were taken from her
possession by the respondents. To carry out
the directions of the court, it was further or-
dered, adjudged and decreed, that the cause be
remanded to the subordinate court, and that an
account be taken of the hire of the slaves, and
for such other and further proceedings as may
be required in the premises. After the man-
date went down, the cause was sent to a com-
missioner to carry into effect the directions of
the appellate court. He made a report, show-
ing that on the 4th day of February, 1854,
the reasonable hire for the slaves amounted
to the sum of $2,200; and he also reported that
the hire of the slaves was reasonably worth
$200 per annum. That report was confirmed
by the court, and on the 14th day of April
of the same year a decree was entered in favor
of the complainants, that they do have and
recover of the respondents the said sum of
$2,200 with interest; and also, that they do
have and recover of the respondents at the rate
af $200 per year for the hire of the slaves, from
the date of the report until they shall be sur-
rendered up according to the decree in the
cause. As a part of this decree, it was also or-
dered and directed that execution issue, as at
law, for the amount awarded to the complain-
ants, together with the costs of suit. Plaintiffs
also allege in their petition or declaration, that
those decrees or judgments were in full force,
and that they have never in any manner been
annulled, reversed, satisfied or discharged, ei-
ther in whole or part. Process was duly served
upon the defendants in this case, and on the
5th day of December, 1854, they appeared and
made answer to the suit. F^m the minutes
of the clerk it would seem that the suit was en-
tered, in the first place, as a suit at law, and it
was certainly so treated by the defendants in
their first answer. Those proceedings, however,
are of no importance in this investigation, be-
cause the record stated, that on the 4th day of
December. 1856, the cause was docketed on the
chancery side of the court; and on the 2d day of
June, 1857, the defendants again appeared and
filed their answer to the petition, without objec-
tion to the transfer which had been made of
the cause. To that answer the plaintiffs ex-
cepted on various grounds, and after a full

ess

105-207

BUFBBMB GOUBT OF THB UlTTTBD STATSa.

Dsc. Tbrx,

hearing the exceptions were sustained, and the
answer was stricken out by the order of the
court. Both parties again appeared before the
court, sitting in chancery, on the 11th day of
June, 1857, when, as the record states, '' upon
motion, and merits examined by the court, it
was ordered that the cause be transferred to the
law docket." No objection was made to that
order by either party, and for aught that ap-
pears to the contrary, the transfer was made by
consent. Leave was subse(juent1y granted to
the plaintiffs to amend their petition, and on
the 26th day of January, 1858, they filed an
amendment to the same, alleging that they were
citizens of the State of Tennessee, and that the
defendants were citizens of the State of Texas.
They also alleged in their amended petition,
that the slaves in controversy were of the value
of $8,200, and prayed Judgment in their favor
for the recovery of tl^jB slaves, and in default of
the delivery of the possession of the same, they
also prayed Judgment for their value, and "for
genera] relief."

Exceptions were filed by the defendants, to
the amended petition, but the exceptions were
overruled by the court. At the same time the
defendants filed an additional answer to the pe-
tition, denying all the allegations and charges
therein contained, and also pleaded the Statute
of Limitations in two forms, as set forth in the
transcript. Afterwards, on the 6th day of Feb-
ruary, 1858, the defendants had leave to plead
nul tid record to the respective decrees set
forth in the plaintiff's petition. On that issue
the court found for the plaintiffs, and overruled
the plea, and the parties went to trial upon the
plea denying all the auctions and charges
contained in the plaintiin* petition, and upon
the pleas setting up the Statute of Limitations.
To support the issue on their part, the plaint-
iff introduced duly certified copies of the two
records and decrees set forth in their petition,
and proved, by competent witnesses, the value of
the slaves at the time of the trial. By that tes-
timony it appeared that one of the slaves was
of the value of $800. and that the other two
were each of the value of |000. Defendants of-
fered to prove that they removed from Missis-
sippi on the 20th day of January, 1850; that
they became citizens of Texas, and were domi-
ciliated there on the 21st day of February of
that year, and that they had ever since resided
there as citizens of that State. That testimony
was excluded by the court upon the objection
of the plainti£fo, and the defendants excepted
to the ruling. They offered no other evidence,
and imder the instructions of the court the Jury
returned their verdict for the plaintiffs. At
the trial, the defendants requested the court to
Instruct the Jury that —

1. The transcript from the record to the
high court of errors and appeals, and the Chan-
cery Court for the Northern District of the State
of Mississippi, is not evidence sufi^cient to en-
title the plaintiffs to recover.

2. That that portion of the decree of the
chancery court fixing the hire of the negroes at
$200 a year, from and after the date of that
decree, is no evidence of the value of the hire
of said nenoes; and unless the plaintiffs have
introducea some evidence independent of that
record, proving the value of the hire, the Jury

630

cannot allow hire from the date of the Jadjfr-
ment rendered by the Vice-ChaneeBar.

But the court refused so to instruct the jurj,
and did instruct Uiem that the record was con-
clusive proof that the title of the slaves was io
the plaintiffs, and of the value of their hire ap
to the 4th day of February, 1854, as shown
by the record ; and the Jury were also instructed
to return a verdict in favor of the plaintiffs for
the additional hire, at the rate of $200 per an-
num, from the date of the decree. Inatnictioiu
were also ffiven to the jury as to the other mat-
ters of claim set forth in the petition; bat in-
asmuch as they are not now made the subject
of complaint, we diall pass the exceptions orer
without remark, except to say that they an
evidently without merit.

On this state of the case three questions are
presented for decision:

1 . It is insisted by the plaintiffs in error that
the court erred in charging the Jury that the
record offered in evidence was conclusive proof
as to the title of the slaves in controversy, and
of the value of their hire to the date of the de-
cree. That theory is based upon certain facts
which are apparent in the record of that siiit.
and the question is raised both by the instruc-
tions given to the Jury and by the refusal of
the court to charge as requeued. It ap^ean
from the record of the suit, that the bill of
complaint was filed in the District ChanoeiT
Court for the Northern District of MIssiwiptH
on the 26th day of November. 1846, and that
the respondents entered their appearance om the
28d day of November, 1847, and made answer
to the suit. Testimony was taken on both
sides, and the respondents continued to proae^
cute their defense to the suit until the Uth daj
of April, 1850, when, upon final hearing, the
bMl of complaint was dismissed at the cost of
the complainants. Respondents' attorney then
withdrew his appearance; but the record states
that the complainants, on the same day, prajfd
an appeal, which was granted, upon their giT
ing bond for costs in ninety days, ''andbr
consent it is agreed " that the appeal be taken
directly to the high court of errors and appeals.
Complainants, however, failed to prosecute the
appeal within the appointed time, and ooD8^
quently were obligeid to prosecute the appeal
by writ of error. It is not now questioned that
a writ of error, under the circumstances of the
case, was the proper process, by the law of
that State, for the removal of the cause into the
appellate court; but it is insisted that the sab
sequent decrees are void, because the respond
ents were not legally notified of the pendeocr
of the writ of error. Personal service was not
made on either of the respondents, and they
never appeared in the appellate court. Od Uk
contrary, it appears that the attorney of the
complainants, on the 18th day of Januarr.
1852, filed an afiSdavit in the cause, that the
defendants in error were not residents of the
state, and that they had no attorney of record
on whom process could be served. Prorisoo,
however, is made by the law of that State for
service by publication in cases of this deicrip
tion. By the Act of the 20th of January, ISSt-
it is provided, that '* whenever a cause shall
be removed to the Supreme Court by writ of
error, and the court is satisfied that the defend-
er €.&

1960.

Nations v Johnson.

195-207

ant in error is a non- resident, and has no attor-
ney of record within this Btate, it shall be the
duty of said court to cause notice of the pend^
«ncy of said cause to be publislied for three
weeks in some public newspaper, the first of
which shall be at least three months before the
Hitting of the next term of the court in which
the case is pending, within this State; on proof
of which publication, the court shall proceed
to hear and determine said cause, in the same
nianner as if process had been actually served
upon the said defendant." Hutchison's Dig.,
p. 081.

That regulation, by a subsequent Act passed
on the 2d day of March, 1833, is made applica-
ble to the high court of errors and appeals, and
it was conceded at the argument that the pub-
lication was made under that provision. On
the filing of the affidavit, showing that the de-
fendants in that suit were nonresidents of the
State, it was ordered by the court, that unless
they appeared on the third Mondav of October,
1858, *' the court will proceed to hear and de-
termine the cause in the same manner as if proc-
ess had been actually served; and it was fur-
ther ordered that a copy of the order be pub-
Hshed in a certain public newspaper published
at Uie capital of the State, once a week, for
three weScs." Publication was accordingly
made, as appears by the decree in the cause,
And on the 23d day of January, 1854. the de-
cree was entered reversing the decree of the
subordinate court; and the question is, whether
the notice was sufficient to give the appellate
-court Jurisdiction of the case and the parties.
That the subordinate court had full jurisdic-
tion is admitted. Both of the respondents ap-
peared in that suit, and Hti£»ted the merits for
the period of three years. From the evidence
in the case, it appears that they got possession
of the slaves in Tennessee, in violation of the
rights of the first named complainant, and re-
moved them to the State of Mississippi. Suit
Mras brought against them in a subordinate
•court of the latter State, and after three vears'
litigation, and when they had succeeded indis-
mi^ng the bill of complaint, they removed to
Texas, carrying the slaves with them, although
. they knew the complainants intended to seek a
revision of the decree In the appellate court.
All of the equities of the case are, therefore,
with the present defendants. Where a court
has jurisdiction, it has a right to decide every
question which occurs in the cause; and
whether its decision be correct or otherwise, its
judgment, until reversed, as a general rule, is
r^iuxied as binding in every other court.
Wnenever the parties to a suit, and the subject-
matter in controversjr between them, are with-
in the regular jurisdiction of a court of equity,
the decree of that court is. to every intent, as
binding as would be the judgment of a court of
law. Accordingly, it was held by this court,
in PmningtonY, Oibson, 16 How., 65, that in
all cases where an action of debt can be main-
tained upon a judflrment at law, to recover a
sum of money awarded by such judgment,
the like action may be maintained upon a de-
cree in equity, provided it is for a specific
amount, and that the records of the two courts
are of equal dignity and binding obligation.
Had the decree, therefore, been rendered in
the subordinate court before the appeal, the

See 24 How.

riffht of the plaintiffs below to recover in this
suit would have been beyond question, unless
there is some other error in the record. Courts
of eeneral jurisdiction are presumed to act by
right, and not bv wrong, unless it clearly ap-
pears that they have transcended their powers.
Oregmm v. Astor, 2 How., 819; Voor?ie68Y.
Bank of U, A. 10 Pet.. 4*9.

Notice to the defendant, actual or construct-
ive, however, is essential to the jurisdiction of
all courts, and it was held by this court, in
WebsUr V. Reid, 11 How., 460, that when a
judgment is brought collaterally before the
court as evidence, it may be shown to be
void on its face by want of notice to the
person against whom it is entered. Numerous
cases, aim, are cited by the counsel of the
present plaintiffs, applicable to the judgments
or decrees of a court exercising original juris-
diction, which assert the general rule that no
man shall be condemned in his person or prop
ertv without notice, and an opportunity to
make his defense. And some of them go much
further, and lay down the rule as applicable to
the inception of the suit, that notice by publi-
cation is insufficient to support the judgment
in any jurisdiction, except in the courts of the
state where it was rendered. BowteU v. OUs^
9 How., 850; Oakley v. AtpinwcM, 4 N. T.,
513. None of these cases, however, precisely
touch the question under consideration. Per-
sonal service was made upon the defendants in
this case by due process of law in the court of
original jurisdiction, and the question here is,
whether a party duly served with notice in a
subordinate court, after he has appeared and
answered to the suit, and secured an erroneous

Judgment in his favor, mav voluntarily absent
limself from the jurisdiction of the appellate
tribunal, so as to render it impossible to give
him personal notice of an appeal, and still have
a riffht to complain that notice was served by
puluication, pursuant to the law of the jurisdic-
tion from which he has thus voluntarily with-
drawn. We think not. To admit the propo-
sition, would be to deprive the other party of
all means of removing the cause to the appel-
late tribunal, and would enable a party, who
knew he had wrongfully prevailed in the court
below, to secure the fruits of an erroneous
judgment, by defeating the jurisdiction of the
appellate court. Actual notice ought to be
piven in all cases where it is practicable, even
in appellate tribunals; but whenever personal
service has been rendered impossible bv the re-
moval of the appellee or defendant in error
from the jurisdiction, service by publication is
sufficient to give the appellate tribunal juris-
diction of the subject and the person, provided it
appears in the record that personal notice was
given in the subordinate court, and that the
party there appeared, and litigated the merits
of the controversy. Contrary to the views of
the counsel for the present plaintiffs, we think
there is some distinction between the notice
required to be given to an appellee or defend
ant in error and the service of process in the
original suit. A writ of error is said to be an
original writ, because, at common law, it was
issued out of the court of chancery; but its
operation is rather upon the record, than the
person. Under the Judiciary Act, says Mar-
shall, Ch, J,y the effect of a writ of error is

681

S07,d06

SUFBBMB OOUBT OF THB UinTBD StATBB.

Dac. TxBii,

simply to bring the record into court, and sub-
mit the Judgment of the inferior tribunal to re-
examination. It does not in any manner act
upon the parties; it acts only on the record, b^
removing the record into the supervising tri-
bunal. Suits cannot, under the Judiciary Act,
be commenced against the United States; and

Set writs of error, accompanied by citations,
ave uniformly ispued for the removal of iudg-
ments recovered in favor of the United States
into this court for re-examination. Such cases
are of daily occurrence, and the judgments are
here reversed or affirmed as they are, with or
without error; and it has never been supposed
that the writ of error in such cases, though
sometimes involving large amounts, was a suit
against the United States. Plainly, therefore,
there is a distinction between a writ of error
had the original suit. According to the prac-
tice in this court, it is rather a continuation of
the original litigation than the commencement
of a new action ; and such, it is believed, is the
eeneral understanding of the legal profession
m the United States. Cohem v. Virginia, 6
Wheat., 410; Clark r. MaUhevMon, 12 Pet., 170.

No rule can be a sound one which, by its
legitimate operation, will deprive a party of
his right to have his case submitted to the ap-
pellate court; and where, as in this case, per-
sonal service was impossible in the appellate
court, through the act of the defendant in er-
ror, it must be held that publication, according
to the law of the jurisdiction, is constructive
notice to the partv, provided the record shows
that process was duly served in .the subordinate
court, and that the party appeared and litigated
the merits. Constructive notice, says Mr.
JtuHee Baldwin, in HoUingsteorthv. Barbour
4 Pet., 476, can only exist in the cases coming
fairly within the provisions of the statutes
authorizing the courts to make orders for f)ub-
lication, and providing that the publication,
when made, shall authorize the courts to de-
cree. Begina v. Lightfoot, 26 Eng. L. <Sk £.,
177 (6 El. &B., 822).

As stated by this court in Rarri$ v. Harde-
man, 14 How., 889, a judgment upon a pro-
ceeding in pertonam can have no force as to
one on whom there has been no service of proc-
ess, actual or constructive, and who has had
no day in court or notice of any proceeding
against him. Judgment in that case had
been rendered witheut any sufficient notice,
either actual or constructive and, of course, it
was held to be irregular; but the opinion of the
court clearly recognizes the principle that con-
structive notice in certain cases may be suffi-
cient to bind the party. Everv person, as this
court said in the case of Ths Mary, 9 Cranch,
144, mav make himself a party to an admiralty
proceedmg, and appeal from the sentence; but
notice of the controversy is necessary, in order
to enable him to become a party. When the
proceedings are against the person, notice is
served personally, or by publication; but where
they are in rem, notice is served upon the thing
itself. Common Justice requires that a party,
in cases of this description, should have some
mode of giving notice to his adversary; and
where, as in this case, the record shows that
the defendant appeared in the subordinate
court, and litigated the merits there to final
judgment, it cannot be admitted that he can

defeat an appeal by removing from the juris-
diction, so as to render a personal service of the
citation impossible. On that state of facts,
service by publication, according Ic the law of
the jurisdiction and the practice of the court,
we think is free from objection, and is amply
sufficient to support the judgment of the ap-
pellate court. Ma/ndeeQie v. Rigg», 2 Pet,
489; Hunt v. WiekMffe, 2 Pet., 214.

2. It is insisted, in the second place, by the
counsel of the plaintiffs, that the court erred in
allowing the decree to go to the jury as evidence
of the value of the hire of the slaves subsequently
to the 4th day of February, 1854. That theoiy
overlooks the fact that testimony had been in
troduced bv the present defendants showing
the value of the slaves at the time of the trial;
and that the decree was to be taken in connec-
tion with the parol testimony, showing that the
slaves were still living, and m the poeaeasion of
the parties originally charged with their ab-
duction. No evidence had oeen offered by the
defendants, and, in view of the circumstances,
we think the charge was correct, and that the
prayer for instrucuon was properly refused.

8. While the cause was pending on the
chancery side of the court, on motion of the
plaintiflfs, the court struck out the answer of
the defendants, and it is now insisted that the
action of the court in that behalf was erroneous.
All we think it necessary to say, in reply to
this objection, is to remark that the cause was
subsequently transferred to the law docket
without objection, and that a bill of exoeptions
does not brmg into this court any of the prior
proceedings for revision. Whatever noay be
the practice in the state courts, counsel must
bear in mind that there is a broad distinction
between a suit at law and a suit in equity, and
must understand that this court caonot and
will not overlook that distinction.

Thejttdgment of the di$Mct court u afinmd,
with costs.

Cited-68 U. 8.(1 Wall.), 283; 72 U. 8. C5 WalU.
aOB: 74 U. 8. (7 Wall.), 210: 76 U. S. (9 WallJ,313:
87 U. 8. tm Wall.), 222: 88 U. 8., <21 WaUJ, «BB; »
U.S.(23 WaU.), 186; 91 U. 8. 601,606, 661; 96 U. &.
73i; 12 Bank. Reg., 160. 138; IS Bank. Itov^ aW;
18Blatohf.,26.

GEORGE R. SAMPSON and LEWIS W.
TAPPAN, merchants doing business under
the firm and name of Sampson & Tafpa5.
claimants of the ship Sarah, &c,, Appts.,

SAMUEL WELSH. JOHN WELSH akd
WILLIAM WELSH, trading as S. & W.
Wblsh.

(See 8. C, 24 How^ 2Qf7-206.)

Jurisdiction as to amount — consent, or Hipula-
tion, will not coftfer.

Where the final decree of the circuit court wi
for less than $2,000, no appeal from its decree will
lie to this court.

The decree hy the droult court was In flavor of

NoTB.— JurMtetion of U, S. Suprtme Court deprwf-
ent on amount. Interest cannot be added to gitf
jurisdiction. How value of tMng demandtd wtat/ 1*
tihown. What eases reoiewabU without regard tn m^M
in controversy. 8ee note to Gordon v. Ofdcn, 2S r.
8. (8 Pet.), 88.

«6 U.S.

1860

Chandlbb v. Von Robdbr.

224-228

the libelaats for the 811m of $8,808.78, with leave to
the respondents to set off the halanoe due them for
freight, If they should elect to do so. Afterwards,
the respondents appeared In court, and elected to
set off this balance airalnst the sum decreed against
them, which reduced the amount to $l,071wS7.

But in making ttiis election, the proctors for the
respondents stated In writing, and filed in the
court, that the election to set off was made without
anv waiver of their right to appeal from the decree.

After this election was made, the court, on the
31st of August, 1858, passed its decree in favor
of the libelants for the above mentioned sum of
SLOTl JB7. with interest from July 80, 1868.

This was a final decree of the court, and the one
from which the appeal is taken ; and as it is below
$8,000, no appeal will lie,under the Act of Congress.
And neither the reservation of the respondents in
making their election, nor even the consent of
both parties, if that had appeared will give Juris-
diction to this court where it is not given by law.

SulnniUed Jan. 7, 1861, Decided Jan, 2U 1861,

APPEAL from the Circuit Court of the Unit-
ed States for the District of PennsylvaDia.
The history of the case and a sufficient state-
ment of the facts, appear in the opinion of the
cx>urt.

Mes»rs. G. W. Wharton and R. P. Kane.
for appellants.
Mmsts. FaUon and Serrlll, for appellees.

Mr. Chief Jtutiee Taney delivered the opin-
ion of the court:

This case is brought up by an appeal from
the. Circuit Court or the United States for the
Eastern District of Pennsylvania.

A libel was filed in the district court for that
district by S. & W. Wel5ih, the appellees, against
the ship Sarah (of which Sampson A Tappan,
the appellants, are the owners) to recover com-
pensation for damages sustained by a cargo of
coffee shipped on board The Sarah, at Rio, and
consigned to the libelants: and also to recover
compensation for sundry disbursements made
by the libelants for the payment of wages and
provisions for the ship.

The ship owners appeared and answered ; but
it is unnecessary to state more particularly the
facts in controversy between the parties, because
the final decree of the circuit court was for less
than $2,000, and consequently no appeal from
its decree will lie to this court.

At the hearing in the district court the libel
was dismissed ; but upon an appeal to the circuit
court this decision was reversed, and a decree
passed by the circuit court in favor of the li-
belants for the sum of $3,802.78, with leave to
the respondents to set off the b^ance due them
for freight, if they should elect to do so. Aft-
erwards, the respondents appeared in court,
and elected to set off this balance aniinst the
sum decreed against them, which rcwluoed the
amount to $1,071.27. But in making this elec-
tion, the proctors for the respondents stated in
writing, and filed in the court, that the election
to set off was made without any waiver of their
right to appeal from the decree. After this
election was made, the court, on the 31st of
August, 1858, passed its decree in favor of the
libelants for the above mentioned sum of
$1,071.27. with interest from July 20, 1858.
This was the final decree of the court, and Uie
one from which the appeal is taken; and as it is
below $2,000, no appeal will lie, under the Act
of Congress. And neither the reservatfon of
the respondents in making their election, nor
even the consent of both parties, if that had

See 94 How.

appeared, will ^ve iurisdiction to this court
where it is not given by law.

I^ appeal miut, thertfore, bedismiued for
toarU of jurudietion.

Cited— 83 U. 8. ae Wall.), 845 ; 06 U. 8.. 696 ; 104 U.
S.,465.

JAMES A. CHANDLER, Plff, in Br.,

OTTO VON BOEDER. HAMILTON LED-
BETTBR AHD CHARLES VON ROSEN-
BURG.

(See S. C, 24 How., 2S4-228.)

Texas Act cf lAmitaUone — queetion for court
and jury — U is error to submit qtiestion to jury
where there is no evidence— eoidenee of fraud
— where decision is favorable, party cannot ex-
cept to the evidence.

Where there was not five years from the date of
the deed to defendant to the oommeneemeot of the
suit ; held, that the pleas of the Texas Statute of
Limitations were not proved.

Whether there be any evidence is a question for
the Judflre ; whether there be suffloient evidence la
for the jury.

The court erred in submittinar the decision of
questions to the jury when there was no evidence
to raise them.

The district court erred in refusing to receive
evidence to impeach a deed for fraud.

Where it appears from the char^ that the decis-
ion of the court was favorable to the plaintiff, he
has no cause for complaint upon his exceptions to
the competency of the evidence.

Argued Dec, f 7, 1860, Decided Jan, tl, 186L

IN ERROR to the District Court of the United
States for the Western District of Texas.

This case arose upon a petition filed in the
court below by the plaintiff in error, to tir title
to a league of lana. The trial resulted in a
verdict and judgment in favor of the defend-
ants; whereupon the plaintiff sued out this writ
of error.

A further statement of the case appears in
the opinion of the court.

Messrs. Badger A Carlisle and G. W»
Paschal, for plaintiff in error:

The court should not charge upon an issue
to which there is no evidence.

Austin V. laik, 20 Tex., 164; Andrews v.
8mithwiek, 20 Tex., 118 ; SteagaU v. McKeOar,
20 Tex,, 268; Chandler v. FuUon, 10 Tex., 21.

The court ought to have instructed the jury
that there was no evidence to warrant a finding
upon either Statute of Limitations.

Lea y. Hernandest, 10 Tex., 187; Parker v.
Leman, 10 Tex., 116.

A charge in the abstract might be harmless,
and yet ruinous if not warranted by the evi-
dence.

Thompson v. Shannon, 9 Tex., 587; McOreal
V. WHson, 9 Tex., 429 ; Wheeler v. Moody, 9
Tex., 872; Davis v. Loftin, 6 Tex.. 492; Crosier
V. Kirker, 4 Tex., 262; ^pence v. OnstoU, 8
Tex., 147; Love v. Wyatt, 19Tex., 812 ; Hom-
cockv. Horan, 15 Tex., 607.

There having been no written evidence what-
ever, to sustain the pleas of three or five years*^
limitation, it was error not to give the charge

Nora.— Outftimu of law andfacU for cnurt or jurjf
in civQ ana criminal eases. See note to King" v. Dela-
ware Ins. Co., ion. S. (8 Cranch), 71.

284-888

SUPBEMX COUBT OF THB UnITSD BtATBS.

Dsa Tku,

which said there was no such issue before them,
because the refusal was calculated to leave the
Jury in doubt as to the fact.

Wintg V. Morri$on, 17 Tex.. 872.

The court must not assume that as doubtful
which is clear and indisputable. The courts
for the District of Texas having adopted the
state practice in common law cases, this court
will follow the state decisions, although Texas
may not be embraced in the Act of Congress.

U. 8. V. Waruan, 1 Gall., 5 : FuUerU^n v.
Bank of U. 8.,l Pet., 612: Hiriart v. BaOon, 9
Pet., ir»6; WngfUY. Lesaee of HoUifig^worth, 1
Pet., 165; Life and Fire 2ns. Co. v, Wilson, 8
S Pet., 291.

The rules of the Supreme Court of Texas,
however, on this subject, are consistent with
the common law.

GrsenUqf v. Birth, 9 Pet., 897; Rhett v. Foe,
2 How., 488 : (7. <fe 0. Canal Co, v. Knapp, 9
Pet.. 541.

Messrs. W. 6. Hale and C. Robinson*
for defendants in error.

Mr. <7ii«t«vCajnpbell delivered the opinion
of the court:

The plaintiff claimed in the district court a
league of land in the County of Fayette, orig-
inallv granted by the Mexican (Government to
William H. Jack, and which was in the posses-
sion of the defendants. His title consists of a
record of a suit in one of the district courts of
Texas, in favor of Bremond and Van Alstyne
against a number of persons associated under
the name of the (German Emigration Company,
founded upon notes and bills of the Company,
dated in the years 1846 and 1847, and upon
which judgment was recovered in 1852.

An execution was issued upon this judgment,
and a levy, sale and conveyance of the property
in controversy were made in 1858, according
to the exigency of the writ. The plaintiff was
the purchaser at the sale. There was testi-
monv conducing to prove that Von Roeder en-
teroa upon the land as the agent of the Com-
pany. The defendants, in their answer denied
the sufficiency of this title, and pleaded that
they had had adverse and peaceable possession
of the land for more than five ^ears under deeds
duly registered, and had paid taxes thereon ;
and also that they had possessed the land peace-
ably for more than three years, under title or
color of title, derived from the sovereign au-
thority, thus claiming the benefit of the 15th
and loth sees, of the Act of Limitations. Hart-
ley's Dig., arts. 2391, 2892.

The title exhibited on the trial by the defend-
ants consisted of a deed purporting to be made
by the Qerman Emigration Company, through
an attorney, Gustavus Dressell, in the year
1848. in favor of the defendant. Von Roeder,
in which this and other property was conveyed
to him, and deeds from Von Roeder to the co-
defendants dated in 1850, and that the defend-
ants had had adverse possession under them.
There was not five years from the date of the
deed to Von Roeder to the commencement of
the suit, and there was no testimony to show in
what manner the German Emigration Company
had become entitled to the property. No con-
veyance from William H. Jack, the original
grantee, was produced either to the Company
or to the defendants. Thus, the pleas of the

«84

Statute of Limitations were not proved. The
plaintiff's counsel requested the court to instract
the jury that there is no documentary evidence,
title, or color of title, to support these pleas of the
defendants. The court declined to iidvise the
jury as requested, but after informing them of
the nature of the title and possession that would
support such pleas, directed the jury to inquire
whether the defendants had adduced sufficient
evidence to sustain them. The entire case, in
so far as such pleas were concerned, was con-
tained in written documents and undisputed
facts. It is the duty of the court to determine
the competency of evidence, and to decide all
legal questions that arise in the progress of a trial
and, consequently, when, assuming that all the
testimony adduced by the one or the other party
\b true, it does or does not support his issue, its
duty is to declare this clearly and directly.
Whether there be any evidence is a question
for the judge; whether there be sufficient evi-
dence is for the jury.

Company of Carpenters v. Hayviood, 1 Doug..
885; Jmoeay. Parr, 18 C. B., 9(M).

The court errpd in refusing to instruct the
jury as requested, and in submitting the decis-
ion of questiouR when there was no evidence to
raise them. The defendants having introduced
their title, the plaintiff proposed to produce
testimony of a variety of circumstanoeB, to show
that the possession of the property by Von
Roeder was collusive and fraudulent, and that
the deed was made to him with the intent to
defraud and delay the creditors of the Gemum
Emigration Company, who were insolvent.

The court overruled this attempt of the

{>laintiff , and excluded all testimony to estab
ish fraud or collusion. The Statute of the iSth
Elizabeth concerning Fraudulent Conveyanoes
has been adopted in Texas. The Supreme
Court of that State have decided that when i
deed is a mere pretense, collusively devised,
and the parties do not intend other than an «
tensible change of the property, the property
does not pass as to creditors ; and even when
the parties intend an irrevocable dispoeition of
the property, but the conveyance has been
made with the intent to defraud creditors, that
the conveyance is void.

Baldwin y. Peet, 22 Tex., 708.

This decision conforms to the current doc-
trine relative to the just construction of this
statute. The plaintili proposed to prove that
the deed to Von Roeder was fraudulent within
the meaning of the Act. The bills and notes
upon which the judgment was founded were
filed as part of the record, and are certified with
the ludgment of the district court.

These show that the plaintiffs in the suit
were creditors at the date of the conve^mce to
Von Roeder, and within the protection of the
Statute of Frauds.

Without considering the particular testimooj
offered, it is our opinion that the district court
erred in refusing to receive evidence to impesdi
the deed for fraud.

The plaintiff o^ected to the introduction of
the deed to Von Roeder as testimony, because
it was not shown that there was such a Corpo-
ration as the G^erman Association, and becave
a letter of attorney to Dressell was not ei-
hibited. The deed was admissible, because it
appeared that the defendants held their pot-

1880.

OuB T. TiDB Watbb Gakal Co.

257-264

session under it. But whether it was suf-
ficient evidence of title in the Qerman Dmi-
gration Company, or of transfer to the defend-
ants» were questions which it was competent
to the court to determine in its instructions to
the Jury. It appears from the charge that the
decision of the court was favorable to the
plaintiff. He. consequently, has no cause for
complaint upon his exceptions to the compe-
tency of the evidence.

For (he errors we haw noticed, the judgment
of the dieiriet court is reversed, and the cause re-
mandedforfurther proceedings.

Cited-^ U. Sm (80 Wall.), 168.

ROBERT QUE. Appt,,

tj.

THE TIDE WATER CANAL COMPANY.

(See S. C, 24 How., 867-884.)

I^ranehise cannot be sold on execution — remedy
of single creditor of corporation, to sell its prop-
erty and franchises, is in chancery.

A fraooblse being aD inoorporeal hereditament,
cannot, upon the settled principles of the common
law, be seized under a>l^ /acios.

It would be against the principles of equitv to
allow a flinffle creditor to destroy the value of the
property of the stockholders, by dlsseverinar from
the franchise, property which was easentiaTto its
useful existence.

If the appellant has a right to enforce the sale of
the whole property, including the franchise, his
remedy 1b in a court of chancery, where the rights
and priorities of all the creditors may be considered
and protected«and the property of the Corporation
disposed of to th« best advantage, for the benefit
of all concerned.

A court of common law, from the nature of its
Jurisdiction and modes of proceeding, is Incapable
of acoomplishing this object.

The circuit court was right in granting an in-
junction against the sale.

Argued Jan. 9, 1861. Decided Jan. 21, 1861,

APPEAL from the Circuit Court of the United
States for the Southern District of Siaryland.

Que, the appellant, having, on request, fur-
nished work and materials for the construc-
tion of the tide water canal, recovered a Judg-
ment against the Company on the 12th of Nov
ember, 1849. A scire fadas to revive this Judg-
ment was sued out Nov. 1, 1856, and result^
in tijiat on the first Sionday of April, 1856, and
thereupon nflerifadas issued upon the Judg-
ment under which the Marshal of the District
of Maryland levied upon and advertised for sale
certain land lyin^ around the canal basin and
other property which, by agreement, is to be
taken as the whole property of the Company in
the State of Maryland.

To enjoin this sale, the Company filed its bill
on the eqaity side of the court below, and an
injunction was issued. Appellant put in his
answer, and upon final hearing the injunction
was made perpetual.

From this decree the present appeal is pros-
ecuted.

The case further appears in the opinion of
the court.

Messrs. J, Mmsoii Cajnpbell and P. Me-
Itfaa^hlin, for appellants.

After discussing certain questions not passed

See 94 How.

upon by the court, the counsel said : The last
point is, whether the canal, from its peculiar
character, with its appurtenances, can be taken
in execution. It will be observed that the
agreement admits that what has been levied on
is not a part of the Company's property, but
the whole of it, and the inquiry, therefore, is not
as to any attempt to break up the work by de-
taching a fraction from the rest, but to sell it
as a unit, it will be further observed that the
Act of 1825, ch. 180, which defines the extent
of the Company's powers and privileges in its
18th section, authorizing it to procure the
necessary land for the canal ana its works,
either by agreement or condemnation, declares
that the Company shall be seised of such land
as of an absolute estate in perpetuity, or with
such less quantity and duration of interest as
may be required; and that bv the deed of Dec.
28, 1841, the land levied on has been acquired
and is held in fee, because the words of con-
veyance necessarily so import.

The question, then, is, whether land held in
fee by a company for a canal and its appurte-
nances can be seized and sold, not by piece-
meal, but so that the purchaser will take the
land with the entire improvement as it stands.

See Tippets v. Walker, 4 Mass., 596; 18 Serg.
&R.. 212; Leedomy. Plymouth R. R. Ch., 5
Watts & S.. 265; SusqueJuinnah Can. Go. v.
Bonham, 9 Watts & S., 27; Macon R. R. Go. v.
Parker, 9 Ga.. 894; Seymour v. MUford and
ChU. Turnpike Co., 10 Ohio, 476; 5 B. Mon., 1;
Ooe V. Hart, before Mr. Justice 'iicL&Boi, 6 Am.
L. Reg., 42; State v. Rives, 5 Ire.. 297; Arthur
V. Oomm. ib R. R. Bank, 9 Sm. & M., 429.

The differing views in these cases make it
difficult to say that there is any settled rule at
common law, and throw us back on principle;
and, so considered, it seems hard to escape the
conclusion, that as, after all, a corporation is
merely placed on a level with individuals, it
cannot hold its property exempt from the pay-
ment of its debts. But, of course, a purchaser
would take, not the corporate franchise, but
the estate of the corporation in the land, and
would take that estate of course as the corpora-
tion held it. Holding it in this case on the
condition of allowing the public to use the
canal on payment of certain fixed tolls, the
same user on the terms would continue to exist
after the sale as before.

1825. ch. 180. sec. 12.

Perhaps, however, the true view in which to
regard this case is. to look at it as controlled
by the law of Maryland and the analogies of
that law. The element, which elsewhere seems
to settle that a public improvement cannot be
sold on execution, is its inalienability. If the
Legislature will allow a voluntary assignment,
the presumption of a prohibition against in-
voluntary alienation falls to the ground. Act
of Maryland of 1885, ch. 856, sec. 5, authorized
the Company to raise money by a loan, and the
court of appeals of that State in Susq. Bridge
and Banking Go. v. Gen. Ins. Go., 8 Md., 811,
decided it to be the law of Maryland, that the
power in a corporation to borrow, carried with
ft the power to mortgage. But a power to
mortgage necessarily involves a sale as a possible
result; and if, therefore, in the present instance,
the General Assembly of Maryland have au-
thorized the Company to part with its land and

085

357-264

BXTFBEMB COUBT OF THB UlOTBD StATBB

Dec,

canal, it cannot be said that any public policy
forbids a sale on execution.

Mr. George W. Dobbin« for appellee:

The property lieyed upon is not properly the
sublect of a levy and sale under 9kfi&nfacM».

The levy was made on the locks of the canal,
its toll -house or collector's office, and the lands
surrounding the outlet locks, necessary to the
uses and working of the canal. It must, there-
fore, be something other than the canal itself,
and it is obviously intended to apply to that
part of the thing levied upon which is not visi-
bly a part of the canal ;|that is, the land which
the marshal in his levy calls wharf property
and building lots, &c., all of which are admit-
ted to be necessary for the uses and workings
of the Tide Water Canal.

The appellee will contend that it possesses
onl^ an easement acquired for the purposes of
its incorporation, connected with the franchise
of taking toll from the public for the use of
that easement, and that the said easement and
franchise are not subject to levy and sale under
ayidn/ockM/

AiMnant v. New Alexandria and Pittsburg
Turnpike Co., 18 Serg. & R, 210; Leedam v.
PlyrMniih R. B. Co., 5 Watts & S., 265; Sue-
quehannak Can. Co. v. Bon?iam, 0 Watts & 6.,
27; Seymour Y. MUfard eft Chit. T. R. Co., 10
Ohio, 476; WinehMier and Lex. Turn. Co. v.
Yimont, 5 B. Mon., 1; Coe v. Hart, 6 Am. L.
Reg., 41-42: Ludlow v. Hurd, 6 Km. L.
Reg., 602; Tipp^ v. Walker, 4 Mass., 596;
Maean B R. Co. v. Parker, 9 Ga., 877;

That even if a portion of the property levied
upon is liable to sale, the levy havmg blended
it with that which is not liable, is vmd for the
whole.

Ammant v. New Alexandria and Pittrinirg
Tnmpike Co., 18 Serg. & R., 210.

Mr. ChitfJuetiee Taney delivered the opin-
ion of the court:

It appears from the record in this case that a
Judgment was obtained by Robert Gue, the ap-
pellant, against the Tide Water Canal Com-
pany, in the Circuit Court of the United States
for the District of Maryland, upon which he
issued A fieri facias, and the marshal seized and
advertised for sale a house and lot, sundry
canal locks, a wharf, and sundry other lots; all
of which property, it is admitted, belonged to
to the Canal Company in fee.

The Canal Company thereupon filed their bill
in the circuit court, praying an injunction to
prohibit the sale of this property under thefieri
facias. The injunction was granted, and after-
wards, on final hearing, maoe perpetual. And
from Uiis decree the present appeal was taken.

The Tide Water Canal is a public improve-
ment situated in the State of Maryland, and
constructed and owned by a Joint stock Com-
pany chartered by the State of Maryland for
that purpose. The canal extends from Havre
de Grace,in Maryland, to the Pennsylvania line;
and it is admitted that the property levied on is
necessary for the uses and working of the canal.

Upon the matters alleged in the bill and an-
swer, several questions of much interest and
importance have been raised by the respective

Sirties and discussed in the argumfint here,
ut we do not think it necessary to decide
them, nor to refer to them particularly, because,

if it should be held that this property is liable
to be sold hj a iudidal proceeding for the pey-
ment of this debt, yet it wouM be aninst
equity and unjust to the other crktitora of Uie
Corppration, and to the corporators who own
the stock, to suffer the property levied on to be
sold under this^./a. and, consequently, the cir-
cuit court was right in granting the injunction.

The Tide Water Canal is a great thorough-
fare of trade, through which a large portion of
the products of the vast region of country bor-
dering on the Susquehanna River usuAlly
passes, in order to reach tide water and a market.
The whole value of it to the stockholders con-
sists in a franchise of taking toll on boats pass-
ing through it, according to the rates granted
and prescribed in the Act of Assembly whi<^
created the Corporation. The property seized
by the marshal is, of itself, of scarcely any value
apart from the franchise of taking toll, with
which it connected, in the hands of the Com-
pany, and if sold under this fieri fadae with-
out the franchise, would bring scarcely any-
thing; but would yet, as it is essential to the
working of the canal, render the property of
the Company in the franchise, now so valuable
and productive, utterly valueless.

Kow, it is very clear that the franchise or
right to take toll on boats going through the
canal would not pass to the purchaser under
this execution. The franchise being an incor-
poreal hereditament, cannot, upon the settled
principles of the common law, be seized under
Afierifadas. If it can be done- in any of the
States, it must be under a statutory provision of
the State ;'and there is no statute of Maryland
changing the common law in this respect. In-
deed, the marshal's return and the agreement
of the parties shows it was not seized, and con-
sequently, if the sale had taken place, the re-
sult would have been to destroy utterly the
value of the property owned by the Company,
while the creditor himself would,inoet probably,
realize scarcely anything from these useless
canal locks, and lots adjoining them.

The record and proceedings before im show
that there were other creditors of the Corpora-
tion to a large amount, some of whom loaned
money to carry on the enterprise. And it
woula be against the principles of equity to al-
low a single creditor to destroy a fund to which
other creditors had a right to look for payment,
and equally against the principles of equity to
permit him to destroy the value of the prop*
erty of the stockholders, by dissevering from
the franchise, property which was essential to
its useful existence.

In this view of the subject, the court do not
deem it proper to express any opinion as to the
right to this creditor, in some other form of
Judicial proceeding, to compel the sale of the
whole property of the Corporation, including
the franchise, for the payment of his debt
Nor do we mean to express any opinion as to
the validity or operation of the d^ds of trust
and Acts of Assembly of the State of Maryland,
referred to in the proceedings. If the appe-
lant has a right to enforce the sale of the wIm^
property, including the franchise, his remedy
is in a court of chancery, where the ri^ts and
priorities of all the creditors may be considered
and protected, and the property of the Oorpon-
tion dispoeed of to the best adyantage» for the

laeo.

Frobt'b Lsbskb v. Fbobtbubg Coal Co.

278-284

benefit of all concerned. A court of common
law, from the nature of its jorifldictlon and
modes of proceeding, is incapable of accom-
plishing this object; and the circuit court was
right in granting the if^unciion, and its decree
is, therefore, affirmed.

Cited-66U. 8._C84 How.), 480 : 78 U. 8. (6 Wall.),
758 ; 88 U. 8. (21 Wall.), 888 ; 10ft U. 8., flO ; 2 Flippin,
317; i CUff.,607; 28 N. J. Bq., 288; 20N.T. Bq^
326 : 88 Am. Sep., 126 (61 Iowa, 180; 36 Am. Bep., fiOO
(88N.C..60).

THE LESSEE OF ISAIAH FROST kt al.,

Plffs. in Er,,

THE FROSTBURG COAL COMPANY.

(See 8. C, 24 How., 278-284.)

Powers of corporalitmr— person de<Uing with^can-
not set up irregularities in organieatum.

The defendants were made a Corporation by the
charter, the persons named in it constituting' the
corporate body, clothed with the powers and privi-
leires conferred upon it, and were capable of takinflr
and holding real estate.

If some Irregularities occured in the organiiation
of the Company, Inasmuch as no act made a condi-
tion precedent to the existence of the Corporation
has been omitted, or its non-performance shown, a
party dealing with the Company is not permitted to
eet up the irregularity.

The courts are bound to regard it as a Corporation,
eo far as third persons are concerned, until It is dis-
solved by a Judicial proceeding on behalf of the
gt>vemment that created it.

Argued Jan. 11, 1861. Decided Jan. 21, 1861.

IN ERROR to the Circuit Court of the United
States for the District of Maryland.

This was an action of enjectment brought in
the court below, by the plaintiffs in error,
against the present defendant in error.

The trial resulted in a verdict for the defend-
ant, and the plaintiff brought the case to this
•court by writ of error.

The case further appears in the opinion of the
court

Messrs. Beidaanin Howard Shaekel-
ibrdt Henry winter Davist and J. B.
Partrid^9 for plantiffs in error:

The plaintiffs in error will insist:

1. That the Act of Assembly of Feb. 24, 1845,
did not create the Froetburg Coal Company a
body corporate.

3. The proceeding of the parties named in
that Act have not sufficed in law to constitute
them a body corporate under the law of Mary-
land.

8. That there was, therefore, no corporate
body in law competent to take by the name of
the Frostburg Coal Company on the 18th
March, 1845, nor at any time thereafter during
the life of Isaiah Frost, the ancestor of plantifT
and therefore,

4. That the instrument in writing relied on
by the defendants for their title, purporting to
be a deed from said Isaiah Frost to the Frost-
burg Coal Company, dated 18th March, 1845,
was never operative as a deed, but was void for
want of a grantee competent to take.

5. That neither the said Isaiah Frost nor the

glantiffs, are or can be estopped by said deed,or
y any act mentioned in the record from claim-
ing the lands in controversy.
The existence of the Company was not proved

Bee 24 How.

by the subscription and distribution of stock
and organization in pursuance of the law. Sev-
eral things are here required to be done.

1. The capital stock of 5,000 shares at $100
each must all be taken.

2. The lands and minerals of Messrs. Frost
and McKaig were to be subscribed.

8. Other persons were to be associated with
them by subscriptions of stock payable in
money.

4. it requires more than five stockholders te
organize. ^

6. The stock must not be subscribed for or
distributed in illegal proportions.

It is a well settled principle of the law of cor-
porations that organization must be in pursuance
of the charter.

A charier is a voluntary ^rant from the Leg-
islature, imposing no obligation unless acoeptea,
and leaving it discretionary with the inuvid-
uals interested to organize or not. As a con-
dition precedent to the existence of a corpora
tion,it must organize in pursuance of the terms
of its charter.

An incorporated company is precisely suoh
as the incorporation Act makes ii, derives its
power from that Act, is capable of exereising
them only in the manner authorized by it.

2 Cranch,126; 24 Barb., 514; 2 McLean, 202.

Conditions precedent must be fairly complied
with.

Redf. Rail, 7,8; Ang. & Ames, Corp., sec.8Y.

Where a given amount of capital stock is re-
<;[uired to be used or paid in before the corpora-
tion goes into operation, this is to be regwled
as an indispensable condition precedent.

Redf. Rail., 8, 10. 80; 89 Me., 571 ; 10 Wend.,
266; 89 Me.. 571, 587.

From the nature of things, the artificial per-
son must be created before it can be capable of
taking anything.

When the corporation is to be brought inte
existence by some future acts of the corporators,
the franchises remain in abeyance undl sucdi
acts are done.
' 4Wheat.,5l8.

The counsel then reviewed the evidenoe,and
endeavored to show that the corporators in this
case had not perfected an orffanization in accord-
ance with the charter and the general law.

Messrs. ^t%OT^ A. Pearre and WUliajn
Pricet fof defendant in error:

There was a corporate body, the Frostburg
Coal Company in existence on the 18th of March,
1845,capable of taking this land by deed. This
Corporation is complete as a corporate body by
the terms of the charter itself, as soon as accept-
ed by the corporators.

Ang. & Ames, Corp., 475-476, sees. 2 and 8;
16 Mass.,04; Vermont Cen. R. R. Co. v. Clayes,
21 Vt., 30.

There is nothing in the charter which prevents
the Corporation from having an existence until
anv given amount of stock is subscribed, either
in land or money, and in the absence of such a
restriction, ma^ go into operation before l^e
whole or any given quantity of the capital stock
is subscribed.

Ang. & Ames, Corp., Ill, 112, ch. 5, sec. 1;
1 Pet. 46.

Even if the Act of 1888. ch, 267, applies, and
any of the causes of forfeiture declared by the
15th section of that Act have occurred, yet these

687

278-284

BUPRBMB COUBT OF THB UnITBD StaTBS.

Dbc. Tkbm

are causes for which the State herself » through
her judicial tribunals, may declare the charter
forfeited. The Company was not notified by an
action of ejectment at the suit of private per-
sons, to be prepared to show it has not violated
its charter. Until the state forfeits the charter,
the franchise continues.

1 Md., 558; 10 Qill & J., 846; 9 Oill 404:
4 Qili & J., 1; 6 Mass.. 280; Ang. & Ames,
CJorp., 746.

To prove the existence of a corporation, it is
onlv necessary to prove the charter and user
under it.

Ang. & Ames, 572, ch. 18, sec. 2; see, also,
10 Wend.. 276; 2 Gill & J., 478.

Mr. JuBtice Nelson delivered the opinion of
the court:

This is a writ of error to the Circuit Court
of the United States for the District of Mary-
land.

The action in the court below was an eject-
ment brought by the heirs of Isaiah Frost, to re-
cover the possession of a tract of land situated
in the County of Allegany, Maryland. The de-
fense set up was a conveyance of the land by
their ancestor to the defendants. The only Ques-
tion in the case is, whether or not the Frostburff
Coal Company was capable of taking and hold-
ing real estate at the date of the deed, the 13th
March, 1845.

The court chareed the jury,if they found that
Mechack Frust, Isaiah Frost. Thomas J. Mc-
Eaig and WilUam W. McKaig, the parties
named in the Act of Incorporation of 1845, ac-
cepted the charter, and proceeded to act as a
corporate body under it, by the name of the
Frostburg Coal Company, opened their coal
mines, transported the coal to market, borrowed
money on the credit of the Company, and made
large and costly improvements on the lands in
controversy, during all which time Isaiah Frost,
the ancestor, acted as one of the directors; and
further found, that the said Frost executed and
delivered to the Company the deed of the ISth
March. 1845, given in evidence, they must find
a verdict for the defendants.

The Act of Incorporation, which was passed
FebnuuT 24,1845,provided that Mechack Frost.
Isaiah Frost, Thomas J. McKaig, and William
W. McEoug, and such other persons as may be
associated with them in the manner afterwards
provided, shall be, and they are hereby incorpo-
rated and made a body politic and corporate, by
the name of the Frostburg Coal Company, and
by that name shall have succession. &c. , con-
ferring the usual corporate power for the man-
ufacture of iron, and mining of coal, and for
transporting the same to market; and among
others, the power to purchase and hold all such
property, r^, personal and mixed, as the Com-
pany may require for the purposes aforesaid.

Tlie 2d section provided, that the capital
stock of the Company should consist of five
thousand shares of $100 each, for which the
lands and mines of Mechack Frost, Isaiah Frost,
Thomas J. McKaig and William W. McKaig,
on one part, and those who may associate with
them and constitute the aforesaid subscription
for stuck, payable in monev, on the other pari.

The Sd section provided, that the subscrip-
tions to the capital stock should be made at such
places, and in such manner, as should be desig-

e88

nated by the four persons above named, and
that the shareholders of one or more shaivs of
stock should be members of the (^rporalioD,
and entitled to one vote for each share so held;
and making the shares assignable and transfer-
able, as may be provided in the by-laws of the
Company.

The 4th section provided, that the affairs
of the Company should be managed by a presi-
dent and four directors, to be chosen by the
stockholders, to serve one vear, and ttil others
shall be elected; and until the first election of
directors shall be held, the said Mechack Frost,
Isaiah Frost, Thomas J. McKaig, and William
W. McKaig, shall have full power and authority
to exercise all the corporate powers of the said
Company, &c.

The 5th section provided, that a general
meeting of the stockholders should be held as
soon as the Company is organized, and annually
thereafter, on the first Monday of June in each
year, for the election of directors, and to con-
sult upon the business of the Company.

On the 12th March, 1845, the assoduatea met
in pursuance of the authority given in the 8d
section of the Act, at which meeting the whole
number of ^ares, constituting the capital aSo»,
were subscribed, imd the Company proceeded
to the election of the president and four direct-
ors, the number required by the charter for the
ensuing year; and at the same time, directed
that the secretary should procure deeds to
the Company for the lands, which should con-
stitute part of the capital stock. And on the
21st of the month, the Board met, and provided
for the isstiing of certificates of the capital stock
to each stockholder.

It was in pursuance of the resolution of the
12th March, that the deed of Isaiah Frnat. the
ancestor of the lessors of the plaintiff, was exe-
cuted. This deed contained some four hundred
and sixty-four acres of land, which, together
with several parcels conveyed by Mechack
Frost,another of the stockholders, dated on the
same day, and adjoining the former tract, em-
braced me coal mines of the Company for the
workinff of which it was incorporated.

The Company immediately commenced prep-
arations for opening the mines, and for trans-
porting the coal to market, by constructing rail
and tram roads leading into the mines,erecting
buildings for the accommodation of the work-
men, together with other necessanr improve-
ments, at an expense of some $15,000; also, a
large amount of coal had been taken out of the
mines, and sent to the market; all of whi<^ was
done during the lifetime of Isaiah Frost, and
while he was one of the most active and efi9cient
directors, and all or nearly all of said fixtures
and improvements had been made upon the
parcel of land in question, and for which he had
received stock. He was the largest stockholder
but one in the Company, and had dealt in tbe
stock, by pledging it for money borrowed.

As we have already said, the main groond le^
lied upon,on behalf of the heirs, to avoid thedeed
to the defendants, is the failure to organise under
the charter,so as to constitute them a corporatioii
capable of taking and holding real estate. It i»
supposed that there are some conditions preced-
ent to the existence of the corporation wluch
have not been performed, and that the Act. of
its own force.did not constitute them a ooipc»-

66 U.S.

IbiK),

Phuxips v. Pagb.

164-16^

rate body. But a slight reference to the charter
viiW show that the position is a mistaken one.
The 1st section declares, that the four persons,
and such others .as may be associated with them,
shall be, and are hereby incorporated and made
a body politic and Corporate, by the name of
the Frostburg Coal Company; and then confers
upon it the usual powers belonging to a corpora-
tion, and among others, to purchase and hold
real estate for the purposes of the Company;
and in the 4th section declares, that until the
first election of directors shall 1^ held, the four
persons named shall have full power and author-
ity to exercise all the corporate powers of the
Company. The charter took effect immediately
on its acceptance by the persons named, and
the subsequent steps, such as the subscription
of the stock, procurement of the coal lands,
elections of the directors, of the president and
secretary, passing bylaws,&c.,were steps taken
in perfecting the organization, and enabling it
to use the powers and privileges conferred lor
the purposes for which they were granted.

It was supposed, in the argument, that the
words, " and such other persons as may be as-
sociated," &c., in connection with the four per-
sons named in the 1st section, imported that
other persons must be associated with the four
before the charter could take effect; but, if any
doubt could be raised upon the language of the
1st section, the 4th removes it, as there the
power and authority to exercise all the corpo-
rate powers of the Company is expressly con-
ferred upon the four^ersons, until the first
election of directors. These corporate powers
are not only conferred upon the four persons
named, but are continued until their successors
are appointed to take their places. The true
meaning of the words referred to in the 1st
section probably is, that a privilege was intend-
ed to be given to the Company of uniting other
associates with the four in the enterprise, if they
so elected.

Tl\e same observation is also applicable to the
2d section, which declares that the capital stock
bhall consist of 6,000 shares of $100 each, of
which the lands of the four persons named in
the 1st section may be one part, and those who
may associate with them, and constitute the
Corporation by subscription for stock, payable
in money, the other. The charter does not pro-
vide that any ffiven amount or portion of the
stock shall be In land, or in money, and the
true construction probably is, that the whole of
it may have been payable in money.

The language of the section would seem to
confer upon the four persons the privilege of
paying their shares of stock by the conveyance
of land, rather than imposing it upon them as
an obligation. This is the construction of the
charter under which the Company has acted,as
the subscription for the shares is a moneyed
subscription. The land was purchased from two
of the principal subscribers, by the Company, at
a valuation which was applicable to their sub-
scriptions. They would be liable to the Com-
pany for the balance of their stock, as would the
other subscribers for the whole amount of theirs.

The subscription of the stock was in form for
a given number of shares ; but as each share was
fixed by the charter at $100, the amount each
was liable for to the Company was readily as-
certained,and it is well settled that a subscription

See 24 How.

in this form is as obligatory as if had been in
money. 14 Wend., 20.

The 0th section of the charter provides, that
the Corporation shall be subject to all the re-
strictions imposed by the Gleneral Act of 1888,
regulating incorporations for manufacturing
and mining companies. The 15th section of
this Act provides that when over four fifths of
the capital stock of the Company to which the
Act applies shall become concentrated, by pur-
chase or otherwise, in the hands of less than
five persons, &c., all the corporate powers and
priviie^ granted shall cease and determine.
And it is insisted, that the stock of this Com-
pany, at the time of its organization, was held
in violation of this section of the general Act.
Although the 9th section of the charter sub-
jected the Company of the general Act, yet the
provision is to be constru^ as subject onl^,
when not inconsistent with the express provis-
ions of the charter: and in this view, the better
opinion, we think, is, that this four fifths pro-
vision does not apply. But whether it does or
not, it is unimportant to determine: for, conced-
ing that it does, a private party cannot take ad-
vantage of the forfeiture. That is a question for
the sovereign power, which may waive it, or
enforce it, at its pleasure. 9 Wend.. 882; 4
Den., 897.

Without pursuing the case further, the main
ground upon whicn we intend to place the
judgment of the court is, that the defendants
were made a Corporation by the charter, the
persons named in it constituting the corporate
body, clothed with the powers and privileges
conferred upon it, and were capable of taking
and holding real estate; and second, even if it
were otherwise.and some irregularities occurred
in the organization of the Company, inasmuch
as no act made a condition precedent to the
existence of the Corporation has been omitted,
or its non-performance shown, a party dealing
with the Company is not permitted to set up
the irregularity. The courts are bound to re-
gard it as a Corporation,so far as third persons
are concerned, until it is dissolved by a judicial
proceeding on behalf of the government that
created it. Angel 1 & Ames, sec. 774, and cases
referred to.

Judfftn&nt affirmed,

Cited-«1 n. S. (U Wall;, 390 ; 6 Saw.. 47.

WILLIAM H. PHILLIPS, Plff, in Eh-.,

«.

GEORGE PAGE.

(See 8. C..24 How., 164-168.)

Patents, when daiin is not new — notice of wit-
nesses.

Where there is a defect tmth in the speolflcation
and in the olaim for a patent, and the former does
not distinguish the new parts from the old, and the
latter, instead of claiminir the old parts, should have
excluded them, and claimed the new, by which the
old were adapted to the new use, producing' the
new result; held, there is nothing new in thia
combination.

In defendant's notice of witnesses, notice of the
time when the person possessed the knowledge of
use of the invention is not required ; the name of
the person, and his residence, and the place where
it has been used, are sufficient.

e8»

164-168

BUFBEMB COUBT OF THB OnITBD IJTATBB

Dbc. Tbsm,

Submitted Dec. 17, 1800, Argued Jan. £8, 1861,

IN ERROR to the Circuit Court of the United
States for the Northern District of New
York.

This was an action brought by Gkorge Page
against William H. Phillips in the court below,
-for an alleged infringement of certain letters
patent granted to said Page, July 16. 1841, for a
new and useful improvement in the circular
saw mill.

The trial resulted in a verdict and Judgment
for the plaintiJBF, and the defendant brought the
case to this court by writ of error.

The case further appears in the opinion of
the court.

Mr. Charles M. Keller, for plaintiff in
«rror.

Mesars. Reverdy Johnson and John H.
B. Latrobe, for the defejidant in error.

Mr. JuiOee Nelson delivered the opinion of
the court:

This is a writ of error to the Circuit Court for
the Northern District of New York.

The suit was brought in the court below by
Page, the defendant in error, to recover dam-
ages for the infringement of a patent for cer-
tain improvements In the construction of the
" portable circular saw-mill. After describing
minutely the different parts, and manner of con-
structing the machine, with drawings annexed,
and idso the use and operation of the respective
parts, the patentee sets forth the particular por-
tion of the construction which he claims as his
own, as follows:

'*! claim the manner of affixing and guiding
the circular saw, by allowing end play to its
shaft, in combination with the means of guid-
ing it (the saw) by friction rollers, embracing it
near its periphery, so as to leave its center en-
tirely unchecked laterally. I do not claim the
use of friction rollers, embracing and guiding
th6 edge of a circular saw, as these have been
previously used for that purpose: but I limit
my claim to their use, in combination with a
saw having free lateral play at its center."

Evidence was given on the part of the defend-
ant, in the course of the trial, tending to prove
that, long before the time of granting the plaint-
iff's patent, and before the date of his inven-
tion, machines for sawing shineles from short
l)locks of timber, and sawing lath and blinds
for windows, with circular saws, varying in size
from ten to thirty inches in diameter, had been
in public use; in which machines the circular
saw was guided bv means of guide pins, em-
bracing it (the saw) near the periphery, and its
shaft having end play, and being entirely un-
checked laterally; but it did not appear that
such machines had been used in a saw-mill for
sawing timber, or in a mill, or a machine of a
size or character adapted to the sawing of or-
dinary logs, or other large unsawed timbers.

When the evidence closed, the defendant's
counsel prated the court to charge the iury,
that accordmg to the true construction of the
patent, the clum is for the manner of affixine
and guiding the circular saw, by allowing end
play to its shaft, in combination with the means
of guiding it by friction rollers, embracing it
near its periphe^, so as to leave its center en-
tirely undiecked laterally.

But the court refused so to charge, and in-

640

structed the Jury that the claim was limited to
the manner of affixing and guiding the circular
saw, by allowing end play to its shaft, in com-
bination with the means of guiding it by fric-
tion rollers, embracing it near its periphery, so
as to leave its center unchecked laterally, in a
saw mill capable of being applied to the sawing
of ordinary logs.

And in refusing anothw prayer, the oooit
charged, that in order to defeat the plalndff*s
patent by the use of prior machines of this con-
struction, they must have been machines for the
purposes of sawing in mills of a size and char-
acter adapted to the sawing of ordinary logs.

There can be no doubt but that the improve-
ments of the patentee in the manner of coa-
structing the portable circular saw-mill described
in his specification were designed to adapt it to
the sawing of logs in a saw-mill, and whidi
could be carried from place to place, and put
into operation by the use of horse power; and
it may very well be, if he had set up in his
claim the improvements or narticular c^iangss
in the construction of the ola machine, so as to
enable him to adapt it to the new use. and one
to which the old had not and could not have
been applied without these changes, the patent
might have been sustained. The utility is not
questioned, and, for aught there appears in tiie
case, such improvements were before unknown.
and the circular saw-mill for sawing logs, the
first put in successful operation .

But no such claim is SPt up by the patentee:
nor does he distin^ish in the description of the
parts of the machme, nor in any other way, tiie
old from the new, or those parts which he ha»
invented or added in its aaaptation to the use
of sawing logs, not before found in the old ma-
chine for sawing shingles, blinds for windows.
and other light materials. On the contrary, his
claim is for the precise organization of the oM
machine, namely: the manner of affixing and
guiding the circular saw, by allowing endp^y
to its shaft, in combination with the means of
guiding it by friction rollers, embracing it near
to its periphery, so as to leave its center entire-
ly unchecked laterally. There is nothing new
in this combination. It had long been Imowis
and used in the circular saw for sawing timbers
of smaller dimensions than an ordinary saw- log.
Nor does the enlargement of the ornnizstioB
of the machine compared with the old one (the
same being five feet in diameter, and the other
parts corresponding) afford any ground, in the
sense of the patent law, for a patent. This is
done every day by the ordinary mechanic in
making a wcrking machine from the patent
model.

The patentee in the present case must cany
his improvements farther, in order to reach in-
vention ; he must contrive the means of sdspt-
ing the enlarged old organization to the new
use, namely : me sawing of saw-logB« and ckinu
not the old parts, but the new devioe, by wludi
he has produced the new results.

The learned Judge, by interpolating the new
purpose of the improvement, namely: the saw-
ing of logs, not only inserted what was not spec^
ifled in the claim; out, if it had been, it woakl
not have helped out the difficulty, as it was in
effect, upon the construction giren, simply ap
plying an old organization to a new use, which
IS not a patentable subject

«o I7.&

1800.

Hall v. Papin.

132-147

The defect here is both in the specification
mnd in the claim. The former does not distin-
guish the new parts from the old, nor is there
anything in the specification by which they can
be distinguished ; and the latter, instead of claim-
ing the old parts, should have excluded them,
and claimed the new by which the old were adap-
ted to the new use, producing the new result.

We are also of opinion that the court below
err^ in rejecting the evidence of the witness as
to the prior knowledge and use of the improve-
ment of the patentee.

The 15th section of the Patent Law provides,
that when the defendant relies in his defense
on the fact of a previous invention, knowl-
edge, or use of the thing patented, he shall give
notice of &e names and places of residence of
those whom he intends to prove possessed the
prior knowledge, and where the same was used.

In this case the notice stated that Hiram
Davis, who resides at Fitchburg, Massachu-
setts, had knowledge of the said improvement,
and of the use thereof at thai place, during the
years 1886, 1887, 1838, &c., and that he resided
there.

The court, on objection, refused to allow a
Tvitness to prove the use of the improvement,
by Davis prior to the year 1836 at Fitchburg,
holding that the notice limited it within that
time.

Notice of the time when the person possessed
the knowledge or use of the invention is not re-
quired by the Act; the name of the person, and
of his place of residence, and the place where it
has been used, are sufficient.

The time, therefore, was not material; nor
could it have misled the plaintiff, as he had the
name and place of residence of the person, and
also the place where the improvement had been
used.

With this information of the nature and
ground of the defense, the plaintiff was in pos-
session of all the knowledge enabling him to
make the necessary preparation to rebut, that
the defendant possessed to sustain it.

Judgtnent reverted and venire.

Cited-76 V, 8^8 Wall.), 4SM; 76 U. 8. (9 Wall.).
740; 78 D. 8. (11 Wall.), 648; 90 0. 8. (28 Wall.), 563;
94 U.8., 198; 101 U. 8., 492 ; 1 Cliff., 641,642 : 16Blatohf.,
138 ; 8 CUffn 667 ; 16 Pat. Off. Gaz., 174.

WILLIAM A. HALL, Plff. in Er.,

JOSEPH L. PAPIN.

(8ee 8. C. 24 How.. 131^147.)

PeariahU—Aet of March 3, 1823 — Survey necee-
saoTf to a titU'-only one daim eoiUdbe made.

The Act of 3d March, 1828, in refcard to the VII-
lafire of Peoria, can only embrace lots in the new
viliaflre or others appertainlDflr to It.

The first section of the Act gtLve to the claimant an
Incipient or inchoate riff ht to a lot, when, in con-
formity with the secona section of the Act, a sur-
vey had been made of the several lots reported by
the Keflrister, with a desifirnatlon or a platof the lot
oonflrmed and set apart to each claimant.

When that had been done, the claimant became a
confirmee under the Act, and his rlffht to the lot,
as between himself and the United States, was
complete.

The law was intended to gnnt the lot settled up-
on and improved, and no other land described as
an equivalant.

See 24 How. U. S., Book 16.

No location of the lots could be made after a
patent for them had been issued by the United
States. '

'1 he Inchoate li^ht of the claimant under the
Act,wa8 subject to a survey and designation before
it could be matured into a title.

Under the Act the claimant was to have one con-
firmation of *'a lot so settled and improved,"
which had been claimed and entered in the report
of the refiridter.

No claimant, thouorh he made several claims,
could, after having nad one of them confirmed,
transfer any right of property in the others to any
persons whatever.

No one could be confirmed in more than ten acres
of Peoria claims.

Argued Jan, 11, 1861, Decided Jan, 98, 1861.

I IT ERROR to the Circuit Court of the United
States for the Northern District of Illinois.

This was an action of ejectment commenced
in the court below, by the present defendant
in error.

The first trial resulted in a judgment for the
plaintiff. A new trial was ordered, and judg-
ment again entered for the plaintiff.

The defendant below brought the case to
this court by writ of error.

The case further appears in the opinion of
the court.

Mr, O. H. Browning^t for plaintiff in
error.

JfeMTS. Walter Merriman and M. Blair,
for the defendant.

Mr. Justice Wayne delivered the opinion of
the court:

This is a suit for the recovery of ten acres of
land, which is admitted by the parties to be a
part of the northwest quarter of section three,
in township eight, north; of range eight, east, of
the fourth principal meridan, in the district of
lands subject to sale, formerly at Springfield,
Illinois, and afterwards at Qumc^.

Upon the trial below, the plaintiff gave in
evidence: 1st, the Act of Congress of May 15,
1820(3 Stat, at L., 605), entitled, an Act for the
relief of the inhabitants of the Village of Peoria,
in the State of Illinois; 2d, the Act of 8d March,
1828 (8 Stat atL,,788);8d, the report of Edward
Coles, in the 8d vol. titale Papers, paee 421 ;
4th, the special and general plat and field notes
of the survey of the village, made May 11,
1887, approved September 1, 1841, and ap-
proved oy the surveyor of public lands in Illi-
nois and Missouri; 5th, the deed of lot 18 by
Bartholomew Fortier and his wife, Angelica,
to plaintiff, September 23, 1854; 6th, deposi-
tions showing that Angelica was the only rep-
resentative of Francis Willette, and that, when
she made her claim beford J. W. Coles, she
was the wife of Louis Pilette, and that she
married Fortier in 1838.

The defendant below, here the plaintiff in
error, introduced in evidence a patent from
the United States to Seth and Josiah Fulton,
dated March 18, 1837, a preemption certificate
of the same, laid July 11, 1888, and a convey-
ance by the Fultons to him of the land covered
by the patent dated the 11th July, 1888. The
patentees, Seth and Josiah Fulton, had lived
upon the quarter section for several years be-
fore their entry was made, and Hall, also, had
occupied the quarter section for some years be-
fore the Fultons sold to him. Also, a patent
from the United States to the representatives of
Francis Willette, for a lot which had been

641

182-147

SUFUAME COUBT OF THE UkITBD StaTXS.

Djsa T&BM,

claimed by them under the Act of the 8d March,
1828, and sundry depoeitions, which it is not
necessaiT for us to notice in this opinion.

The defendant in error, Joseph L. Papin,
claims the ten acres sued for in virtue of his
purchase from Bartholomew Fortier, and An-
gelica, his wife, she being the sole represent-
ative of her father, and had claimed the land
und^r the Act of Congress of the 15th May,
1820 (8 Stat, at Large. 605), and that of the 8d
March, 1828 (3 Stat, at Large. 786).

The first of these Acts declares that "every
person, or the legal representatives of any per-
son, who claims a lot or lots in the Village of
Peoria, in the State of Illinois, shall, on or be-
fore the first day of Octol)er next, deliver to
the Register of the Land Office for the District of
Edwardsville, a notice in writing of his oi her
claim, and it shall be the duty of the Register
to make to the Secretary of the Treasury a report
of all claims filed with him, with the substance
of the evidence in support thereof; and also
his opinion, and such remarks respecting the
claim as he may think proper to make; which
report, with a fist of claims which, in the opin-
ion of the Register, ought to be confirmed, shall
be laid by the Secretary of the Treasury before
Congress for their determination. " Under this
Act. claims were made by Louis Pilette in right
of his wife, Angelica, the daughter of Francis
WiJleite, and they appear in the Register's re-
port, dated the 10th November, 1820, entered
aslNos. 11, 12 and 18. That report, however,
was not finally acted upon by Congress until
the 8d March, 1823. (8 Stat, at L., 786). The
Ist section of that Act declares, '* there is here-
by granted to each of the French and Canadian
inhabitants, and other settlers of tbe Village of
Peoria, in the State of Illinois, whose claims
are contained in a report made by the Register
of the Land Office at Edwardsville, in pursu-
ance of the Act of Congress approved May 15,
1820 (8 Stat, at L., 605), and who had settled a
lot in the village aforesaid prior to the Ist day
of January. 1818, and who have not heretofore
received a confirmatory claim or donation of
any tract of land or village lot from the United
States, the lot so settled upon and improved,
where the same shall not exceed two acres;
and where the same shall exceed two acres,
every such claimant shall be confirmed in a
quantity not exceeding ten acres: Provided,
nothing in this Act contained shall be so con-
strued as to affect the right, if any such there
be, of any other person or persons to the said
lots, or any part of them, derived from the
United States, or kny other source whatever,
or be construed as a pledge on the part of the
United States to make good any deficiency oc-
casioned by any other interfering claim or
claims." And it was made the duty of the
Surveyor of the Public Lands of the United
States for that district, to cause a survey to be
made of the several lots, and to designate in a
plat thereof the lots confirmed and set apart to
each claimant, and forward the same to the
Secretary . of the Treasury, who shall cause
patents to be issued in favor of such claimants,
as in other cases.

The land sued for is described in the declar-
ation as an out- lot or field of ten acres, near the
old Village of Peoria, in the State of Illinois,
confirmed lo Louis Pilette in right of his wife,

042

Angelica, the daughter of the late FraDcis
Willette, by the Act of Congress of the 3d
March, 1828(8 Stat at L., 786),enUUed *' An Act
to confirm certain lots in the Village of Peoria, it
being claim No. IS of the report made hy the
Register of the Land OflSce at Edwardsville. in

Sursuance of an Act of Congress of the 15th
[ay, 1820" (8 Stat, at L., 605). The lot is
claimed in the report of the Register as an ouv
lot or field, containing fifteen or twenty ar-
pents of land, situated three-fourths of a mile
northeaswardly (northwestwardly) from the
Village of Peoria. There can be no uncertainty
whether the old or new village was meant, as
the survey establishes it to have been near the
old ; and in our consideration of the Act of the
3d March, 1823 (8 Stat, at L., 786). our ooncla-
sion is. that that Act can only embrace lots in
the new village, or others appertaining to it.

The old Village of Peoria was situated on the
northwest shore of Lake Peoria, about one mile
and a half above the lower extrenoity or out-
let of the lake. The village had been estab-
lished by Frenchmen at an early date, previous
to the recollection of any one. About the
years 1778. 1779, the first house was bntlt on
what was then called La Ville de Maillet, after-
wards the new Village of Peoria, and afterwards
known by the name of Fort Clark. It was
situated about one mile and a half below
the old village, immediately at the lower front
or outlet of the lake. This situation was pre-
ferred on account of the water being better
and the place more healthy than at the old
village. In consequence the inhabitants grad-
ually deserted the old village, and before the
years 1796, 1797. had entirely abandoned it,
and removed to the new village.

The inhabitants were generally Indian trad-
ers, hunters, and voyagers. Iney formed a
link of connection between the French residing
on the waters of the great lakes and the Missifr-
sippi River. From that happ^ facility of adapt-
ing themselves to their situation and associates
for which the French are so remarkable, the
inhabitants of Peoria generally lived in harmony
with their savage neighbors. But aboat the
year 1781, an apprehension of Indian hostilities
induced them to abandon the new village.
They returned to it, however, after the peace
of 1788, between England and the United States
and the powers which had engaged in our revo-
lutionary war, and continuS there until the
autumn of the year 1812. Then they were for-
cibly removed from it and their village de-
stroyed by a Captain Craig of the Dlinois Militia,
on the ground, it was said, that himself and hii
company had been fired upon in the night by
Indians, while at anchor in their boats befofv
the village, with whom Craig suspected the
villagers to be on too intimate and friend iy
terms. Craig and his companv were tn the
service of the United States. The inhabitants
of Peoria settled there without any grant or
permission from any government. &ch per-
son took such a person of unoccupied Una a»
he wished to occupy and cultivate; but as sooa
as he abandoned it, his ri^ht to the land oeased
with his possession, and it reverted to its oai
ural state. It was then liable to be improved
and cultivated by any who thought proper to
take possession. Sometimes a settler sM out
his improvements before abandoning. That

1880.

Hall t. Pafih.

181^.147

and the itinerant character of the inhabitants,
account for the number of persons who claimed
the same lot. . As was usual in French villages,
the lots in the village were small. They were
large enough for houses, outhouses, and gar-
dens, and m some instances, those who were
able to do so cultivated what were known as
out-lots or fields near to, but outside or beyond,
the vill&ge. Those out-fields were of different
sizes, depending upon the industry and means
of persons to till them. The village lots, as
contradistinguished from out-lots, contained
generally the hal f of an arpent. Neither the old
nor new village had ever been surveyed or oc-
cupied upon any fixed plan. Seventy claims
were made under the Act of the 15th Mjay, 1820
(3 Stat, a L. , p. 605). They were returned on
the report of the Register to the Secretary of the
Treasury, on the 10th of November, 1826. In
a little less than three years the Act of 1828 (8
iStat. at L., 786) was passed. Coles' Report.
Am. State Papers, 8 Land.

The narrative just given has.an important
bearing upon the construction of the Acts of
1820 C8 Stat, at L., 605). and 1828 (8 Stat, at
L. , 786). It serves to show the locality of
the Village of Peoria, for which those Acts
were passed, the purposes to be accomplished,
and the extent and conditions upon which a
lot may be confirmed to a claimant who had
settled and improved a lot in the village before
the Ibt day of January, 1818, and who had not
before received a confirmation of claims, or do
nation of any tract of land or village lot from
the United States, when the lot settled upon and
improved did not exceed two acres; and when
it did, to confirm to the claimant ten acres, sub-
ject to the proviso in the Act.

It was a gratuityto such settlers of a single
lot in the village. Such was the 1st section of
the Act of 8d March, 1828 (8 Stat, at L. , 786).
It gave to the claimant an incipient or inchoate
right to a lot, when, in conformitv with the 2d
section of the Act; a survey had oeen made of
the several lots reported by the Register. with a
designation or a plat thereof of the lot confirmed
and set apart to each claimant. When that
had been done, the claimant became a confirmee
under the Act and his right to the lot, as be-
tween himself and the United States, was com-
I>lete. Such was the view taken by this court
of the Acte of 15th May, 1820 (8 Stat, at L.,
605), and of the »d March, 1828 (8 Stat, at L.,
7»6). in Bryan v. Forsyth, 19 How., 886. Its
language then was, when the survey was made,
and the plats returned and approved and re-
corded by the Surveyor- General of Illinois and
31issouri. and recognized as valid at the General
L*and Office, it bound the parties to it, the con-
firmee and the United States.

The law was intended to grant the lot settled
upon and improved, and no other land described
as an equivalent. But, in this instance, no
survey was made in conformity with the 2d
section of the Act until the 11th April, 1887.
1 1 was not examined and approved by the Sur-
veyor of the Public Lands in Illinois and Mis-
souri until the 1st September. 1840, seven years
afier Seth and Josiah Fulton had made their
entry upon the quarter section, and three years
after they had received their patent for it from
the United States. The land was uncondition-

8ee 2^ How.

ally sold to them. Hall, the plaintiff in error,
bought from the Fultons in July, 1888. Under
the decision of this court, already cited, no lo-
cation of the out-lots could be made upon this
quarter section after the patent had been issued
to the Fultons. It follows, then, that there
was no confirmation of the land sued for to the
representative of Francis Willette; and conse-
quently, Uiat the quitclaim convevance by An-
gelica Fortier and her husband, of the 28a Sep-
tember, 1854, to Papin, the defendant in error,
gave to her no title to the ten acres for which
he has sued. We have shown that the inchoal e
right of the claimant under the Act — supposing
that no out-lot was meant to be confirmed — was
subject to a survey and designation before it
could be matured into a title. The requirement
of a survey before a claimant could be consid-
ered as having a legal title to land upon a con-
cession, has frequently been passed upon by
this court; and the case before us is within that
of Menard v. MoMey, in 8 How., 809.

It now remains for us to consider two of the
instructions which were asked by the defend-
ant in the court below, which the court refused
to give to the jury.

They were: if the jurv believed from the evi-
dence that the original French settlement or
improvement, upon which the plaintiff's claim
in this suit is based, was not upon or within
the northwest quarter of section 8, in township
8 north, in range 8 east of the 4th meridian,
nor located upon that quarter section by the
United States Surveyor until after that was sold
to the Fultons by the United States, that the
jury were to find for the defendant.

The court did not give the first branch of the
instructions asked, and in our opinion, rightly
so; for there was no proof in the case to show
that the French settlement, which was the basis
of the suit, was not a part of it. Indeed, no
such instruction would have been asked ; for it
was admitted by the parties that the tract sued
for was a part of the quarter section described in
the patent to the Fultons. But the court re-
fused, also, the second branch of the prayer,
which, in our opinion, should have been f:iven,
and cave the jury an instruction as follows:
he told the jury that the Acts of Congress of
1820 and 1828. taken in connection with the re-
port of the Register of the Land OfiSce and the
survey under the authority of law, vested in
the parties entitled, under the Acts of Congress,
with an absolute right of property in the lot
surveyed ; and that Angelica, the person named
in the evidence, was the daughter and sole heir
of her father, Francis Willette, the settler; that
she was within th^ meaning of the law ; and
her claim being in the report, was confirmed by
the Act of 1828.

And the jury was further instructed, that the
survey of the claimed lots, as reported by the
Register, was duly made and approved, because
the survey for the purposes of this action made
the title of the claimants, under the Acts of Con-
gress, complete; and that the court was of the
opinion that the persons taking under the patent
of March 18th, 1887, and under the entry of
Jul^ 11th, 1888. must be considered as taking
their grant subject to the contingency of the
better title which might thereafter be perfected
under the Acts of 1820 and 1828; and when a

648

169-175

BUFREMB GOTTBT OF THB UHTTBD BTAT88.

Dec. T^bm,

party brought himself within those Acts, his
title was the paramount title, notwithstanding
the patent to the Fultons.

The defendant, in our view, had asked for
such an instruction as he had a right to have
under the authorities cited in a previous part of
this opinion. The instruction given to the Jury
was erroneous.

The defendant had also asked in his second
prayer, that the court would instruct the jury,
if the^ believed from the evidence that bv the
plaintiff's recovering in this case the legal rep-
resentatives of Willette would be confirmed in
more than ten acres of Peoria French claims,
that they were to find for the defendant. The
prayer is inartificially drawn ; but when taken
m connection with the evidence in the case and
the Act of 1823, its purport could not have
been misunderstood. The object of the defend-
ant was to get an instruction from the court,
upon the evidence he had given, in conformity
with the limitation in the Act, as to the quan-
tity of land which could be confirmed to a
claimant under it. It declares when the lot
shall not exceed two acres, that it shall be con-
firmed; and when the same shall exceed two
acres, that every such claimant shall be con-
firmed in a quantity not exceeding ten acres.

Pilette, the husband of Angelica, had filed in
her behalf, in the year 1820, before the Register,
claims for lots eleven, twelve and thirteen. The
first, being the land numbered as number eleven,
contained about one half of an arpenl of land;
number twelve the same quantity, situated di-
rectly in the rear of eleven, and separated from
it by a street; number thirteen was a claim for
an out-lot or field, containine fifteen or twenty
acres of land, and situated ^bout three fourths
of a mile northeastwardly (northwestwardly)
from the Village of Peoria; number eleven was
also claimed before the Register by Felix Fon-
tain, his claim beinp: In the report No. 41 ; but
it turned out, according to the survey, that both
were for the same land, and that they covered
the southwest part of Etienne Barnard's claim
number 1, the northeast part of it being also
covered by another claim of Felix Fontain,
numbered in the survey as 42. For land so
de8crit)ed, containing fifty four thousand eight
hundred and ninety and fourteen hundreths of
a square foot, designated as covered by the
claim one, eleven, forty- one, and forty-two, a
patent was issujed by the United States to the
representatives of Francis Willette, on the 28th
August, 1845. That patent was introduced in
evidence by the defendant below, the plaintiff
in error. The purpose was to show that the
heirs of Willette having already had one con-
firmation of " a lot settled and improved," un-
der the Act of 3d March, 1823 (3 Stat, at L.,
786), that they were not entitled to another,
or to any confirmation of the title to the land
in litigation. If that were allowed, they would
get more than the ten acres, to which every
claimant was limited by the Act. Our con-
struction of the Act is, that a claimant was to
have one confirmation of " a lot so settled and
improved," which had been claimed and en-
tered in the report of the Register of the Land
Ofi[lce at £dwardsville, in pursuance of the Act
of the 15th May, 1820 (3 Stat, at L.. 605); that
no claimant, though he shall appear in the Reg-
ister's report as having made several claims,

614

could, after havins one of them confirmed,
transfer any right of property in the othos to
any persons whatever.

Papin, the plaintiff below, took from the
representatives of Willette a quitclaim convey-
ance for the land for which he sues on the 23d
September, 1854 — more than thirty ^years after
the passage of the Act of the 8d 3uurch, 183$
(8 Stat, at L., 786); more than twenty years
after the Fultons had made their entry upon
the quarter section — eighteen years after thej
received their patent ror it from the United
States — seventeen after Hall had the land is
possession by purchase from the Fultons. aod
ten years after the patent of confirmation to tb€
representatives of Willette had been recorded
in the General Land Office. Under tliese cir-
cumstances, Papin took a conveyance, whicb
gave him no nght to the land. When the
plaintiff in error, Hall, asked the court to in-
struct the jury, that if they believed from the
evidence that, by the plaintiff's recoTery in thb
case, the legaJ representatives of Fnuicis Wil
lette will have been confirmed in more than teo
acres of Peoria French claims, they were tc*
find for the defendant, the prayer ought to
have been apprehended by the court, according
to its ]:elation to tlie subject-matter in contnv
versy, and such an instruction ahoold have
been given, accordingly, to the jury. The re-
fusal. then, was error.

i^ the reoiona given, we ahaU direct thejwk.-
ment of the court beHaw to be retfened; tlutf 4
venire facias de novo shall be issued; and tki:
the court, in its further proceedings in the cann
thereon, conform to the rulings of thie opinion.

JOHN C. ALMY, Jr.. Plff. in Er.,

THE PEOPLE OF THE STATE OF CALI

FORNIA.

(See S. C, 24 How., 1<»-17S.)

State law, imposing duty on export of gold and tH
ver, is uneonaiitviional.

Law of California, imposioff a stamp tax on bii>
of ladlngr for the transportstlon from any place la
that State to any place without the State, of t^^lA <«r
silver coin, ffold oust, or gold or silver in bars, n^
other form, is repuirnantto the ConsUtutioD oftb
United States, woich declares that ''no State sh^L
without tho consent of Oonflrress, lay any iropnM«>T
duties on imports or exports, except what nay N
absolutely neoesaary for execution its in8pecti<«:
laws."

The state tax in question is a duty upon theei-
port of grold and sliver, and conftequently repug-
nant to said clause in the CkinsUtutioa.

Argued Jan. 17, 1861. Decided Jan. tS, l^*'l

IN ERROR to the Court of Sessions for th-
City and County of San Francisoo, in thf
State of California.

John C. Almy, the plaintiff in error, wft« is
dieted under a law of the State of CaliforDi^.
and convicted of misdemeanor in the Coart '^f
Sessions of the City and County of San Fnz>
Cisco.

The court of sessions being the highest oo*x.t
of California in which a dec&on could be hsA

1860.

At.MT y. CALIVOBKIiL.

169-175

in this case, the question on the constitution-
ality of the statute, decided b^ that court, is
brought before this court by wnt of error.

The case further appears in the opinion of the
court.

Mr. Montgomery Blair» for plaintiff in
error:

A bill of lading (as found by the Jury) being
inyariably required for eyery shipment, and
being from its nature and object indispensable,
the question presented by me case, as to the
right of a State to tax such instruments when
used in commerce among the States, resolyed
itself into the question of the right of the States
to tax such commerce. Against such right the
principles settled by this court in the cases of
McGuUoehv. Maryland, 4 Wheat., 431; Brawn
V. Jforytond, 12 Wheat., 419; Gibbons y. Ogden,
9 Wheat., 186; Weston v. Charleston, 2 Pet., 447;
the JPassenger Ccues, 7 How., 288, and others,
are conclusiye.

The proyision of the Constitution, giving to
Congress the power to regulate commerce
among the several States, is a part of the same
sentence giving to Congress the power over for-
eign commerce. The power being conferred by
the same language is equally extensive, and ac-
cordingly the court added, In ruling Brown's
case, that *' the principles laid down in this case
apply equally to importations from a sister
State."

See, also, 2 Story, sec. 1062.

It is not essential to the argument, that the
power claimed is capable of tKsin^ exercised so
as to destroy this commerce. It is sufficient if
power is exercised over a matter relating to ex-
terior commerce, and which, from its nature,
ought to be regulated exclusively by the general
government. *

The law in question is also in violation of
the provisions of the Constitution prohibiting
the States from taxing exports; and the reason-
ing of the court in Brovm's case is equally ap-
plicable to this branch of the case.

There is even less room for controversy here,
as to the application of the prohibition, than in
that case. Ever^ export is taxed by an impost
on the paper which represents it, and whidi is
indispensable.

Mr. J. P. Benjamin, for defendant in er-
ror:

That a State has the power to levy taxes on
eyerything within its own jurisdiction, unless
prohibited from so doing by the Constitution
of the United States, must, of course, be con-
ceded.

10th Amendment to Constitution.

1. Levying a stamp tax is not "regulating
commerce."

If the State had forbidden merchandise to be
exported except when accompanied by a bill of
lading, this would be a regulation of commerce.
JBut the State has assumed no such power, and
bas in no just sense undertaken to regulate
commerce.

It is now the settled doctrine of the court,
that this power of regulating commerce is not
exclusive, but may be exercised by the State
concurrently with the (General Government,
ivhenever their action does not conflict with that
of Congress; and Congress has not acted on the
subject under discussion.
J^icenss Cases, 5 How., 504; Passenger Cases,

8ee 24 How.

7 How., 288; Gooleyv. Wardens of PJiU., 12
How., 200.

2. Is a stamp tax on a bill of lading a duty
on exports?

It is said to be an indirect tax on exports, be-
cause the jury have found that it was the usual
and invariable custom to make and issue such
bills of lading. &c., and " no vessel or steamer
could practically fill up with or obtain freight,"
unless the master executes one.

It is submitted that the argument proves quite
too much and, if once admitted, would inaug-
urate a most dangerous system of construction,
under which all right of taxation might be
taken away from a State, thus leaving it shorn
of powers which were never intended to be
abandoned, and which are absolutely indispens-
able to its existence.

Drays and carts are necessary for loading
merchandise on board ships. Cannot a State
tax drays and carts?

In Mobile harbor and many others, larffe ves-
sels cannot load at all without the aid of light-
ers. Is the State of Alabama without power to
tax lighters?

No man is, by the law in question, forbidden
to ship his gold dust. He may accompany it.
He iliay send an agent to take care of it; he
may make a valid parol contract for its delivery
abroad, and take twenty witnesses in order to
retain the evidence of his contract ; but if he
wishes to reduce it to writing within the State,
he must put his writing on a paper on which
the State of California has levied a stamp tax.

It is worthy of notice that in the draft of the
Constitution offered in Convention by Mr. Pat-
terson, of New Jersey, there was an express au-
thority in Congress to raise revenue ' * by stamps
on paper, vellum or parchment."

1 Elliott's Debates, 175.

Yet, notwithstanding the fact that the atten-
tion of the Convention was thus specially di-
rected to this precise tax, no attempt was made
to inhibit its exercise by the States.

Mr. Chirf Justice Taney delivered the opin-
ion of the court:

The only question in this case is upon the
constitutionality of a law of California, impos-
ing a stamp tax upon bills of lading.

Dj an Act passed by the Legislature of that
State to provide a revenue for the support of the
government from a stamp tax on certain instru-
ments of writing, among other instruments
mentioned in the law, a stamp tax was imposed
on bills of lading for the transportation from
any point or place in that State, to any point
or place without the State, of gold or silver
coin, in whole or in part, gold dust, or gold
or silver, in bars or other form; and the law re-
quires that there shall be attached to the bill of
lading, or stamped thereon, a stamp or stamps,
expressing in value the amount of such tax or
duty.

By a Drevious law upon the same subject, it
was made a misdemeanor, punishable by fine,
to use any paper without a stamp, where the
law required stamped paper to be used.

After the passage of these Acts, Almy, the
plaintiff in error, heing the master of the ship
Ratler, then lying in the port of San Francisco,
and bound to New York, received a quantity
of gold dust for transportation to New York, for

645

20S-314

SUPBEIOB OOUKT OV TttB UNITlBt) StATBB.

Dbc. Tkav,

which he signed a bill of lading upon unstamped
paper, and without having any stamp attached
to It For this disobedience to the law of Cali-
fornia he was indicted in the court of sessions
for a misdemeanor, and at the trial the Jury
found a special Terdict setting out particularly
the facts, of which the above is a brief sum-
mary; and upon the return of the verdict the
counsel for the defendant moved for a Judg-
ment of acquittal, upon the ground that the law
of Calif omia was repugnant to the Constitution
of the United States. But the court decided
that the state law was not repugnant to the
Constitution of the United States, and adjudg^
that Almy should pay a fine of $100 n>r this
offense. And the Court of Sessions being the
highest court of the State which had Jurisdic-
tion of the matter in controversy, this writ of
error is brought to revise that judgment.

We think this case cannot be distinfipiished
from that of Broion v. Ma/ryland, 12 Wheat.,
419. That case was decided in 1827, and the
decision has always been regarded and followed
as the true construction of the clause of the
Constitution now in question.

The case was this: the State of Maryland,
in order to raise a revenue for state purposes,
among other things required all importers of
certain foreign articles and commooities enu-
merated in the law, or other persons selling the
same by wholesale before they were authorized
to sell, to take out a license, for which they
should pay $50 ; and in case of refusal or neglect,
should forfeit the amount of the license tax,
and pay a fine of $100, to be recovered by in-
dictment.

Brown, who was an importing merchant, re-
siding in Baltimore, refused to pay the tax, and
was thereupon indicted in the state court,
which sustained the validitv of the state law,and
imposed the penalty therein prescribed. This
Juagment was removed to this court by writ of
error, and it will be seen by the report of the
case that it was elaborately argued on both sides,
and the opinion of the court, delivered bv Chief
Justice Marshall, shows that it was carefully and
fuU^ considered by the court. And the court
decided that this state law was a tax on imports,
and that the mode of imposing it, by giving it
the form of a tax on the occupation of import-
er, merely varied the form in which the tax was
imposed, without varying the substance.

So in the case before us. If the tax was laid
on the gold or silver exported, everyone would
see that it was repugnant to the Constitution of
the United States, which, in express terms, de-
clares that '* no State shall, without the consent
of Congress, lay any imposts or duties on im-
ports or exports, except what may be absolutely
necessary for executing its inspection laws."

But a tax or duty on a bill of lading, although
differing in form from a duty on the artide
shipped, is in substance the same thing; for a
bill of lading, or some written instrument of the
same import, is necessarily always associated
with every shipment of articles of commerce
from theports of one country to those of an-
other. The necessities of commerce require it.
And it is hardly less necessary to the existence
of such commerce than casks to cover tobacco,
or bagging to cover cotton, when such articles
are exported to a forei^ country; for no one
would put his property into the hands of a ship-

646

master without taking written evidence of it«
receipt on board the vessel, and the purposes
for which it was placed in his hanoa. Tlie
merchant could not send an agent with every
vessel, to inform the consignee of the car^o what
articles he had shipped, and prove the contract
of the master if he failed to deliver them in
safety. A bill of lading, therefore, or some
equivalent instrument of writing, is invariably
associated with every cargo of merchandise ex-
ported to a foreign country, and conseqaectlv
a duty upon that is, in substance and enect, \
duty on the article exported. And if the law
of California is constitutional, then every cargo
of every description exported from the United
States may be made to pay an export duty to the
State, provided the tax is imposed in the form
of a tax on the bill of lading, and this in direct
opposition to the plain and express proiiibition
in the Constitution of the United States.

In the case now before the court, the inten-
tion tojtax the export of gold and silver, in the
form of a tax on the bill of lading, is too plain
to be mist^en. The duty is imposed only upon
bills of lading of gold and silver, and not upoo
articled of any other description. And we think
it is impossible to assign a reason for imposing
the duty upon the one and not upon the other,
unless it was intended to lav a tax on the gold
and silver exported, while all other articles were
exempted from the charge. If it was intended
merely as a stamp dutv on a particular descrip-
tion of paper, the bill of lading of anr other
cargo is m the same form, and executed in the
same manner and for the same purposes, aaone
for gold and silver, and so far as the instru-
ment of writing was concerned, there could
hardly be a reason for taxing one and not the
other. •

In the judgment of this court the state tax m
question is a duty upon the export of gold and
nlver, and consecjuently repugnant to the clause
in the Constitution hereintefore referred to;
and the judgment of the court ofseeaianM mu»t,
thertfore, be revereed.

Clted-76 U. 8. (8 Wall.), 122, 13T: 80 U. S. <«
Wall.), d4 ; 82 U. S. (15 Wall.), 280 ; 92 U. 8., 376 ; M T .
8., 641 ; 100 U. 8., 95: 16 Pat. Off. Oaz , 1,000: «3 P».
St., 209 ; 38 Cal., 840; 84 Cal., 489; 1 Am. Hep^ 411 1«?
Pa., 886).

SUSAN VIGEL, Plff:in Br.,
«.

HENRY NAYLOR, Administrator of Gbobgk
Natlor, Deceased,

(See 8. C, 24 How., 208-214).

Verdicts and judgments — when evidence on que*-
Uon of freedom of slaws.

In a petition for freedom by a slave under a will
by which all testator's slaves over thirty-five yoan
of afire were emancipated ; and all those under ttsat
age were to be emAocipated, tbe males at thirtjr.
five, and the females at thirty vears of aflpe« wscoidi
of verdicts and Judirments establiahmg that peti-
tioner's mother and sister were the slaves of test*>
tor at his death, and acquired their freedom undrr
his will, are proper evideaoe.

A presumption could liave been founded on tiue
proof by the Jurv, that the infant child of the same
family was the slave of testator also.

The records of the Judirments were not imltr aiim
acta and, therefore, incompetent.

The evidence offered had weight enough tn It to
be pertinent and ought, therefore, to have bets
submitted to the jury.

tt U.S.

1860.

VlQEL V. NaTLOR.

20&-214

Argued Jan. 11, 1861. Decided Jan. 28. 1861.

IN ERROR to the Circuit Court of the United
States for the District of Columbia.

This was a petition for freedom filed in the
court below by the present plaintiff in error.
The jury found that the petitioner was not free,
and judgment was rendered accordingly. The
petitioner brought the case to this court by
writ of error. The questions raised related to
the rejection, by the court below, of evidence
offered by the petitioner and are fully stated in
the opinion.

Mr. M. Blair, for plaintiff in error.

Mr. J. H. Bradley and Messrs. Badger
A Carlisle, for defendant in error.

Mr. Justice Catron delivered the opinion of
the court:

Susan Vigel sued Henry Naylor, adminis-
trator of George Naylor. by a petition for free-
dom in the circuit court of this district. He
pleaded that she was his slave. On the trial of
this issue, she offered in evidence the will of
John B. Kirby. by which all his slaves over
thirty-five years of age were emancipated; and
all those under that age were to be emancipated
— the males at thirty-five, and the females at
thirty years of age. This was allowed by an
Act of the Legislature of Maryland of 1796,
ch. 67. sec. 18.

A witness testified on the petitioner's behalf,
"that a few days after the death of Kirby.
which took place in 1828. G^rge Naylor
brought to his house, where witness was then
at work, the petitioner, her mother, and her
sister; and said George Naylor stated to the
witnesses at the time, that he had brought said
negroes from the residence of said Kirby; and
that the petitioner was then between six and
eight yfiars of age."

The petitioner then offered to prove that her
brother Richard, and her mother Sarah, and her
sister Eliza, had obtained their freedom under
the will of Kirby; that Sarah, the mother, and
£liza, had recovered their freedom by suits
brought against George Naylor, which were de-
fended by him. In the one instituted by Sarah,
judgment was rendered in 1888; and that
brought by Eliza was decided in her favor in
1842. The petitioner also offered to prove that
it is very unusual for children of the age of the
petitioner at the time of Kirby's death to be
separated from their parents; but the court ex-
cluded the testimony offered, fromthe jury ; to
^hich exception was taken.

The defendant then proved by two witnesses,
that they had known the petitioner from her
birth, and that she was bom on the property of
George Naylor; and that she never was out of
bis possession, or that of his successor and ad-
ministrator. It is objected that no records of
the verdicts and judgments were offered to
prove the recovenes. The bill of exceptions
states, generally, that she offered to prove the
facts, but the court refused to hear the evidence.

Transcripts of the records being the best evi-
dence, and their production necessary, it is
manifest that the offer to prove the recoveries
-was not refused for the reason that the record
evidence was absent, but because the recoveries
were deemed irrelevant, or that they were inter
alios acta and, therefore, incompetent as proof
in the cause for any purpose. And the first

Bee 24 How.

question is, was the evidence offered relevant,
when taken in connection with the parol evi-
dence?

The girl was six or eight years eld when
George Naylor brought her home in 1828, with
her mother and sister, from the late residence
of Kirby, the testator. It was offered to be
proved, and we must take it to be true, that it
could have been proved that it was unusual to
separate the mother from a slave child &s youns:
as the petitioner was at the time Kirby's will
took effect.

If Sarah, the mother, Richard, the brother,
and Eliza, the sister, were the slaves of Kirby
at his death, and acquired their freedom under
his will, does this circumstance furnish evidence
from which a jury might infer, in connection
with other evidence, that the petitioner was also
the slave of Kirby when he died, and entitled
to her freedom on arriving at thirty years of
age? It is immaterial whether the evidence of-
fered and rejected was weak or strong to prove
the fact. The question is, was it competent to
goto the jury? Castle v. Ballard, 23 How..
187. If so, it was for them to judge of its force
and effect. If this child had been only one
year old or under when Naylor got possession
of her and of her mother, and other children in
company with her, the presumption would be
stronger, that her condition and that'of her
mother was the same, and both the slaves of
Kirby, and were manumitted by his will.

By the rejection of the evidence the case was
stripped of all proof that Susan, the petitioner,
ever belonged to Kirby, the testator; whereas,
had it been admitted, it would have proved that
Susan's mother, and her other children, be-
longed to the estate of Kirby after his death,
ana were emancipated by his will ; and having:
emancipated all his slaves, a presumption could
have b^n founded on this proof by the jury,
that an infant child of the same family was
the slave of Kirby also, especially as Naylor
brought the slaves as a family from Kirby's late
residence.

2. Was the record of the judgment inter alios
a(;toand, therefore, incompetent?

In the case of Davis v. Wood, 1 Wheat., 6. it
was held by this court that a judgment in favor
of the mother establishing her freedom against
Swan, a third person, could not be given in evi-
dence in a suit by the child of that mother as
tending to prove his freedom. On the trial be-
low, tJ^ petitioner offered to prove by witnesses
that they had heard old persons, now dead, de-
clare that a certain Mary Davis, now also dead,
was a white woman, born in England, and such
was the general report in the neighborhood
where she lived ; and further off er^ to prove
hj the same kind of testimony, that Susan Da-
vis, the mother of the petitioner, was lineally
descended in the female line from the said
Mary; which evidence, by hearsay and general
reputation, the court refused to admit, except
so far as it was applicable to the fact of the pe-
titioner's pedigree. And the ruling below, this
court affirmed.

There is no question arising in the cause be-
fore us involving the consideration to what
extent hearsay evidence to prove the status of
freedom is admissible and, therefore, we refrain
from discussing the first point decided in Davis
▼. Wood, 1 Wheat., 6. In that case, Susan, the

617

238-242

SUFRBMB Ck>URT OF THX UnITRD STATBB.

Dbc. Terh,

mother of Jolin, was sold by Wood, the de-
fendant, to Caleb Swan ; and she and her daugh-
ter Ary, who had likewise been sold, sued Swan
for their freedom, and recovered it. This rec-
ord of recovery was offered in evidence on be-
half of John, but was rejected on the trial.

This court held, that " as to the second ex-
ception, the record was not between the same
parties. The rule is, that verdicts are evidence
between parties and privies. The court does
not feel mclined to enlarge the exceptions to
this general rule and, therefore, the judgment
of the court below is affirmed."

This is the judgment with which we have to
deal. The difference in the case under con-
sideration and the one found in 1 Wheat., is,
that here Susan's mother and sister recovered
their freedom from Naylor, he being the de-
fendant in both actions. There the mother and
daughter recovered their freedom from Swan,
who had purchased them of Wood.

This court having cut off all evidence by
hearsay and general reputation — Ist, that the
female ancestor of the petitioners was a white
English woman, and free; and 2d, that the rec-
ord of the recovery of freedom by John's moth-
er and sister from Swan was incompetent — of
course the petitioner had to go out of court,
having j)roved no case.

There the verdict was not between the same
Darties. Here the "suit was between George
Naylor and the mother of Susan; as between
the mother and Naylor, the verdict was con-
clusive of her right to freedom; and Susao,
the child, was a privy in blood to the mother,
(being her heir, ii free,) and as such heir, comes
within the rule laid down in Dcms v. Wood,
and could avail herself of that verdict as equal-
Iv conclusive, if she could further prove that
she was bom after the impetration of the moth-
er's writ. Alexander v. Sboihdy, 7 Serg. & R.,
800; Pegrcm v. lioJlM, 2 Hen. & M.. 198; Ghaiir
eeUor v. MiUon, 1 B. Mon.. 26. Or, if she
could prove that she was bom after Kirby's
death, and that her mother recovered her free-
dom under his will — and which facts might
have been established by further proof— these
circumstances could be let in as acuiitional evi-
dence. 2 Hen. &M.,211.

Owing to the lapse of time since Mr. Eirby
died, the petitioner sought to establish her case
by eircumstaintial evidence. It was rejected;
for what particular reason, does not appear.

As already stated, we think the evidence of-
fered had weight enough in it to be pertinent,
and ought, therefore,to have been submitted to
theiury. 28 How., 187.

How it was proposed to be proved that Rich-
ard was a free man, and acquireil his freedom
uiider the will, does not appear; but as toBliza,
the sister, a record of recovery by her of her
freedom against Naylor was offered as evidence
and rejected. The record could have proved
the existence of the verdict and judgment as a
fact, and the legal consequences flowing from
the fact, namely : that the petitioner, Eliza, was
a free person. As to George Naylor and his
representative, her Uaius of freedom is a con-
clusive fact. And what is the effect of the
record as respects other persons? Eliza sued
Gteorge Naylor, declaring that she was free.
He replied that she was his slave. She had a
verdict that she was free. By the verdict and

648

judgment she took to herself all Navlor*fl title;
It was vested in her as Naylor had it. HarrU
V. Cla/rma, 6 Yerg., 248. He had had her in
possession twelve years, and had title by the Act
of Limitations of six years, as to other con-
testants who might set up claim to her as a slave.
She can rely on his title as if he had manu-
mitted her; the record has this effect. It stands
on the footing that a recorded deed of manu-
mission to her from Naylor would stand, or
that a recorded bill of sale from him to a pur-
chaser would stand. In either case, liie title
paper could be given in evidence to prove the
title ; and the title thus acquired must be deemed
valid until some one else legally establishes a bet-
ter. This record evidence maybe used in any suit
by a third person, where the evidence is per-
tinent, of which the court must judge from
facts and circumstances appearing on uie trial :
and to this effect are the adjudications of the
state courts generally. Pegram v. I»ab^, in
Virdnia, 2 Hen. & M., 210; Alexander y. Stoke-
ley, 7 Serg. & R , 290, in Pennsylvania ; VaugAan
V. Phebe, Mart. & Y., 6. in Tennessee; Chan-
cellor V. MiUon, 1 B. Mon., 25, in Kentucky.
In Maryland, no decision is found on the sub-
ject.

In the next place, the record operates cm the
stattu of the person; it sets him free or pro-
nounces him a slave, and binds him by the
verdict either way. SheUan v. Barbour^ 2
Wash. (Va.), 82.

In some of the States, the suit may be in equity,
and the statue of freedom be established by a
decree. Fisher^ % Negroes v. Dabbe, 6 Yerg.« 119;
Reuben v. Parrieh, 6 Humph., 122.

Jt is ordered that t?ie judgment of the c^^vit
court be rewreed, and the eauee remanded for
another trial.

WILLIAM THOMPSON and JOHN PICK-
ELL, Plffs, in Er„

LEWIS ROBERTS, GIDEON R. BURBANK
AND ADDISON ROBERTS.

(See B. C, 24 How., 238-JM2.)

Res iudicata — where parties were not same in
both suits— favorable error, no ground ofrt-
versalr— formal parties.

The Judfirment of a court of law, or a decree of •
court of equity, directly upon the same ix»tiit, and
between the same parties, u^ood as a plea In tiar,
and conclusive when given in evidence in a sabse-
quent suit.

An error, one favorable to the plaintiffs In error,
is not ground of reversal.

An objection that the parties were not the mne
in both suits cannot be sustained, where both the
parties were parties In the former suit ; and the
subject-matter was the same, and the defemae here
set up wasithe same, which the pleadings and tbe
evidence show to have been adjudicated In Uie for-
mer suit.

A question as between the parties is res/tidtoafA,
and none the less binding because others are con>
eluded also, where the first Issue was In cbanoerT,
and other parties collaterally Interested were made
parties, that it might be final, and not-beoausether
were legal parties to the original contracton whica
the litigation is founded.

VoTE.—ConduHoeness ofjudgm^UM, See note to
B'k of n. 8. ▼. Beverly, 4S U. 8. (1 How.), 1M.

Judaments of state courts^ effect of in^ other Slate«,
and how far conduaive ififederal eourU, See note to
D'Aroy v. Ketohum, & U. S. (11 How.). 165.

1860.

Thompson y. Robsbts.

238-343

Argued Jan. 17, 1861. Decided Jan, 28, 1861.

IN ERROR to the Circuit Court of the United
States for the District of Maryland.

The action was based upon two promissory
notes made by the plaintiffs in error in favor of
William H. Smith, and indorsed by him to the
defendants in error, under the circumstances
stated in the opinion of the court.

The present action was commenced in the court
below in Nov. 1858, and resulted in a verdict
and Judgment for the complainants, the pres-
ent defendants in error. The defendants below
tendered their bill of exceptions and brought
the case to this court.

Messrs. Charles F. Mayer and Wash-
ini^on Yellottt for plaintiffs in error:

As to the instruction given to the Jury by
the court below, the plaintiffs in error main-
tain:

It submits to the jury the whole question of
the identity of the defenses taken in this suit
and in the equity case in the United States
court, which question, on the contrary, is one
of law and fact, in regard to which the court
should at least have specified the particular
point of defense to which they referred.

2 Johns.. 29, 80, 210; 16 Johns., 186; 1 Esp.,
43; 1 East. 856; 2 Barn. & C, 280: 10 Eng.
C. L., 62. ' ' 6

It was for the court to compare the respect-
ive defenses; and on such comparison it will
appear that they do not coincide; and the
court should, therefore, have refused to leave
to the Jury the inquiry as to the identity of
def en ses

2 Gall, 229, 280; 17 Pick., 7, 14; 1 Greenl.
Ev.. sees. 528-^4.

The instruction was erroneous because, even
assuming that the defense of fraud was taken
in the equity suit, the decree there is not to be
understood as determining or at all considering
that defense. In that suit in rem, it was not
an appropriate defense and could not have
availed, since, whether there were fraud or not,
the land, inferior in coal value as it might be,
ought to have been charged with the purchase
money debt under the mortgage. The personal
liability on the notes is a distinct question. The
sale upon the mortgage was inevitable; and for
any amount, reclaimaole for the misrepresenta-
tion, of the purchase money paid, the remedy
was against the proceeds of SEkles under the
mortgage decree.

1 Greenl. Ev.. 528; 2 Gall., 229, 230; 1 Pet.
C, C, 208; 8 Day, 188; 8 Conn.. 268; 8 Si-
mons, 447; 4 Irish, 75.

Identity of defenses does not bear on the de-
fendants in this suit, and preclude the bar now
set up, because they were not necessary nor
proper parties to the equity suit.

Calvert, Part., 181; 17 Law Libr.

The defense and testimony in the equity case
were not between the same parties as the parties
to this suit; and cannot operate against the de-
fendants here, as res judicata, by virtue of the
equity decree.

6 Pet., 828; 1 Wash, C. C, 70, 75; 4 Wash.,
C. C. 186-188; 1 Paine, C. C, 549; 2 Gall,,
228; 1 Munf., 898.

Mr. Thomas S, Alexander, for defend-
ants in error:

The verdict for the plaintiffs below, estab-
lishes the identity of the defenses in the two
See 24 How.

causes; so that it is presumed the only subject
for in()uiry is, whether the decree of the court
of equity on the matter of a defense taken in a
proceeding in rem, to enforce payment of a
debt by sale of the pledge, is conclusive on the
same matter, offered as n defense in an action
in perMnam, for recovery of the same debt.
The defendants in error maintain the affirma-
tive on this question.

To render the decree conclusive, it is suffi-
cient thatthere exists identity of matter in issue,
and of parties. i

The identity of the matter in issue is estab-
lished by the verdict. As to parties there can
be no question.

Duchess of Kingston's case, 2 Sm. Lead. Cas..
573: Outram v. Morewo^d, 8 East, 846; BeaU
V. Pearre, 12 Md., 564; Hopkins v. Lee, 6
Wheat., 109; Bank of U. 8. v. Beverly, 1 How.,
184; Smith v. Kemochen, 7 How., 198.

Mr. Justice Chrier delivered the opinion of
the court:

The defendants in error were plaintiffs below,
and brought this suit as indorsees of two notes
given by the plaintiffs in error to William H.
Smith. These notes were given in part pay-
ment of some tracts of coal land sold and con-
veyed to Thompson and Pickell by Smith, and
the defense endeavored to be established on the
trial was a want of consideration, in that Smith
had falsely represented the lands to contain 800
acres of "big vein" coal, when in fact they
contained but 150 acres. A mortgage had been
given to secure these notes; a bill had been
filed in chancery to fereclose this mortgage, in
which Smith, the assignor, and Roberts and
others, the equitable assignees of the mortgage,
and indorsees of these notes, were complain-
ants, and Thompson and Pickell, together with
their assignees, the Pickell Mining Company,
were respondents. They put in a joint and sev-
eral answer admitting the execution of the
notes and mortgage, and alleging as a defense
the representations made by Smith, by which
Thompson and Pickell were induced to pur-
chase the lands, supposing them to contain 800
acres of the " big vein " coal, when, in fact, as
they afterwards discovered, the lands contained
but 150 acres of the same. For this reason, and
*' because they did not receive a valuable con-
sideration for said notes or mortgage, respond-
ents aver that plaintiffs are not entitled to de-
mand payment of them, or any part of them,
but the same are to be regarded as absolutely
void."

This case was fully heard by the Chancellor
on the pleadings and evidence, who overruled
the defense set up, and decreed a sale of the
mortgaged premises. The record of that case
was put in evidence on the trial of this case by
the defendants below, for the purpose, as they
aUeged, ** of showing that the plaintiffs were
not holders for value."

They offered, for that purpose, a part only of
the record. Whereupon the plaintiffs eave in
evidence the entire record, and insisted that the
decree is conclusive, and estops the defendants
from again alleging the same matter as a defense
to the suit at law on the notes. The evidence
was, however, again presented to the juiy,
without a waiver of plamtiffs' right to treat the
decree as an estoppel.

649

833-^46

SXTPREICB COUBT OF TBB UmITKD StATSS.

Dec Term,

The court rejected a number of prayers of-
fered by each party, and gave the following in-
struction to the jury, which is the subject of
exception:

'* If the jury shall find from the evidence that
the promissory notes offered in evidence in this
case were duly executed and delivered by the
said defendants to William H. 8mitli, and by
him indorsed over to the said plaintiffs for value ;
and that, in the cause on the equity side of this
court, in which the said plaintiffs, with the said
Smith, were complainants, and the said Thomp-
son and Pickell, with the Pickell Mining Com-
pany, were defendants (the record of which has
been offered in evidence), the same defense was
made and set up in said cause to prevent the
passage of a decree for the sale of the said lands
to pay the said notes as is now made to prevent
a recovery in this case, then the decree passed
in that case is conclusive upon the point of this
defense, and the plaintiffs are entitled to recover
in this action."

The plaintiffs in error have not called in ques-
tion the correctness of the general principle of
law assumed by the court below, viz.: "that
the judgment of a court of law, or a decree
of a court of equity, directly upon the
same point, and between the same parties,
is good as a plea in bar, and conclusive when
given in evidence in a subsequent suit "
' But it is objected to this instruction, that it
submits as a question of fact to the jury what
ought to have been decided by the court as
matter of law from the face of the record pro-
duced. This, if an error, was one favorable to
the plaintiffs in error, as it gave them the chance
of a verdict on a point which, if decided by the
court, must have been decided against them;
for the record shows conclusively, that the very
same defense against these notes was the only
point in dispute in the court .of equity, to wit:
whether plaintiffs in error were *' deceived by "
the alleged misrepresentations of Smith, fraud-
ulent or otherwise, and whether the notes were,
therefore, '* without consideration," and ** ab-
solutely void."

The objection, that the parties were not the
same in both suits, cannot be sustained.

Both parties to this litigation were parties in
that suit; the subject-matter was the same; the
defense now set up was the same which the
pleadings and the evidence show to have been
adjudicated in the court of chancery.

it is true. Smith, who indorsed the notes to
the plaintiffs below, and who was interested in
the quefttion, was joined as complainant, and
the Pickell Mining Company, who had pur-
chased the mortgaged property, were made re-
spondents, according to the practice In courts
of chancery, where all parties having an inter-
est in the question to be tried are made parties,
that the decree may be final as to all the mat-
ters in litigation. No good reason can be
given why the parties in this case, who liti-
gated the same question, should not be con-
cluded by the decree, because others having an
interest in the question or subject- matter were
admitted by the practice of a court of chancery
to assist on both sides.

The question as between the present parties
is res judicata, and none the less binding be-
cause others, are concluded also. A contrary
doctrine would sacrifice a wholesome principle

660

of law to a mere technical rule having no
foundation in reason; making a distinction
where there is no difference.

Such was the ruling of the court in the case
of Lawrence v. HutU, 10 Wend., 82, where it
was objected that in the former suit there was
another plaintiff joined. Where the former
suit was at law, this objection might have some
weight, for it could not well be said that a con-
tract of A and B with D and C was the same
as that in another suit where A was sole plain-
tiff and D sole defendant But this objection
cannot apply where the first issue is in chan-
cery, and parties collaterally interested are made
parties to the litigation, that it may be final,
and not because they were legal parties to the
original contract on which the litigation i^
founded. In -such a case the pleadinss may
show the contract or subject-matter of the liti-
gation to be the very same, and directly in is-
sue; in the other, it could not be well so. As
we are of opinion that there was no error in
this instruction, it will not be necessary to
notice the other points alluded to in the argu-
ment, this one being conclusive of the whole
case.

7^ judgment of the circuit court i$, therefore,
affirmed^ with costa.

Clted-40 Am. Rep., 613 (101 III., 506).

THE WASHINGTON, ALEXANDRIA
AND GEORGETOWN STEAM PACKET
COMPANY, Plffa in Er„

FREDERICK E. SICKLES and TRUEM AN

COOK;

AND

THE WASHINGTON, ALEXANDRIA
AND GEORGETOWN STEAM PACKET
COMPAJ^Y, Plffs in Br,,

FREDERICK E. SICKLES and TRUEMAN

COOK,
(See S. Cm 24 How., 833-346J

Docket oj courts of District of Columbia — when
prior judgment is a bar or an esttfppel—
same matter in controt>ersy — extrinsie evidence,
to prove what facts and issues were tried and
decidedr-judgment, coTiclueive ofwhatfaet^.

In the courts of the District of Columbia, the
docket stands in the place off or, perhaps, is the
record, and Is entitled here to ail the consider-
ation that is yielded to the formal record in other
States ; and to tjie same faith and credit.

In order that the Judffmoot or decree majr be set
up as a bar by plea or relied on as evidence by v«j
oi estoppel, it must have been made by a court of
competent Jurisdiction upon the same aubject^mat-
ter, between the same parties for the same purpiMe.

It is not necessary ,88 between parties and pn viae,
that the record should show toe question up>jii
which the ri«:ht of the plalntilT to reoov^er, or the
validity of the defense, depended, but only tbat the
same matter In controversy mi^ht have been liti-
floated

Extrinsio evidence will be admitted to prove that

nt. See note to Aspda

Note.— Estoppel hyiudomeni.
r, Nixon, 46 U. S. (4 aow.), 467.

•5U.8.

1860.

W., ^. & O. Packet Co. v Sickulb.

888-346

the iwrtioular question was material, and was In
fact contested, and that it was referred to the de-
cision of the Jury.

The Judjrment rendered, while it remains in force,
is conclusive of all the facts properly pleaded by
the plaintiffs.

But when it is presented as testimony in another
suit, the inquiry Is competent whether the same is-
sue has been tried and settled by it.

Where a number of issues are presented, theflnd-
injjT on any one of which will warrant the verdict
and Judgrment^it Is competent to show that the flnd-
iiur was upon one rather than on another of these
different Issues.

The subsequent application of the verdict, to a
single count by the court,does not preclude this in-
quiry.

Argued Dec. SI, 1860. Decided Jan. f , 1361.

ERRORS to the Circuit Court of the United
States for the District of Columbia.

The two above cases are alike in ^1 material
points. They were actions of asiumpeit, brouf^ht
in the court below by Sickles and Cook, the
present defendants in error. afl;ain8t the plaint-
iffs in error. The trial resultea in a verdict and
udfl^ment for the plaintiffs below. The de-
endante brought the cases to this court by
writs of error. The questions involved are
stated by the court.

Meeere. Qeorge E. 'Btkdger and J. VL
Carlisle* for the plaintiffs in error:

The court below held that the proceedings
offered were not only evidence, proper and ad-
missible, but conclusive against the plaintiffs
in error as an estoppel. We submit that the
court below erred in holding that these pro-
ceedings were proper evidence, for there was no
judgment nor verdict shown. The docket en-
tries, admitted by the court on this point, are in
these words: *' 23d November, jurv found ver-
dict for the plaintiffs: damages $1,^5.75, with
interest from 16 March, 1846. Verdict rendered
7th December. 14th December, judgment for
plaintiffs on the first count in the declaration/'

We submit there was no evidence of a ver-
dict or a Judgment. This was merely a mem-
orandum or minute from which a verdict
might afterwards be drawn up. If there had
been a verdict in full, properly entered up, it
could not be offered as evidence without show-
ing the judgment; but a judgment can only be
shown by the production of an examined copy,
or an exemplification of the judgment entered
of record, or in the same court by the produc-
tion of the judgment itself.

TuthiU V. Davie, 20 Johns., 285; Phil.Ev.,384.

It cannot be proved by the judgment book,
although the judgment roll may not have been
made up, and though the person interested in
showing the judgment be no party to the record.

Ayrey v. Davenport, 2 B. & P. N. R., 474.

Nor by the minutes kept, from which a judg-
ment is to be made ttp.

Wade V. Odeneal, 8 Dev., 428; Leveringe v.
Dayton, 4 Wash. C. C. 698; Furgvean v.
HarvDood, 7 Cranch, 408; Lowry v. Cody, 4
Vt., 604; Seaiony.Cordray, 1 Wright (O.), 102;
Vaughan v. Phebe, 1 Mart. & Y., 24; Skeldon
V. Frink, 12 Pick., 568.

But if there was no judgment shown, then
there was no evidence of a verdict, for a ver-
dict is of no force until followed and con-
summated by a judgment. The rule is the same
in the courts of England as in this countrv,
viz. : that a judgment only exists, and can only
be shown by the record thereof, when finally

Bee Zi How.

reduced to its ultimate form according to the
course of the court, whether that be enrollment.
Insertion in a book kept for that purpose, or
otherwise, and whilst there is something to be
done in order to make the judgment hereafter
assume that form, there is no judgment in law.

See 2 Lill., 103; Latch.. 216; 1 Dan v., 722;
Palmer, 281; Pitton v. Walter, 1 Str., 162;
Bex V. Page, 2 Esp. . 649, note; Fieher v. Kit-
chingman, Willes, 863; Goodbread v. Welle, 4
Dev, & B., 271.

We, therefore, submit that the court below
erred in receiving the proceeding in evidence at
all; but if they were admissible, then we con-
tend that there was error, in holding them to
amount to an estoppel.

There are two questions which have been
presented on the briefs in this case, which seem
to be confounded by the counsel for defend-
ants, but which are distinct and different.
The first is as to the effect of a previous judg-
ment on the merits upon a subsequent suit for
the same thing, the same cause of action ; as,
for example, where the same debt or demand
is the subject of each of the suits.

The second is, where one brings a suit for a
certain demand or cause of action, which has
never before been the subject of a suit; but he .
has, in a former suit, sought to recover another
demand; both demands growingout of one ti-
tle or interest in the plaintiff. What, in such
case, is the effect of the former proceedings
upon the second action? This is the question
now before the court.

Now, the rule we take to be this:

If in the former proceeding the title of the
party has been directlv alleged, and an issue
taken upon it which involves no other mat-
ter, or if any fact being part of that title
has been thus separated from all other matters
and made the point of an issue, the finding
upon it mav, in such subsequent suit, be relied
on in pleaching as a technical estoppel, but not
otherwise. And that where, in the former suit,
there has not been such separation of the title
from all other matters, but the same has been
involved in a general issue with other matters,
whether this arise from the mode of pleading
adopted by the parties, or required by the nat-
ure of the action, no finding thereon can either
establish or disaffirm the title so as to estop
either of the parties in a subsequent suit; and
that if it cannot operate as an estoppel by plead-
ing, neither can it have the effect of an estop-
pel when given in evidence to the juiy.

Ouiram v. Morewood, 8 East, 846; Hooper
V. Hoopor, McC. & Y., 509; MOesv.Bose, 5
Taunt., 704; Garter v. James, 13 Mees. & W.,
137; and there is no English case to the con-
trary.

But further, the declaration contained and
the trial was had on two counts. In law these
are supposed to be on different contracts. In
the second there was no averment of a suit hav-
ing been brought oh that contract. Yet the
court applied the estoppel to both counts, and
refused to hear evidence to disprove the con-
tract alleged in either. This is a fatal objection
to holding the proceedings an estoppel, which
we are now considering, and not their admis-
sion as evidence.

We insist, then, that the judgment was not
condubive, but only evidence to be left to the

661

838-840

SUPRBME COXTBT OF TBB XJniTBD StATBS.

Dbc. Tkric,

% persuasive, or perhaps prima facie, but
still not to preclude the plaintiffs in error from
coins into their case and rebutting the eyidenee
by oUier proofs. And surely if it throws the
burden of the proof on the defendant in the ac-
tion, and is to be deemed conclusive, unless dis-
proved, weight enough for every fair and rea-
sonable purpose is dven to the record. To
make it conclusive of the contract, which is the
title or right of the plaintiffs in successive ac-
tions for new damages, during 14 years — to
give a defendant no opportunity to correct a slip
or oversight, or to have the benefit of evidence
Bubseouently discovered, such as, that the wit-
ness, by whose testimony the former verdict
was obtained, has been discovered to have been
largely interested in the recovery — is, it seems
to us, to shut out truth where authority does
not compel, justice does not demand, and expe-
diency does not warrant.

Jlietisrs. William J. Stone, Jr., and Jo-
seph H. Braidley, for the defendants in er-
• ror.

I. Did the verdict and judgment in the case
tried in 1865 conclusively establish the said
contract between the plaintiffs and defendant,
and the rate of compensation under it?

In HopkifM V. Lee, 6 Wheat., 113, this court
decided that a verdict and ludgment in a court
of record, or a decree in chancery, put an end
to all further controver^ concerning the points
thus decided between the parties to the suit.

See. also. Bank U. 8. v. Beverly, 1 How.,
134; 8h4tfer v. SUmebreaker, 4 Gill & J.,. 345.

In the first count of the declaration in the
cause tried in 1855, the contract is specifically
set out, and as a p&ri of it, the experiment and
its result which fixed the plaintifrs compensa-
tion. The defendant pleaded rum asmmptit,
and the jury^ gave a ^verdict for the plaintiffs,
thereby finding all questions of fact stated in
the plaintiff's declaration to be true as stated,
and the court gave judgment thereon. The
contract and experiment as a part of it were
questions of fact directly in issue, were neces-
sarily passed upon by the court and jury, and
the defendant, on the principle settled in the
before mentioned cases, is estopped to deny it.

II. The estoppel is conclusive when given in
evidence, even if not pleaded.

See PhUa., W. dt BaU, B. B, Co, v. Howard,
13 How., 335; Tretivanv. Lawrence, 1 Salk.,
276.

A verdict and judgment, of a court of com-
petent jurisdiction, puts an end to all further
controversy between the same parties concern-
ing the points thereby decided. Parol evidence
is admissible, if necessary to show what ques-
tions or points were in issue in the first suit.

Young v. Black, 7 Cranch, 565; Bogers v.
Libby, 85 Me., 202; Doty v. Brown, 4 N. Y.,
71; Beirekheady. Brown, 5 Sand.. 140; Grant
V. Bameey, 7 Ohio St., 162; Henley v. Fbley, 18
B. Mon., 522; F^hii v. FUchli, 1 Blackf.,
361; Chamberlain v. Oaillard, 2» Ala., 509;
Bd)ee v. EUioU, 4 Barb., 459; Hunter v. Davis,
19 Ga., 415; Stevens v. HugJies, 31 Pa.. 881;
P&rkins v. WaUcer, 19 Vt., 149; 2 Zab. (N. J.).
699; 7 Ga.. 434; 2 Mich., 276; 15 111., 458; 5
Smith, (N. Y.),108; 12 Md., 550; 10 Wend.,83.

IIL Are the plaintiffs to be deprived of the
benefit of the estoppel for the reason that when
the verdict was rendered, the deduction, in

66i

addition to the special count in the contract,
contained also common counts?

Tjhe jury, by their verdict, necessarily found
the statements of fact in all the counts of the
declaration to be true. The theory of several
counts is, that they represent distinct and inde-
pendent transaction, otherwise the declaration
would be subject to the charge of duplicity.
When the verdict was rendered, the plaintiff
might have had it entered on the first count,
and the judgment following the verdict there
could have ^n no question as to the estoppel
in this case (if there can be an estoppel in any
case); for that count sets forth the contract and
experiment with the result of it.

Although the plaintiffs did not, when the
verdict was rendered, have it entered on the
first count alone, yet they subsequently had
the verdict amended and applied to the count
by the court, who were satisfied that the evi-
dence given applied to it and not to the other
counts. That the court had power to do this
is well settled.

Stockton V, Bishop, 4 How., 167; Mathemm's
Admin, v. Grants Admin,, 2 How., 281. 282;
Bank of the U. 8. v. Mots, 6 How., 39; PkErks
V. Jhimer, 12 How.. 45.

IV. The defendant's first bill of exceptionare-
lated to the docket entries and original papers.
This suit was pending in the same court in
which the former suit nad been tried, and the
docket entries and original papers offered ivere
under the control of the court. If the reason
given, that the clerk had not made out the rec-
ord, is not sufiQcient, then there may be a fail-
ure of justice, as the record is to be made up
by an officer of the court, over whom suitors
have no control. The original declarations and
pleadings should certainly be deemed of as hi^h
credit and as satisfactory evidence aa copies
could be. and a court and jury as fully capable
of examining them as the clerk.

BoteUr v. State, 8 Gill & J.. 381-883.

Mr. Justice Cajnpbell delivered the opin-
ion of the court:

The defendants in error, as plaintiffs, sued
the plaintiffs in error, in assumpnt/m the circuit
court, upon a special parol contract, purporting
to have been made in 1844, to the effect that
they having a patent for Sickle's cut-off, for
savmg fuel in the working of steam engines,
and the defendants being the owners of a cer-
tain steamboat, it was agreed between them
that the said patentees should attach to the en-
gine of the defendants one of their machines;
and that the defendants should pay for the use
thereof three fourths of the saving of fuel pro-
duced thereby, the payments to be made from
time to time, when demanded. That, to ascer-
tain the saving of fuel, an experiment should
be made in the manner described in the decla-
ration, and that the result should be taken as
the rate of saving during the continuance of
the contract, which was to be as long as the
patent and the steamboat should lasL The
plaintiffs aver that the experiment had been
made, and the rate of saving had been duly as-
certained ; and that the machine had been used
in connection with the engine on the said boat
until the commencement of the suit.

In the first count of the declaration, the
plaintiffs further stated, that they brought, in

6d U.8.

1860.

W. A. & G. Packet Co. ▼. Sicslbb.

883-346

March, 1846, a suit on this contract in the cir-
cuit court for the sum then due, and had ob-
tained a verdict and judgment Uierefor in the
circuit court in 1856, and had thus established
conclusively the contract between the parties.
These last allegations are not contained in the
second count. The defendants pleaded the
general issue.

The plaintiffs produced upon the trial, as
the only testimony of the contract, the proceed-
ings of the suit mentioned in the declaration,
and insisted that these proceedings operated as
an estoppel upon the aefendants. These pro-
ceedings consisted of a writ, a declaration, con-
taining two counts upon the contract, and the
common counts, and the plea of the general is-
sue ; also a docket entry of a general verdict,
in favor of the plaintiffs, on the entire declara-
tion, and a docket entry of Judgment, subse-
quently rendered on the first count — a count
similar to the counts in the declaration in the
present suit. The defendants objected to these
docket entries as evidence of a verdict and
Judgment, but insisted they were simply mem-
oranda or minutes, from which a record of a
verdict and judgment were to be made. It ap-
pears that in the courts of this district, as m
Maryland, the docket stands in the place of, or,
perhaps, is the record, and receives here all
the consideration that is yielded to the formal
record in other States. These memorials of
their proceedings must be intelli^ble to the
court that preserve» them, as their only evi-
dence, and we cannot, therefore, refuse to them
faith and credit. BoteUr v. 8tate, 8 Gill & J.,
881; Buggies v. Alexander, 2 Rawle, 282. Be-
sides this testimony of the contract, the plaint-
iffs proved the quantitj of the fuel that had
been used in the runnmg of the boat, and re-
lied upon the rate as settled to determine their
demand, and insisted that the defendants were
estopped to prove there was no such contract;
or to disprove any one of the averments in the
first count of the declaration in the former suit;
or to show that no saving of the wood had been
effected; or to show that the so-called experi-
ment was not made pursuant to the contract,
or was fraudulently made, and was not a true
and genuine exponent of the capacity of the
said cut-off; or to prove that the said verdict
was in fact rendered upon all the testimony
and allegations that were submitted to the Juir,
and was in point of fact rendered, as by the
docket entry it purports to have been, upon
the issues generally, and not upon the fi^
count specially.

The circuit court adopted these conclusions
of the plaintiffs, and excluded the testimony
offered by the defendants, to prove those facts.

The authority of the ree itidieata, with the
limitations under which it is admitted, is de-
rived by us from the Roman law and the Can-
onists. Whether a Judgment is to have au-
thority as such in another proceeding, depends,
an idem carpus git; quaniitas eadem, idem jus;
et an eadem causa peiendi et eadem conditio per-
Sonarum; qua nisi omnia concurrent alia res
est; or, as stated by another jurist, exeeptionem
rei judicatcB, obstare quotiens eadem qcsstio inter
easdem personam revocatur. The essential con-
ditions under which the exception of the res
judicata becomes applicable arc the identity of
the thing demanded, the identity of the cause

bee 24 How.

of the demand, and of the parties in the char-
acter in which they are litigants. This court
described the rule in Aspden v. Nixon, 4 How.,
467, in such cases to be, that a judgment or de-
cree set up as a bar by plea, or relied on as evi-
dence by way of estoppel, must have been made
by a court of competent jurisdiction upon the
same subject-matter, between the same parties
for the same purpose. The thing demanded
in the present suit is a sum of money, being a
part of the consideration or price for \he use of
a valuable machine for whidi the plaintiffs had
a patent, and is the complement of a whole, of
which tlie sum demanded in the first count of
the declaration in the former suit is the oth-
er part. The special counts in the declara-
tion of each suit are similar, being framed
upon this contract; and a decision in the one
suit on those counts in favor of the plaint-
iffs necessarily included and virtually de-
termined its sufficiency to sustain the title of
the plaintiffs on it. It was, therefore, admis-
sible as testimony. This conclusion is sup-
ported by adiudged cases, and the authority of
writers on the law of evidence. Gardner v.
Buekbee, 8 Cow., 120; Button v. Woodman, 9
Cush., 2H6; Bonnier des Preuves, sec. 766; 8
Dalloz, Jur, Generals, 256, 257, 258. Buller,
in his work on Nisi Prius, says: ** If a ver-
dict be had on the same point, and between the
same parties, it may be given in evidence,
though the trial were not had for the same
lands, for the verdict in such a case is very
persuading evidence, because what twelve men
have already thought of the fact may be sup-
posed fit to direct the determination of Uie
Jury. • ♦ • It is not necessary that the ver-
dict should be in relation to the same land; for
the verdict is only set up to prove the point in
question, and every matter is evidence that
amounts to a proof of the point in question."
Bull.' N. R, 232. The phiintiffs in error con-
tend that, conceding the record to be admissi-
ble as evidence, to render the verdict and Judg-
ment in the first suit an estoppel, it must oe
shown by the record that the very point which
it is sought to estop the party from contesting
was disunctlv presented by an issue, and ex-
pressly found by the jury, and that no estoppel
by verdict and judgment can arise in an action
on the case, or an action of assumpsit, tried
upon the general issue, because in no such ac-
tion can any precise point be made and pre-
sented for trial by a jury, and the cases of
QiUram v. JHoreteood, 3 East, 346, and Vooght v.
Wineh,2 Bam. & Aid., 662, are cited in support
of this proposition. And the conclusion would
seem to be proper for the attainment of the end,
for which authority was allowed to the res ju-
dicata as testimony. Experience has disclosed,
that for the security of rights, and the preser-
vation of the repose of society, a limit must be
imposed upon the facilities for litigation. For
this purpose, the presumption has been adopt-
ed, that the thing ad ludffed by a court of compe-
tent jurisdiction, unaer definite conditions, shall
be received in evidence as irrefragable truth.
This presumption is a guaranty of the future
efficacy and bindingoperationof the Judgment.
It presupposes that all the constituents of the
juagment shall be preserved by the court,
which renders it in an authentic and unmis-
takable form. In the courts upon the conti-

186-188

SUFBSMS COUBT OF THB UVITBD STATES.

Dec. TsBif ,

nent of Europe, and in the courts of chancery
and admiralty in the United States and Great
Britain* where the function of adjudication is
performed entire by a tribunal composed of
one or more judges, this has been done with-
out much difficulty. The separate functions
of the judge and Jury, in common law courts,
created a necessity for separating issues of law
from issues of fact; and with the increase of
commerce and civilization, transactions have
become more complicated and numerous, and
law and fact have become more closely inter-
woven, so as to render their separation more
embarrassing. The ancient system of pleading,
which was conducive to the end of ascertaining
the material issue between the parties, and the
preservation in a permanent form of the evi-
dence of the adjudication, has been condemned
as requiring unnecessary precision, and sub-
jecting parties to over-technical rules, prolix-
ity and expense. A system of general plead-
ing has been extensively adopted in this coun-
try, which rendered the application of the prin-
ciple contended for by the plaintiffs impracti-
cable, unless we were prepared to restrict
within narrow bounds the authority of the res
judicata. It was, consequently, decided that it
was not necessary as between parties and priv-
ies that the recora should show that the ques-
tion upon which the right of the plaintiff to re-
cover, or the validity of the defense, depended
for it to operate conclusively; but only that the
same matter in controversy might have been
litigated, and that extrinsic evidence would be
admitted to prove that the particular question
was material and was, in fact, contested and
that it was referred to the decision of the jury.

In Young v. Black, 7 Cranch. 565, this court
admitted in evidence a record of a former suit
between the parties, in which Judgment was
rendered for the defendant, supported by parol
proof that the cause of action in the twd suits
was the same. The court sajr: "The Con-
troversy had passed in remjudicatem; and the
identity of the causes of action being once es-
tablished, the law would not suffer them again
to be drawn into question." The current of
American authority runs in the same direction.

Wood V. Jackson, 8 Wend., 9; Eattman v.
Cooper, 15 Pick., 27Q; Marsh y. Pier, 4 Rawle,
288: Green. Ev.. sec. 531.

In the case before the court, the verdict was
rendered upon two special counts, and the gen
eral counts in assumpsit, but the verdict in the
subsequent stage of the proceedings was ap-
plied by the court only to the first count. The
record, produced by the plaintiffs, showed that
the first suit was brought apparently upon the
same contract as the second, and that tlie exist-
ence and validity of that contract might have
been litisated. But the verdict mi^ht have been
renderea upon the entire declaration, and with-
out special reference to the first count. It was
competent to the defendants to show the state
of facts that existed at the trial, with a view to
ascertain what was the matter decided upon by
the verdict of the jury. It may have been
that there was no contest in reference to the
fairness of the experiment, or to its sufficiency
to ascertain the premium to be paid for the use
of the machine at the first trial, or it may have
been that the plaintiffs abandoned their special
counts and recovered their verdict upon the

664

general counts. The Judgment rendered in
tnat suit, while it remains in force, and for the
purpose of maintaining its validity, is conclu-
sive of all the facts properly pleaded by the
plaintiffs. But when it is presented as testi-
mony in another suit, the inquiry is competent
whether the same issue has been tried and set-
tled by it. MerriamY. WhiUemore,^ Gray, 316;
Bttghis V. Alexander, 5 Duer, 488. The de-
fendants in error contend, the jury, by their
verdict, necessarily found the statements of fact
in all the counts of the declaration to be true ;
and the effect of a verdict and Judgment on the
whole declaration and a verdict and Judgment
on the first count is precisely the same, in produc-
ing an estoppel, as respects the matters con-
tained in that special count. But this is not
true. If the verdict had been rendered on the
special count in exclusion of the others, the
record itself would have shown that the exist-
ence and validity of the contract were in oues
tion. There would have been no ground for
the inquiry whether any other issue was pre
sented to the Jury. But where a number of is
sues are presented, the finding of any one on
which will warrant the verdict and judgment, it
is competent to show that the finding was apon
one rather than on another of these different is-
sues. Henderson y. Kenner,! Rich.. 474; Smt-
yer v. Woodbury, 7 Gray. 499. Nor do we
think that the subsequent application of the
verdict to a single count by the court precludes
this inquiry. The authority of the courts to
make tne application, and the circumstances
under which it is allowable, was considered by
this court in Matheson v. Grant, 2 How., 20^.
It is done for the purpose of preventing the
consequences of a misjoinder of counts in a
declaration, or of the union of insulficlent
counts with others, so as to allow a valid judg-
ment on the verdict. It had no reference to
the use that might be made of the proceedings
as testimony in another proceeding. In Mary-
land, the power to amend the record in tius
form was conferred by the Act of 1^500. S
Maxey, Laws, 484. The case is not embraced
in the earlier Act of 1785 upon this subject.
8 Har. & J., 9; 8 Har. & J.. 91. It istbeopin-
ion of the court, that the circuit court erred in
holding that the plaintiffs in error were es-
topped by the proceedings in the former suit.
for any inquiry in respect to the matters in is-
sue and actuiUly tried in that cause; and its
judgment is reversed, and the cause is remanded
for further proceedings, in conformity with tAu
opinion,

ated-«9 U. S. (2 WaU.). 42 : 72 U. 8^5 WallJ.SHI.
592, 508 ; 74 U. 8. (7 Wall.), ]CB,106; 94 IT. 8. 355, 8K.
auB; 99 U. S., 263; 3 MacAr., 248; 4 Huirhes. dSl; «
Bias., 374 ; 21 Ind., 309.

HENRY M. KELLOGG, st al.. Heirs at law
of William Kellogg,

ROBERT FORSYTH.

(See S. C, 24 How., lW-188.)

Landlord may use name of tenant, or those ^
his heirs, in writ of error.

When a landlord has undertaken the defenae of a
suit in the name of the tenant, with hla consent,

6« U.&

1860.

LeAGUA ▼. EOSBY.

261-267

the tenant cannot Interfere with the cause, to his
prejudice.

It is competent to the landlord to use the names
of the heirs of his deceased tenant to prosecute his
wt\L of error upon his eoflraffement to bear all the
coats and expenses of the suit. ^

Should the Judgment be reversed, and the cause
remanded to the circuit court for further pro-
ceedings, he may apply in that court for leave
to become defendant, instead of the heirs of the
tenant.

Argued Jan. 18, 1861. Decided Feb. 4, 1861.

IN ERROR to the Circuit Court of the Unit-
ed States for the Northern District of lUi-
Dois.

Motion to dismiss uader the circumstances,
stated in the opinion.

Mr. Williams, for defendant in error.
Mr. Ballance, for plaintiff in error.

Mr. JuHtice Campbell delivered the opinion
of the court:

The defendant in error recovered a judgment
in ejectment, in the Circuit Court of the United
States for the Northern District of Illinois,
against William Kellogg, deceased, as tenant
in possession of a parcel of land in that dis-
trict. After the judgment, the defendant died.
The attorney of the decedent, who was also his
landlord, and. who had conducted the suit on
behalf and in the name of the tenant, with his
consent, sued out a writ of error to this court
in the name of the heirs of said Kellogg. The
bond for the prosecution of the writ, and the
stipulation for costs in this court, have been
supplied by the said attorney. One of the
heirs of Kellogg objects to the prosecution of
the writ of error, ana alleges, on behalf of him-
self and his co heirs, that it is prosecuted with-
out authority, and that they have no desire
that it should be maintained, and authorize the
attorney of the defendant in error to move for
its dismissal. It appears to the court that the
attorney of the deceased defendant is a bona
fide claimant of the land, and that he is prose-
cuting the writ of error in good faith. That
he is responsible for the costs and damages that
ma^ arise from the use of the names of the
plaintiffs in error. The Statutes of Illinois re-
quire that the declaration in ejectment shall be
served upon the ^tual occupant, and the prac-
tice of the courts of that Slate authorizes the
appearance of the landlord, and his defense of
the suit, either in his own name or that of the
tenant, with his consent. WUUame v. Bmn-
ton, 3 Gilm., 600.

And when a landlord has undertaken the de-
fense of a suit in the name of the tenant, with
his consent, the tenant cannot interfere with
the cause to his prejudice. Doe v. Franklin, 7
Taunt., 9. We think it was competent to the
landlord to use the names of the plaintiffs to
prosecute his writ of error, upon his engage-
ment to bear all the costs and expenses of the
suit. Should the judgment be reversed, and
the cause remanded to the circuit court for
further proceedings, he mav apply in that court
for leave to become defendant, instead of the
heirs of the tenant.

Motion to dtamiss, overruled.

Cited-73 U. S. (6 Wall.), 348.

See 24 liow.

THOMAS M. LEAGUE, Plff. in Br.,

ff.

CYRUS W. EGERY. JOS. F. SMITH and

SARAH A. SMITH, Administratrix, &c.

(See S. C, 24 How., 264, 287.)

Mexican grant — etate decisions are rules of prop-

erty.

The consent of the federal Executive of Mexico
was essential to the validity of a grant of lands
within the border and coast leag-ues.

A grant wanting such consent, w^as void.

Decisions of the court of last resort of the State
in which property is situated, and in which the
transactions that forn> the nubject of this litiga-
tion took place, are concluMve testimony of the
rule of action prescrit>cd by the authorities of the
State, as applicable to their interpretation and ad-
justment.

Argued Jan. 29, 1861. Decided Feb. 4, ^861,

IN ERROR to the District Court of the Unit-
ed States for the Eastern District of Texas.

Thomas M. League, the pref>ent plaintiff in
error, commenced this action in the court be-
low against the defendants in error, by peli-
tion, to t^ title to a certain tract of land in the
County of Refugio, in Texas, lying on Aransas
Bay.

Od the trial, numerous instructions were
asked in behalf of each of the parties, some of
which were given and some refused. Among
other things, the court instructed the Jury that
"the grant in question, if made within the lit-
toral leagues without the approbation of the
National Government of Mexico, was void,
though on a sale grant given by virtue of con-
cessions in sale to the empresarios in the Colony
of Power and Hewetson, to be located in that
Colony, and though, by a law or decree of Con-
gress of the State of Coahuila and Texas, the
same was ratified and confirmed, and though
the Republic of Texas received the dues on
said grant, and though colonization was au-
thorized within the Colony by the approbation
of the national Executive." Verdict and judg-
ment were for the defendants. The plaintiff
brought the case to this court on a writ of error.

Mr, Rob. Hag^hesy for the plaintiff in er-
ror.

Mr. Joseph F. Smith, for himself and
agent for the others. ^

Messrs. P. Phillips and John Hemphill,
for the defendants in error.

Mr. Justice Campbell delivered the opinion
of the court:

The plaintiff sued in the district court for a
parcel of land containing two and one half
leagues in the County of Refugio, in the State
of Texas. The answer and amended answer
of the defendants contain some twenty pleas,
and a number of questions are presented by
the record; but as the decision of the cause
will be complete by the opinion the court have

NoTE.—J'urtedtetion of U. S. Supreme Court to de-
clare state law void, as in etmJUet with Stale Constitu-
tion ; to revise decrees of stale courts cut to coitstruC"
tion of st<Ue laws. Power of stale courts to construe
their owniitalute». See note to Jackson v. Lamphirv*
28 U. S. (3 Pet.), 280.

It is for state courts to construe their own statutes.
Supreme Court wlU not review their decisions except
when speciaily authorized to by statute. See note to
Commercial uk v. Buckintfbam, 40 U. S. (5 How.),
817.

665

207,263

BUFRBJCB COOBT OF THB UxnTTBO BtATEB.

Dec.

formed of the original grant from the State of
Ooahuila and Texas, from which the claim of
the plaintiff is derived, and on which it de-
pends, a statement of that g^ant will be suffi-
cient. In the year 1826. Power and Hewetson
proposed to the Government of Mexico to es-
tablish a colony on the seacoast of Texas, with-
in what is termed in their Law of Colonization
the littoral leagues. This proposal was ac-
cepted, and the partners entered upon the ful-
fillment of that enterprise. In December, 1829.
they respectively applied to the Governor of
the State of Coal^uila and Texas for the pur-
chase of eleven leases of land each, within
the limits of the Colony . This offer was ac-
cepted; the petitioners were authorized to lo-
cate their grant upon any lands in the Colony
that were vacant, or elsewhere, if there was
not a sufficiency of vacant land for that pur-
pose ; and the general commissioner of the Col-
ony was directed to deliver possession of the
land selected, and to perfect the corresponding
titles. In November, 1884, Power representea
to this general commissioner that the partners
had selected only seventeen and one quarter
leagues, and requested him to issue grants for
two tracts, one containing two and a half
leagues, and the other two and one quarter
leaeuts. to complete this contract, at a place
designated. This request of the petitioner was
complied with, and one of these grants is that
which was introduced to support the plaintiff's
title, and with which he connected himself by
mesne conveyances.

The location is within the littoral or coast
leagues described in the 4th section of the Col-
onization Laws of Mexico, of 1824 and 1828.

The litigation between the grantees and their
assigns and the defendants for this land has
been protracted in the courts of Texas, and the
opinion of the Supreme Court of that State has
been very definitely expressed upon the validity
of their titles on two several occasions.

Smith V. Power, 14 Tex., 146; SmWi v.
Pdicer, 23 Tex,. 29.

In the latter case the supreme court said :
*' No question is more authoritatively settled by
the repeated decisions of this court, than that
the consent of the federal Executive of Mexico
was essential to the validity of a ^nt of lands
of the character of the present within the bor-
der and coast leagues. Edwanrds v. Davis, 8
Tex., 821; 10 Tex., 316; Republic y. Thorn, 8
Tex.. 499; 5 Tex., 410; 9 Tex., 410, 556. In
the case of Smith v. Power, 14 Tex., 146, the
parties to this appeal, it was held, that the
grant here in question, under which the defend-
ant claims, could not be distinguished from
those which had been passed upon in former
cases; and upon the authority of those cases, it
was decided, that the grant wanting such con-
sent was void. That question, therefore, can-
not be considered as now an open one. A se-
ries of decisions, continued almost from the or-
ganization of this court down to the present
time, thus settling the construction of the old
local law, upon which the titles to real property
in the oldest and most densely peopled portions
of the State so largely depend, must be re-
garded as emphatic^ly the law of the State."
In accordance with well established principles
in this court, we accept this uniform and stable
body of judicial decision from the court of last

666

resort of the State in which the property is sit-
uated, and in which the transactions that form
the subject of this litigation took place, as con-
clusive testimoi^ of the rule of action pre-
scribed by the authorities of the State, as ^-
plicable to their interpretation and adjustment.
We do not inquire whether a more suitable
rule might not have been adopted, nor whether
the arguments which led to its adoption were
forcible or just. We receive the decisions,
having the character that is mentioned in the
extract we have made from the opinion of the
Supreme Court of Texas, as having a binding
force almost equivalent to positive law. Such
being our conclusion in respect to this ^rant,
we must sanction the judgment of the district
court that denies to it vahdity.
Judgment affirmed.

Cited— 71 n. S. (4 Wall.), 204 ; 2 Woods, 4T2.

HENRY S. FOOTE, Plff. in Br.,

CYRUS W.EGERY and JOSEPH F.SMITH.

(See S. C, U How., 297,268.)

Leagrue v. Egrery, next preoedinir case, affirmed ;
this case is iroverned by that.

Argued Jan. SI, 1861. Decided Feb. 4. 1861.

IN ERROR to the District Court of the United
States for the Eastern District of Texas.
The case is substantially the same as the pre-
ceding case.
Mr. Robert Huffhes* for plaintiffs in error.
Mr. Joseph F. Smitli, for himself.
Messrs. P. jPhiUips and John Hempihill,
for the defendants in error.

Mr. Justice Campbell delivered the opinion
of the court :

The plaintiff claimed, in the district court,
two leagues and one half of land in the County
of Refugio, in the State of Texas, which were
in the possession of the defendants. The de-
fendant answered the claim by asserting title
under grants from the State of Texas, and by
the operation of the Statute of Limitation.

The plaintiff maintained his claim by pro-
ducing a ^rant to James Power and James
Hewetson, issued under the authority of the
State o\ Coahuila and Texas, In the year of
1884, upon a contract of sale of a certain quan-
tity of lands in the Colony of Power and Hewet<
son, situate within the littoral or coast leagues.
In deriving his title under these grantees, the
plaintiff produced a deed, or an agreement for
a conveyance, from Hewetson to Power and
Walker; this paper was rejected as testimony
by the court. Walker, this vendee, died in
1886, being a citizen of, and resident in, the
United States. His brother, also a citizen of the
United States, succeeded to his estate, imd in
the year 1887 conveyed his interest to a person
under whom the plaintiff claims.

Three questions were made upon the trial in
reference to the validity of the plaintiff's tide;
1st. Whether the State of Coahuila and Texas,
in the year 1829, or in the ^ear 1^4, could sell
and convey land to a colonist within the littoril
or coast leagues, without the consent or af»pn»-

Go U.S.

1860.

M^TEB V. WUTTE.

817-822

bation of the Central Gk)yeniment of Mexico.
2d. Whether the paper executed by Hewetson
to Power and Walker was a conveyance of the
land, or merely an a^n^ement to convey. 8d.
Whether in 1836, Walker, a citizen of theUnited
States, could inherit land in Texas, from one
who was also a citizen of, and a resident in, the
United States. The decision of either of these
questions in favor of the defendants is fatal to
the plaintiff's right to recover.

The first of these questions has been deter-
mined by this court in the case of League v.
JSgery (24 How., 264), and others in the nega-
tive.

Thi8 decision is in ctccordanee with the dedskm
efihe district court, whosejudgment is^consequent-
ly, afflnned.

CHARLES F. MAYER. Surviving Permanent
Trustee of John Goodino, Appt.,

WM. PINKNEY WHYTE, Administrator de
bonis non of John Gooding, and ROBT.
M. GIBBES AND CHARLES OLIVER, Bur-
viving Executors of Robt. Olivbr, De-
ceased.

(See 8. C, 24 How., 317-82S.)

Avoard to BaUimore Company — right of trustee
of insolwnt is prior to that of personal repre-
sentative qf a claimant to an interest in such
award.

The history of the Utiflration anions the several
claimants to the money, awarded to the Baltimore
Companv by the oommiseioners, under the conven-
tion with Mexico (amounting to the sum of $354,-
430.40, of which the fund in controversT is a put,)
will be found In the 6217. S.. U How.. 629: 53 U. 8.
12 How., Ill; 65 U. 8., 14 How., 610; 68 U. 8., 17
How.. 234, and 61 U. 8., 20 How., 685.

In the case of Ooodinp v. Oliver, 17 How., 274, the
court held that the administrator was entitled to
the fund as assets of the estate, upon the sround
that the courts of Maryland had decided that the
contract of the Baltimore Ck>mpany. which had
been made in violation of our neutrality laws, was
so illegal and void, that no claim to it passed under
their iusolvent laws to the trustee.

The present case is between the trustee in subse-

auent insolvent proceeding in 18S0, under the as-
iflrnment for the benefit of creditors and the present
personal representative of the estate of Goodlnv,
and the question is whether or not this trustee took
the interest of the insolvent in the Baltimore Com-
pany in 1820 by virtue of these proceedings.

Mexico, after she had orained ner independence in
1824, assumed the debt due to the Baltimore Com-
pany, and after the recognition and adoption of
this claim by the Mexican authorities, the Govern-
ment of the United States made it the subject of
negotiation which resulted in its satisfaction, un-
der the Convention of 1880.

Therefore held : that the demand in 1820 consti-
tuted a right of property or interest in Gooding,
the insolvent* that passed to plaintiff as trustee, by
virtue of the assignment under the insolvent pro-
ceeding.

The plaintiff is not concluded by the decision of
this court in the case of The Administrator of Good-
ing V. The Executors of Oliver, reported in 68 U. 8.

Argued Jan. £4, 1S6L Decided Feb. 4, 1861.

APPEAL from the arcuit Court of theUnited
States for the District of Maryland.
This was a bill in equity filed in the Circuit
Court for Baltimore County, Md., by Charles
F. IMLayer, trustee, &c., the present plaintiff in
error.
It states that, under an application of John

See 24 How. U. 8., Book 16.

Qoodinf]^, on October dd, 18^, for the benefit
of the insolvent la wfl of Maryland, the plaintiff
in error, and his original co complainant, John
Barney (now dead), were appointed permanent
trustees of all Ckxiding's estate for the benefit
of his creditors; and that part of that estate was
a claim against the Republic of Mexico, which,
by that government's assumption of it in the
year 18!^. accrued to the insolvent; that the
whole of that claim had been vested in John
Glenn and David M. Perrine as trustees, to pros-
ecute it for those entitled to share in it before
the commissioners under the Convention of April
11, 1839, and that on June 9, 1841, the com-
missioners awarded payment to Glenn and Per-
rine of $354,436.42,one ninth of which belonged
to Gooding, and that this one ninth was paid
over to the executors of Robert Oliver, who
claimed it under an invalid assignment from a
trustee of Gooding, appointed under an appli-
cation of Gooding, in 1819, for thd benefit of
the insolvent laws of Maryland. The bill fur-
ther states that Gooding died in 1840, and that
another John Gooding became the administra-
tor and by bill in equity, filed in the United
States Circuit Court of Maryland against the
executors of Oliver, ia seeking to recover the
one ninth share thus paid over to them, and is
so claiming it in violation of the rights of the
complainants in this cause.

The present bill made Gooding, the adminis-
trator, and the executors of Oliver, defendants;
and Gooding, as a citizen of Virginia, removed
the cause to the Circuit Court of the United
States for the District of Maryland.

During the suit, the administrator, Gooding,
died, ana was succeeded by the present appel-
lee, William P.Whyte; and the trustee, Barney,
also died during the suit.

The circuit court rendered a decree dismis-
sing the bill, and the complainant took this ap-
peal.

The facts of the case further appear in the
opinion of the court and in the following cases,
which have been heretofore determine, rela-
ting to the same general subject, to wit :

OiU V. OUver, 11 How., 629; WiUiams v.
Oliver, 12 How., Ill, 126; Deaeon v. OUv&r, 14
How., 610; McBlair v. OUver, 58 U. S. (17
How.), 232: WilUams v. Oibbes, 58 U. 8. (17
How.), 239; Oooding v. Oliver, 58 U. S. (17
flow.), 274.

There was an agreement in this case signed
by the appellant and the solicitor for Oliver's
executors, to the effect that since the stocks and
money in question had, in pursuance of orders
of the circuit court, come into the possession of
Whyte, the claim of the appellant herein, in
case of the establishment of his title to said
stock and mone^, is exclusively against said
Whyte as administrator.

Messrs. Charles F. Mayer and R. John-
son, for appellant.

Mr. J. Mason Campbell, for Oliver's Ex-
ecutors.

Messrs. 6. L. Dnlany and W. P. Whyte,
for Whyte.

Mr. Justice Nelson delivered the opinion of
the court:

This is an appneal from a decree of the Circuit
Court of the United States for the District of
Maryland.

42 «q7

817-822

SUFRBHB COUBT OF THB UnITBD BtATES.

Dsc. Tkbh,

The bill was filed in the court below by
Charles F. Ma^er. the surviving trustee of John
Gooding, appointed under certain proceedings
instituted by Gooding before the commission-
ers of insolvent debtors for the City and County
of Baltimore, for the benefit of the insolvent
laws of Maryland, in October. 1829. Gooding
was an original owner of a share in what is
known as the Baltimore Mexican Company,
which, in I816, furnished General Mina with
the means to fit out a warlike expedition against
Mexico, then a province of Spain. The expe-
dition failed, and Mina perished with it soon
after he landed. Mexico having subsequently
achieved her independence, the Company made
application to the new government to assume
the debt, which it did, by a decree of the 28th
June, 1824; but payment was delayed, from
time to time, until this, with other claims
against the government, were adjusted and dis-
charged, under the Convention between this
government and Mexico, of April, 1889. The
share of Gooding, which was one ninth of the
interest in the contract with Mina, amounted,
at the time of its allowance by the commission-
ers under this Convention, to the sum of $89,-
881,82. The complainant claims this amount,
with interest, under the insolvent assi^ment
made by Gooding for the benefit of all his cred-
itors, as already stated, under the insolvent laws
of Maryland, in 1829.

The defendant, Whyte, the administrator de
bonis non of Gooding, sets up a title to the fund
as the personal representative of the estate, and
claims it as part of the assets which belong to
the heirs ana distributees.

The history of the litigation among the sev-
eral claimants to the money, awarded to the
Baltimore Company by the commissioners, un-
der the Convention with Mexico (amounting to
the sum of $854,486.42), of which the fund in
controversy is a part, will be found in 11 How.,
529; 12 How., Ill; 14 How.,610; 17How., 234;
and 20 How., 585.

In the case of Qoodingv. Oliver, 17 How., 274,
the present fund was in controversy between the
administrator of the estate, claiming it as assets,
and the representatives of Robert Oliver, claim-
ing it by virtue of a purchase from an insolvent
trustee, under proceedings instituted by Good-
ing for the benefit of the Insolvent Act of Mary-
land in 1819. As between these parties, the
court held that the administrator was entitled
to the fund as assets of the estate. The reasons
for this decree will be found in the report of
the case referred to.

Gooding, as has been already stated, again
took the benefit of the Insolvent Act in 1829.
and the question now is between the trustee
appointed under these insolvent proceeding, as
assignee of his estate for the benefit of creditors,
and the present administrator de bonis nan^ the
personal representative.

The executors of Oliver, who claimed under
the trustee in the first insolvent proceedings in
1819, failed to hold the fund against the per-
sonal representative in the case referred to, up-
on the ground the courts of Maryland had de-
cided t&at the contract of the Baltimore Com-
pany with General Mina, which had be«n made
m violation of our neutrality laws, was so
fraught with illegality and turpitude, and so
utlerlj- null and void, that no claim to, or in-

658

terest in It, passed under their insolvait laws
to the trustee; and such being the oonstructlon
of a statute of Maryland by her own courts,
this court, according to the established course
of decision, felt bound by it, and consequently
the insolvent trustee took no interest in the
Mina contract, nor Robert Oliver, or Ids per-
sonal representatives who claimed under him.

The case now comes before us between the
trustee in the insolvent proceedings of 1829, un-
der the assignment for the benefit of ^editors,
and the present personal representative of the
estate of Gooding, the former in the meantime
having died; and the principal question is.
whether or not this trustee took the interest of
the insolvent in the Baltimore Company in 1829.
by virtue of these proceedings. If the interest
is to be regarded in the same condition as it
stood, according to the judgment of the Mary-
land courts, at the time of the former insolvent
proceedings, our conclusion must be the same
as in the case of Gooding v. OUter. The per-
sonal representative would be entitled to the
fund.

It is insisted, however, by the learned coun-
sel, on behalf of the trustee, that the state and
condition of this interest liad in the meantime
changed, and had become an admitted legiti-
mate demand or debt against the Mexican Gov-
ernment, wholly exempt from any taint of il-
legality or turpitude, and hence to be regarded
as property of the insolvent, to be dcToted to
the benefit of his creditors.

This interest or demand, as it stood in 1819.
at the time of the first insolvent assignment, as
we have seen, arose out of a contract between
the Baltimore Company and General Mina,
which, as admitted, was illegal, being in vio-
lation of our neutrality laws. Whether that
constituted a valid objection to the asd^nment
under the insolvent laws of Maryland, for the
benefit of creditors, is not a question now be-
fore us. The affirmative was held by a court
having jurisdiction to decide it. If an original
question, we should not have had mudi diffi-
culty in disposing of it. This contract, then.
stood simply upon the personal obligatlon of
Mina. and as between the parties it was void
and of no effect, if Mina or his legal represent-
atives chose to avail themselves of its ill^alicy.
But Mexico, after she had gained her independ-
ence in 1824, assumed the debt due to the Ba]>
timore Company as one of national obligatioa.
which had been contracted for the service and
benefit of the nation by a general declared desw
meritos de la patria. The assumption was the
free act of a sovereign power, and wholly inde-
pendent of the question as to the legal qualities
or character of the debt, as viewed under the
statute or common law of the country in which
it originated. It was assumed by the Congress
of Mexico, upon public political consideration's
in favor of persons who had contributed their
means in support of the struggle which reanlted
in the achievement of her independence, and
the obligation rests, not upon the contract of
General Mina, or municipal regulations, bnt
upon the decree of the sovereign power and
public law of the nation.

We may add, that after the recognidon and
adoption of this claim by the Mexican authoti-
ties, the Government of the United Stale*,
through its minister to ttiat country*, matk ii

6^ U.S.

1860.

XJkitsd States y. Cabtbo.

84(^852

the Bnbject of negotiation on behalf of the
parties m interest, who were citizens, for the
purpose of procuring indemnity for the same,
and which resulted, as has been already stated,
in its satisfaction under the Convention of 1889.

We have no difficulty, therefore, in holdine
that the demand in 1829 constituted a right of
property or interest in (hooding, the insolvent,
that passed to the plaintiff as trustee, by virtue
of the assignment under the insolvent proceed-
ings of 1829. The case of CorMgys v. Vasae, 1
Pet. 193-220, is a full authority upon this
point.

As to the objection that the plaintiff is con-
cluded by the decision of this court in the case
of the former. Qooding v. Oliver, 16 How.,
274: one of the questions decided in that case
furnishes a conclusive answer to It We need
not repeat the reasons or authority which led
this court to its conclusion, which are there
stated at large.

The decree of the court below reversed and re-
manded, with directions to enter a decree for the
plaintiff against the administrators of Qooding,
deceased, in pursuance of above opinion and slip-
vlations of parties.

ated-3 Saw., 4S9.

THE UNITED STATES, Appt,

«.

JOSE CASTRO et al.

(See 8. C. Zi How., 845-362.)

Mexican grani,when invalid — record evidence of
is the highest—evidence oflossor destruction of
records — what necessary to show, to maintain
title by secondary evidence — survey and posses-
sion— parol evidence is open to dcntbt — not suf-
ficient alone — authenticity of, to be first est<U>-
lished.

A paper wantinir in all the written proceedlDgs
which the Mexican law required t)efore a errant
could be Issued, which had never t>een seen by any
one of the witnesses uutil produced two years after
the cession of the territory, with no evidence of the
time or place of its execution, with no trace of It In
the Mexican archives, and the witnesses produced
to prove the possession contradlotlngr each other,
is not entitled to oontirniatlon as a valid errant.

But apart from these circumstances the grant
Is Invalid, and not supported by legal proot, eyen
if all the testimony adduced hy the claimants was
credible, aud the witnesses above suspicion.

Whenever a party claims title to lands In Callfor-
Dia under a Mexican grant, the general rule is that
the grant must be found In the proper offlc« among
the public archives; this is the highest and best
evidence.

But as the loss or destruction of public docu-
ments may In some Instances have occurred, upon
proof of that fact, secon(^ry evidence to a certain
extent will be received.

But In order to maintain a title by secondary evi-
dence, the claimant must show, 1st, that the grant
was made in the manner the law required, and re-
corded in the proper public ofBce ; 9a, that the pa-
pers In that office, or some of them, have been lost
or destroyed ; and 3d, that within a reasonable
time after the grant was-made, there was a Judicial
survey of land, and actual possession by him, by
acts of ownership exercised over It.

The survey and possession are open and public
acts, and would support the parol evidence of the
former existence and destruction or loss of the
g'rant, and would show the kno wledgre of the officers
of the government of the title claimed and their
aqqulescence In the Justice and legality of the claim.

But without a survey and possession, the authen-
ticity of the grant would have nothing to support

See 24 How.

It but parol testimony resting only in the knowl-
edge of Individual witnesses.

If what purports to be a grant Is produced by the
party from some private receptacle, and the hand-
writing of the official signatures proved by wit-
nesses, and even proved to have been executed
when It bears date. It is but parol testimony, open
to doubt.

There Is nothing In the history of Mexican Jurls-

Srudence or Mexican grants which would Justify
lis court In supporting a Mexican title made out
by such testimony only, or by secondary evidence
of any kind short of that above stated.

Written documentary evidence, produced by a
claimant from a private receptacle, and proved by
oral testimony, is not of equal authenticity and
entitled to equal respect with the public and re-
corded documents found in the public archives.

The authenticity of the grant must first be estab-
lished before any question can arise upon the con-
ditions annexed by law to such grants, or concern-
ing the certainty or uncertainty of the boundaries
specified in It.

Argued Jan, g4f 1861, Decided Feb. A, 1861.

APPEAL from the District Court of the Unit-
ed Slates for the Northern District of
California.

Castro, the claimant and present appellee,
filed his claim with the Board of Land Commis-
sioners in the State of California, for eleven
leagues of land in San Joaquin Valley.

The commission adjudged the claim to he
valid.

The United States appealed to the District
Court of the United States for the Northern
District of California.

That court confirmed the decision of the Com-
missioners, and the United States appealed to
this court.

The case further appears in the opinion of
Uie court.

Mr. Edwin M. Stanton, Atty-Gen., for
appellants.

Mr. Edw. Swann, for appeUee.

Mr. Chief Justice Taney delivered the opin-
ion of the court:

The appellees claim title lo eleven leagues of
land in California under a Mexican ^rant.

In March. 1858, they filed a petition before
the Board of Land Commissioners, stating that
the land in question was. on the 4th of April,
1846, granted by Pio Pico, then Governor of
California, to Jose Castro, one of the appellees,
under whom the others claim as purchasers.
The petition states that the land was occupied
ana improved by the grantee soon after the date
of the grant.

It appears that the paper purporting to be
the original grant was deposited in the govern-
ment archives of the United States, on the 8th
of June, 1849, more than three years after its
date, and two years after the cession of the ter-
ritory. It was deposited not by Castro, but by
Bernard ]|f cKenzie, whose representatives claim
a portion of the land under a conveyance from
Castro; and the deed to him bears date on the
same day— that is, June 8, 1849. The follow-
ing is the translation of the grant as it appears
in the record:

Pio Pico, Constitutional Oovemor of the Depart-
ment of the CcUifomias,
[seal.]

Whereas the Lieutenant-Colonel of cavalry,
Don Jose Castro, Mexican citizen, has peti-
tioned, for the benefit of himself and his familv,
for a tract of land, for pasturing cattle, on the

659

846-862

BUFBBMB Ck>TJBT OF THE UNITED StATBB.

Dec. Tebm ,

bank of the River San Joaquin, consisting of
eleven leagues, whose measurement is tp be com-
menced from the edge of the Snowy Mountains,
following down stream — having previously
made the necessary investigations, I have, by a
decree of this day, granted to the said Senor the
eleven sitios he prays for, declaring to him the
ownership thereof, by these present letters, in
conformity with the Law of August 18, 1824, and
the Regulations of 21st November, 1828, in con-
formity with the powers with which I find my-
self invested by the Supreme Government, m
the name of the Mexican nation, under reserva-
tion of the approval of the Departmental As-
sembly, and under the following conditions:

1st. He may fence it, without injury to the
cross roads, highways and rights of way. He
may enjoy it freely and exclusively, directing
it to the best cultivation or use wmch may be
to his convenience.

2d. He shall request the judge of that district
to give him the juridical possession, by virtue
of tl^ese patents, who shall mark out the bound-
aries with the respective landmarks, placing,
in addition to them, some fruit trees, or others
of known utility.

8d. The land, of which donation is made,
consists expressly of eleven (sitiai) ranges of
large cattle, upon the banks of the San Joaquin.
>(^urement shall commence from the edge of
the Sierra Nevada. The judge who may give
the possession shall have it measured with en-
tire observance of the ordinances, and in view
of the sketch or topographical plan which the
grantee shall present.

In consequence whereof, I order that the
present title, being held as firm and valid, be
recorded in the corresponding book, and deliv-
ered to the party in interest for his protection,
and other purposes.

Given in the Gk)vemor'6 house, at the City of
Los Angeles, upon common paper, there being
none stamped, on the fourth day of the month
of April, one thousand eight hundred and forty-
six. Pig Pico.

Jose Matias Moreno,

8ec*y pro tern.

Record has been taken of this superior pat-
ent in the respective book. Moreno.

The handwriting of Pio Pico and Jose Matias
Moreno were proved by a single witness. But
no testimony was ofi!ered to show when or
where this paper was executed, nor any testi-
mony to show who had the custody of it, until
it was deposited in the public archives, as above
mentioned ; nor is any reason given for keeping'
it out of the public office for so lon^ a time,
nor how McKenzie obtained possession of it,
except by the deed from Castro, which he pro-
duced at the same time. And nothing was then
produced to support the grant but this paper ;
no petition from Castro; no informe, or decree,
as required by the laws of Mexico. And not-
withstanding Moreno's certificate that a record
had been taken of it in the respective book, no
trace of anything in relation to it is to be found
in the archives of the Mexican authorities: nor
was any attempt made to take possession until
1849, for although the appellees state in their
petition that Castro took possession soon after the
grant was made — that is, in 1846, and some of
his witnesses swear to the same fact, and some
even carry back his possession to 1844, under a

660

promise of Micheltoreno to make him a grant
in that place; yet all of this testimony is ccm-
tradicted by v insenhaler, who appears to have
been an active agent in this matter, and directed
the surveyor who made the survey in 1858.
where he should begin, and where he should
run the lines. He says that he was at the place
in October, 1849; that Castro took poaseasion in
August or September of that year, and built a
earrcU, and had cattle there in the early part of
1850; and that it would have been unsafe, in
consequence of the hostilitjr of wild Indians, to
have attempted to occupy it earlier. A paper
thus wanting in all the written proceedings
which the Mexican law required before a grant
could be issued, which had never been seen by
any one of the witnesses until produced by Mc-
Eenzie, with no ^evidence of tne time or place
of its execution, with no trace of it in the Mex-
ican archives, and the witnesses produced to
prove the possession contradicting each other,
can hardly be entitled to confirmation as a valid
grant. And even if the witness who proves the
handwriting of Pio Pico and of Moreno Is en-
titled to belief, yet the conclusion would seem
to be irresistible that the paper was fraudulently
antedated.

But. apart from these circumstances, the grant
is invalid, and not supported by legal proof,
even if all the testimony adduced by the claim-
ants was credible, and the witnesses aboTe sus-
picion.

The grants of portions of the public domain
of Mexico, the mode of obtaining them, and
the officers by whom they were to be iamied.
and the conditions to be annexed to them, were,
with great precision, regulated by law. This
law has so often been referred to and com-
mented on in former opinions of this court, that
it is unnecessary to report here its particular
provisions. It is sufficient to sav that it was re-
quired to be in writing, the oncers and tribu-
nals before which it was to pass designated*
and every step in the process, from the petition
of the party to the final consummation of the
title, was not only required to be in writing.
but also to be deposited and recorded in the
proper public office among the public archives
of the Republic.

Whenever, therefore, a party claims title to
lands in California under a Mexican grant, the
general rule is that the grant must be found in
the proper office among fhe public archives; this
is the highest and best evidence.

But as the loss or destruction of puUic doc-
uments may in some instances have occurred,
it would be unjust that a party should be de-
prived of his property by reason of an accident
which he had not the power to prevent ; and
upon proof of that fact; secondary evidence to
a certain extent will be received.

But in order to maintain a title by secondary
evidence, the claimant must show to the satis-
faction of the court: 1st, that the grant was
obtained and made in the manner the law re-
quired, at some former' time, and recorded in
the proper public office; 2d, that the papers in
that office, or some of them, have been lost or
destroyed; and 8d, he must support this proof
by showing, that within a reasonable time after
the grant was made, there was a ludicial sur-
vey of the land, and actual possession by him,
by acts of ownership exerciaed over it.

• U.S.

1860.

GbEER ▼. MBZB8.

268-278

The survey and poflsession are open and pub-
lic acts, and would support the parol evidence
of its former existence and destruction or loss.
It would show the knowledge of the officers of
the government of the title claimed, and their
acquiesence in the justice and legality of the
claim.

But without a survey and possession the
authenticity of the grant would have nothing to
support it but parol testimony, resting only inlhe
knowledge of individual witnesses; for if what
purports to be a grant is produced by the partv
from some private receptacle, and the hand-
writing of the official signatures proved by wit-
nesses, and even proved to have been executed
when it bears date, it is but parol testimony,
open to doubt, since its authenticity depends
upon the truth or falsehood of the witnesses,
instead of resting upon the certainty of the pub-
lic records of the nation.

We find nothing in the history of Mexican
Jurisprudence or Mexican grants which would
justify this court in supporting a Mexican title
made out by such testimony only, or by second-
ary evidence of any kind short of that above
stated.

It will be found, upon referring to the vari-
ous cases which have come before us from Cal-
ifornia, that none have been confirmed, unless
the grant was established according to the rules
of evidence above stated. And they are rec-
ognized in the cases of Fuenies v. HThe United
States, 22 How., 445; U. 8. v. Bolton, 28 How.,
341: Lueov. U. S., 23 How., 615; and Pakner
V. U. iS., 24 How., 125, decided at the present
term. We repeat again these rules of evidence,
because it would seem from the case before us
that the Board of Land Commissioners and the
circuit court regard written documentary evi-
dence, producea by a claimant from a private
receptacle, and proved by oral testimony, as of
equal authenticity and entitled to equal respect
with the public and recorded documents found
in the public archives. But such a ruie of evi-
dence is altogether inadmissible. It would make
the title to lands depend upon oral testimony
and, consequently, render them insecure and
unstable, and expose the public to constant im-
position and fraud. . Independently, therefore,
of the strong presumptions against the authen-
ticity of the paper produced as a grant, it can-
not, upon principles of law, be maintained, even
if the testimony produced by the claimant was
worthy of belief.

The case of Fremont v. The United Statee, 17
How., 542, is referred to, both in the opinion of
the Board of Land Commissioners and the circuit
court, and relied on to support their respective
opinions. But that case has no analogy to this.
There the title papers, from the petition down to
the grant, were found in regular form in the Mex-
ican archives. Their authenticitv was, there-
fore, attested by the record: and the reasons for
the delay in making the survey and taking pos-
session were made known at the time to the
governor, and approved and allowed by him.
All of this appeared in the regular official doc-
uments ; and the difficulty that arose in his case
arose upon the conditions annexed by law to an
undoubted and admitted grant. Here the diffi-
culty is, whet her there is legal evidence to prove
that this alleged grant was ever made by the Mex-
ican authoritieB. And the fact that it was so

Bee 24 How.

made must be established by competent evi-
dence, before any of the questions which arose
and were decided in Fremonfs case can arise
in this.

The authenticity of the grant must first be
established before any question can arise upon
the conditions annexed by law to such grants,
or concerning the certainty or uncertainty of the
boundi^es specified in it. And in the case be-
fore us, the grant itself not being maintained
by competent testimpny, we need not inquire
whether the conditions were complied with, or
the descriptibn of place and boundaries suffi-
ciently certain.

And for the reaeone above stated the judgment
of the circuit court mutt be reversed, and the case
remanded to the district court, toiih directions to
dismiss the petition.

Clted-«6n. S. (1 Black.), 261, 805, 663; 68 U. S. a
Wall.), 745; 78 U. 8. (10 WaU.), 241, 244; 2 Sawy., 048.

JOHN GREER et al., Plffs in Er.,

S. M. MEZES, MARIA Db La SOLIDAD,

ORTEGA De ARGUELLO and JOSE

RAMON ARGUELLO.

(See S. C, 24 How., 288-278.)

Ejectment not defendable,on mere equitable title —
what defendants may be joined in — effect of
joinder — when sepa/rate trial may be had — ef-
fect of general verdict.

Defendants claiming under a merely equitable
title, are not in a condition to dispute in a court of
law the correctness of the survey made by the

Bubllo officer or resist the plaintiffs' perfect legal
tie.

Although the circuit court has adopted the mode
of insUtutlDg the action of ejectment by petition
and summons, it is still governed by the principles
of pleading and practice which have been estab-
lished by courts of common law.

In an action of ejectment, a plaintiff will not be
allowed to Join in one suit several and distinct par-
cel8« tenements, or tracts of land, in possession of
several defendants, each claiming for himself.

But he is not bound to bring a separate action
against several trespassers on his single, separate
and distinct tenement or parcel of land.

Each defendant has a right to defend, especially
for such portion of the land as he claims ; and if on
the trial he succeeds in establishing his title to it,
and in showing that he was not in possession of any
of the remainder disclaimed, he will be entitled to
a verdict.

He may also demand a separate trial, and that his
case be not complicated or impeded by the issues
made with oUiers, or himself made liable for costs
unconnected with bis separate litigation.

If he pleads nothing but the general issue, and is
found in possession of any part of the land de-
manded, he is considered as taking defense for the
whole.

If a general verdict leaves each one liable for all
the coet8,it is a necessary consequence of their own
conduct, and no one has a right to complain.

Argued Jan. f5, J861. Decided Feb. 11, 1861.

IN ERROR to the Circuit Court of the Unit-
ed States for the Northern District of Cali-
fornia.

This was an action of ejectment commenced
by Mezes and others, the present defendants in
error, in the coturt below, against the present
plaintiffs in error; who had intruded upon
various portions of a tract of land claimed by
the complainants. The verdict having been

661

268-^78

SUPBBMB Ck>UBT 09 TBB UlTlTBD BtATBL

Dec. Tbbic,

rendered In favor of the oomplainants, the de-
fendants brought the case to this court on ex-
ceptions taken to the rulin;; of the court below,
excluding certain testimony offered by them
and giving certain instructions, the reverse of
those requested by them.

The nature of these exceptions appears in the
opinion of the court.

Me89r$. J. B. Crockett and M.' Blair, for
plaintiffs in error:

1. The Coppinger grant is by metes and
bounds and not by quantity, and is without the
usual provision as to the surplus. No survev
was necessary to locate and segregate the land[.
A grant or confirmation of a specific parcel of
land conveys the title propria vigors without a
survey.

Guitard v. Stoddard, 16 How., 494; BisMv.
PenroM, 8 How., 817; Stanford v. Taylor, 59 U.
8. (18 How.), 409; U. 8, v. Sutherland, 60 U.
8. (19 How.), 868.

2. The grant to Coppinger conveyed the
legal, and not a mere equitable title. The fact
that it is made subject to the approval of the
Departmental Assembly, does not impair its ef-
fect as a legal title.

Ffrris v. Coover, 10 Cal, 689.

8. If the title was before only equitable, the
final confirmation by metes and bounds has
converted it into a complete legal title, con-
clusive as against the United States; and after
such confirmation there was no title, either
legal or equitable, in the United States which it
could convey by a patent to a third person.

LayfayetU'8 Heirs v. Kenton, 69 U. 8. (18
How.), 197; Quitard v. Stoddard, 16 How., 494;
Stanford v. TayUrr, 59 U. 8. (18 How.), 409:
Ledoux V. Black, 59 U. 8. (18 How.). 473; La
Roche V. Jonee, 9 How., 156; Grignonv. Astor,
2 How., 819; Chouteau v. Bckhart, 2 How.,
844; Strother v. Lucas, 12 Pet., 410; 8 Dall.,
456; Harrold v. Simonda, 9 Mo., 828.

4. If the foregoing positions are not main-
tainable, nevertheless it cannot be doubted that,
by virtue of the grant and confirmation, Cop-
pinger acquired a clear, definite and fixed
equity to all the land covered by the ffrant and
included within the boundaries confirmed to
him. It is not a general floating eouity to a
given quantity of land to be afterwards located
by a survey, and attaching to no particular
land until thus located, but a present and certain
equity attaching to this particular tract and to
the whole of it. Even where it is not a grant by
metes and bounds, but by ^[uantitj to be taken
within certain exterior limits, as m the case of
Fremont, 58 U. 8. (17 How^, 542, hud Beading,
59 U. 8. (18 How.). 1. The Supreme Court
decides that the grant conveys a present and
immediate interest, subject, however, to be de-
feated by a subsequent grant of the land to
another; but in a grant by metes and bounds,
the grantee acquires a direct and immediate
interest in the whole, which cannot be defeated
by a subsequent grant.

Garland v. Wynn, 61 U. 8. (20 How.), 6;
Les Bote v. Bramell, 4 How., 62.

5. If the confirmation of the Coppinger grant
conveyed or operated by law as a legal title, it
is equivalent to a patent, and in an action of
ejectment, those holding under it may assail an
adverse patent and survey, and dispute their
correctness, even without the aid of the Act of

Congress of March 8, 1861, estabtishing the
lana commission.

Les Bois v. Bramell, 4 How., 462; Doe ▼. Es-
lava, 9 How., 421,

6. But even though the confirmation is not a
legal, but only an e(]uitab1e title, still it is a
definite and fixed equity to the whole landocm-
veyed by the confirmation, and the defendanu
being in possession under this equity, the olaint-
iffs' patent and survey cannot *' affect'' their
interest.

See the Act of March 8, 1851 ; Cousin v. Blanc,
60 U. 8. (19 How.), 202.

7. Adverse claimants, holding either a valid
legal or equitable title, may contest the correct-
ness of the patent and survey under a conflict-
ing grant, so far as relates to boundaries and
location.

Menard v. Maesey, 8 How., 298; Bojfee v,
Papin, 11 Mo., 16; Archer v. Baeon, 12 Mo.,
149.

8. The court erred in directing a general ver-
dict against all the defendants when they pleaded
separately, and there was no proof of a joint
occupancy of any part of the disputed premises.
The verdict should have found of what part
each defendant was severally in possession, and
the court should so have instructed the Jury.

Mr, Louifl Janin, for defendant in error:

I. By the the uniform legislation of Con-
gress, the title passed out of the government
only by the patent. In respect to California
land claims, this is especiallyprovided for.

9 Stat, at L. ,682; see, also. Hooper y. Seheimer,
64 U. 8. (28 How.). 249; BagneU v. Broderiek,
18 Pet., 460.

II. The title of the plaintiff in error is an
equitable and not a legal title. It was a granl
by the governor, subject to the approbation of
the Departmental Assembly, which it never re-
ceived. It was unaccompanied by judicial pos-
session and never surveyed, so far as the record
enables us to judge.

See Carey Jones' Report of March 9. 1850, pp.
4and*8; U. S, v. Beading, 58 U. S. (18 How.).
7; Hancock v. McKinney, 7 Tex., 884; U. S. v.
PachecoM U. 8. (20 How.). 261; Tontz v. U. X,
64 U. 8. (28 How.), 498; Hanson's caae. 16
Pet., 196.

III. The title of the plaintiffs in error, being
only equitable, cannot be set up in an action c?
ejeetment, as a defense against the l^al title of
the defendants in error, and any error which
may have been committed in the survey of the
legal title, cannot be investigated or corrected
in this form of action.

Bairdv. Wolfe, 4^ Mch,, 562; Fenn ▼. Holme,
21 How., 488; Hiekey v. Stewart, 3 How.. 750;
BagneU v. Broderick, 18 Pet., 486; Minler v.
Orommelin, 69 U. 8. (18 How.), 88; Boardman
V. Beed, 6 Pet.. 828; Spencer v. LapsUy, 61 U.
8. (20 How.), 272; Fidd v. Seabury, 60 U. S.
(19 How.), 828, Waterman v. Smith, 13 Cal..
878; BisseU v. Penrose, 8 How., 817; Ledoux r.
Black, 59 U. 8. (l8 How.), 475; WiUoty. Saf^d
f<yrd, 60 U. 8. (19 How.), 81; West v. Ooehron^
58 U. 8. (17 How.). 418; Co<yper v. BoberU, 59
U. 8. (18 How.), 192; Bryan v. Forsyth, 60 U.
8. (19 How.), 884; BaUance v. Papin, 60 U. S.
(19 How.). 343; U, S, v. FosmU, 61 U. S. (^
How.), 426; Moore v. WUkitkeon, 18 CaL, 47»:
Boggs v. Merced Mining Co., 14 CaL, 279. and
ToufU V. HmoeU, 14 Cal., 466, dadded by Iha

1860.

Grbbb v. Mkzks.

261^273

Supreme Court of California in 1859, pamphlet
edition, pp. 50 and 78.

irsrris v. GooDer; 10 Cal., 589.

IV. But it will be said that it has been held
by the Supreme Court of California, that an
action of ejectment will lie directly upon a
Mexican grant and that, accordingly, the plaint-
iffs in error should have been permitted to give
their Mexican title in evidence, and to connect
themselves with it. By the practice of Cali-
' f omia, these parties would not be permitted to
give that grant in evidence, because it was not
set up in me answer.

Piercyv. 8Mn, 10 Cal., 23.

But whatever be the rule of proceeding in the
state courts of Calfomia, the federal courts
established in that State are bound to maintain
the distinction between cases at law and in
equity.

See Bennett v. BitUenoorth, 11 How., 669:
F^nn V. Holme, 62 U. S. (21 How.), 481 ; Hooper
y. Scheim&r, 23 How., 249.

y. Another point suggested by the bill of
exceptions of the plaintiffs in error is, that in-
asmuch as they had severed in their answers,
they were each entitled to a separate verdict.
There might be some reason in this, if in their
answers and their proof they had shown their
separate holding, and the original plaintiff had
obtained a^inst them a verdict for damages in
compensation for rents and profits. But to re-
quire it in a case like this, would be a vexatious
and impracticable technicality. We proved
that they were all within the limits of our pat-
ent, whatever might be the extent of their re-
spective claims.

VaUefo V. Fap, 10 Cal., 877; Smith v. Shack-
lefard, 9 Dana, 453; Winans v. Christy, 4 Cal..
80; 5 Wend., 98; Jaekeon v. StOes, 8 Cow.,
856; ElUs v. Jeane, 7 Cal., 409; BitcMe v. D<yr-
land, 6 Cal., 40; Anderson v. Pa^kerfi Cal.,201.

Mr, Justice Grier delivered the opinion of
the court:

The defendants in error are the owners of the
tract of land called Las Pulgas, the title to
which was confirmed to the heirs of Arguello
by this court (18 How., 589). This action of
ejectment was brought by them against Greer
and a number of others, now plaintiffs in
error. The defendants pleaded severally the
^neral issue, but no one of them took de'fense
specially for way definite part of the land
claimed in the writ, or made a disclaimer as to
any portion of it. The plaintiffs gave in evi-
dence the survey and patent of the Las Pulgas
tract, and proved the defendants to be in pos-
session within its boundaries.

Their Mexican title was dated in 1835, and
had the approbation of the Depaitmental As-
sembly, preceded and followed by possession.

Their grant, as confirmed by this court, is
bounded on the north by the Arroyo of San
Francisquito, on the south by that of St. Mateo,
on the east by the estuary, and on the west by
the Canada or valley of Raymundo, " being four
leagues in length and one in breadth." The
plaintiffs having shown a complete legal title to
the land in dispute, were entitled to a verdict,
unless the defendants could show a better.

They claimed under a grant to Juan Cop-
pinger, dated in 1840, for the valley of Ray-
mundo, specifying nothing as to quantity, but

Bee 24 How.

describing it as bounded on the east by the
rancho of Las Pulgas, and on the west by the
Sierra Morena, south by rancho of Martinez,
and north by the lagune. The espediente pro-
vides, that *' the judge who shall deliver pos-
session of the land shall have it measured ac-
cording to the ordinance, specifying the amount
of siOos it contains."

This srant had never leceived the sanction
of the Departmental Assembly, nor had pos-
session ever been delivered, or any precise
boundaries ascertained by survev ; and although
confirmed as a valid, equitable claim by the
District Court of Califomia, it has never been
surveyed, nor had a patent been issued for it
under the decree of confirmation. The claim
of defendants to the land is, therefore, not yet
completed into a legal title. Its boundaries and
quantity still remain uncertain and undefined.

The Sierra Morena may be sufficiently defi-
nite as the boundary of a State or kingdom, or
of a vallev, but is certainly a very vague and
uncertain line for a survey of land. The east
em boundary called also for the rancho of Las
Pulgas; this was also uncertain till the western
line of Las Pulgas was correctly surveyed.
Coppinser's grant calling for land outside of
the JPuTgas grant, and to be bounded by it,
could have no possible interference or claim to
land within it. Hence, the defendants could
resort to no other defense than to offer proof
that the survey and patent of Las Pulgas were
erroneous as regained the location of the
western line, because it embraces a portion of
the level land in the Canada or vallev Ray-
mundo, which is the call of its western bound-
ary.

It is the refusal of the court to admit testi-
mony for that purpose which is now alleged
as error.

The testimony offered mi^ht well have been
rejected as irrelevant, for it does not follow,
that if the western line of Las Pulgas, as run by
the Surveyor-General, included level land^in the
valley, that it was at all incorrect. The west-
ern boundary line of Las Pulgas, as adjudged
by the decree of this court, had two several
points of description to fix its location; one
uncertain 'and vague, the other admittin^^ of
mathematical certflnty . The call of the Canada
Raymundo on the west is as vague as that for
the Sierra Morena, a chain of mountains. But
the breadth of one league from the estuary or
bay was a certain and definite boundar jr on the
east, and showed conclusively the precise loca-
tion of the line. Las Pulgas could claim to
extend but a league west, whether that reached
to Uie hills on the east of the valley or not, and
was entitled to have the lea^e in breadth,
whether it carried the western hne over the hills
or not. Coppinger's grant can chum only what
is left after satisfying Las Pulgas, which calls
for a certain quantity and a certain boundary.
There was no offer to prove that the survey of
Las Pulgas was extenaed beyond such limit.

The court below refused to admit the testi-
mony, not for its irrelevancy, but its incompe-
tency; because the defendants, claiming under
a merely equitable title, having neither survey
nor patent, were not in a condition to dispute
in a court of law the correctness of the survey
made by the public officer or resist the plaint-
ifl's perfect legal title.

287-800

SuFBfiBUE COUBT OP THB UHIIieD STAtSfl.

Dec. Tbbx,

The fact and the conclusion of the court
from it are undoubtedly correct. It is well
settled that both plaintiff and defendant must
produce a strictly legal title, whether it be in
fee or as lessee for years.

The plaintiff had shown a complete legal
title; the defendant had not, for the reasons
already stated.

The Act of 3d March, 1851, ch. 41, sec. 18
(9 Stat, at L.,' 681), makes it the duty of the
Surveyor- General to cause all private claims
which shall be confirmed, to be surveyed, and
'* to decide between the parties with regard to
all such confirmed claims as may conflict or in
any manner interfere/' It is true this may
not preclude a legal investigation of the sub-
ject bv the proper Judicial tribunal. In this
case there can be no conflict of title as between
Las Pulgas and the later grant to Coppinger,
which calls for it as a boundary. The survey
is conclusive evidence as to the precise location
of the western line of Pu^as, as between these
parties in this suit. If Coppinger and those
claiming under him charge that this line has
not been properly established, either by mis-
take or fraud, they might have had a remedy
under the Idth section of the Act, and may

Cibly yet have it by flling a bill in chancery,
in tlus* action of ejectment, the defendants
cannot call upon a jury at their discretion to
alter a boundary line which has been legally
established by the public officer specially in-
trusted with this duty.

The only other exception is, to the following
instruction of the court as to the form of the
verdict: "That they should find a separate
verdict against such of the defendants as were
proved to have been in possession, at the com-
mencement of the suit, of separate distinct
parcels of the said land held in severalty, and
that the lury might find a general verdict
against all the other defendants who were
proved or admitted to have been, at the com-
mencement of the suit, in possession of some
portion or portions of the premises in contro-
versy, the limits or boundaries of whose pos-
sessions were not defined by the proof ; and this,
whether such possessions and occupation were
joint or several.''

We can perceive no error in this instruction.
Although Uie circuit court mav have adopted
the moae of instituting the action of ejectment
by petition and summons, instead of the old
fiction of lease, entry and ouster, it is still
governed by the principles of pleading and
practice which have been established by courts
of common law. The hybrid mixture of civil
and common law pleadings and practice intro-
duced by state codes cannot be transplanted in-
to the courts of the United States.

In the action of ejectment, a plaintiff will
not be allowed to join in one suit several and
distinct parcels, tenements, or tracts of land,
in possession of several defendants, each claim-
ing for himself. But he is not bound to bring
a separate action against several trespassers on
his single, separate and distinct tenement or
parcel of land. As to him they are all tres-
passers, and he cannot know how they claim,
whether jointly or severally; or if severally,
how much each one claims; nor is it necessary
to make such proof in order to support his
action. Each defendant has a right to take

664

defense specially for such portion of the land
as he claims, and by doing so he necesflarily
disclaims any title to the residue of the land
described in the declaration; and if on the
trial he succeeds in establishing his title to so
much of it as he has taken defense for, and in
showing that he was not in possession of any
of the remainder disclaimed, he will be en-
tilled to a verdict. He may also demand a
separate trial, and that his case be not compli-
cated or impeded by the issues made with
others, or himself made liable for coats uncon-
nected with his separate litigation.

If he pleads nothing but the general iBsue,
and is found in possession of any part of the
land demanded, he is considered as taking de-
fense for the whole. How can he call on tlie
plaintiffs to prove how much he daims, or the
jury to find a separate verdict as to hisaepaimie
holdine, when he will neither by his pleading
nor evidence signify how much he claims ?
This was a fact mown only to himself, and one
with which the plaintiff had no concern and
the jury no knowledge. If a general verdict
leaves each one liable for all ue coats, it is a
necessary consequence of their own conduct,
and no one has a right to complain.

In the case of McQarvey v. LiUU, 15 Cal.,
27, when the same objection was made to the
charge of the court, the Supreme Court of
Caliromia overruled it, and held " that tlie de-
fendants being in possession, and there being
no proof of the particular portions which they
severally occupied or claimed, there 'was no
error in refusing to direct the jury to bring in
a separate verdict as to each."

T%6 judgment of the circuit court ie, tker^tfre,
a^rmed,

Cited--66 tJ. S. a Blaok.), 844, 845; 4 Saw.
Gal., 628 : 36 Cal., 154 ; 127 Pa. St., SO.

GEORGE B. BI88ELL, DAVID T. ROBIN-
SON AOT CALVIN DAY, Plffa, in J3Pr.

THE CITY OF JFFPBR80NVILLE.

(See S.C., 24 How., 287-800.)

OUy bonds — laws to olmate irregularitiee m their
isme, a/re within UgUHatite authorHy-^reeUaiM
in bonds, evidence of facts authorising tkmr ie-
sue — innocent holders may assume their rerity
— corportUions must adhere to truih m deal-
ings with other parties.

The oommon council of a oity subscHbed to th«
stock of a railroad company, and Issued bonds in
the name of the City, and delivered tbe aajne to
the railroad company, in pajrment for the stock.

Plaintlffa became the holders for value of aoine of
these bonds, in the usual course of their buBincoB.
and brought suit on coupons for the interest.

Laws, to obviate mistakes and irregularitJcs in
the proceedings of municipal oorporatiooa wbcxt
they do not impair any contract, or injurloualy af-
fect the rights of third persons, are within tbe
competency of the legislative authority.

Authority on the part of the oommon ootmcjl to
subscribe for the stock, and to issue the bonds oo
the petition of three fourths of the legal voters
of the City, is shown to have existed.

By the terms of an explanatory Act tliey were
authorized to ratify and affirm the subscription. If
the obligation or liability incurred bad been con-
tarcted on the petition of three fourths <rf tbe le>
gal voters of the City.

I860

BiSSBLL y. CiTT OF jB79BRS0imLLB«

287-800

The Board unanlmouBlv rcflolved to ratify and
confirm the contract with the railroad company,
and subBequently Issued the bonds, reciting In each
that It was Issued by authority of the common
council of the City, '* three fourths of the leariil
▼oters of the City havinar petitioned for the same as
required by the charter/'

The record of the resolution ratifying- and con-
flnnlnff the contract, and the recital In the bonds,
furnish conclusive evidence in this case that the
common council did readjudicate the question,
whether the requisite number of the legal voters
of the City had signed the petition.

When the contract bad been ratified and affirmed,
and the bonds issued and delivered to the railroad
company in exchangre for the stock, it was then too
late to call In question the fact determined by the
common council, and a fortinri it Is too late to raise
that question in a case like the present, where it is
shown that the plaintiffs are Innocent holders for
value.

Where, in the bonds or the recorded proceedings,
there is nothincr to indicate any irregrularlty, or
even to create a suspicion that the bonds had not
been issued pursuant to a lawful authority, the
railroad company and their assigns, under the cir-
cumstances of this case, had a right to assume that
they imported verity.

Tnerule, that a corporation, quite as much as an
Individual, is held to a careful adherence to truth
In their dealings with other parties, and cannot, by
their representations or silence, involve others in
onerous engagements, and then defeat the claims
which their own conduct has superinduced, again
stated.

Zabriskle v. The Cleveland Railroad Co., 64 U. S..
affirmed.

Argued Jan. 31, 1861, Bedded Feb. 11, 1861.

IN ERROR to the Circuit Court of the United
States for the District of Indiana.

This was an action of aseumpsU brought bv
Bissell and others, the present appellants, citi-
zens of the State of Kentucky, in the court be-
low, a^nst the City of Jeffersonville. a mu-
nicipal Corx)oration of the State of Indiana,
upon coupons of bonds made and issued by the
City of Jeffersonville to the Port Wayne and
Southern Railroad Company of the same state,
and by that company negotiated to the plfdnt-
iffs below. The defendants pleaded the gen-
eral issue. There was a trial by jury which
resulted in a verdict and Judgment for the de-
fendants. From this judgment the present writ
of error was prosecuted.

The case further appears in the opinion of
the court.

Mewre. D. McDon&ldt Tail ft Perry*
J. Smith and A. G. Porter, for the plaint-
iffs in error:

The principal question of the case is: Was it
competent for the City of Jeffersonville to go
behind her own records, and give evidence to
disprove them and show that they were not
truer We unhesitatingly say that it was not
competent. Whether or not three fourths of
the legal voters of the City of Jeffersonville
petitioned the common council to subscribe the
stock to the Railroad Company and issue the
bonds, was a question of fact. This .question
was evidently to be determined by the council
at the time the petitions were presented, or as
soon thereafter as it could conveniently be done.
This was the understanding of the council as is
shown by their action. They appointed a com-
mittee to ascertain the fact, and on the report
of this committee, by a unanimous vote.solemn-
ly determined that "more than three fourths
of the legal voters of the City " had signed the
petitions, and placed that determination of the
fact upon their records.

Kearly two years afterward the council ' 'con-
See 34 How.

firmed and ratified" the subscription. Neither
the council nor any citizen ever controverted
the fact so determined, until it was done in this
suit.

The bonds were issued by the council under
the seal of the City, stating on their face that
they were " issued by authority of the Com-
mon Council of the City of Jeffersonville,
three fourths of the legal voters of said City
having petitioned for the same as required by
the charter." They are negotiable paper. They
were delivered by authority of the council to
the Railroad Company on the 8th of May, 1855,
to be negotiated. The City, by its proper-offi-
cers under its seal, certified that the City did
subscribe the stock *' upon the written petition
of three fourths of the legal voters thereof (and
largely exceeding this)." These were exhibit-
ed to the plaintiffs in error in Hartford, Con-
necticut, in the latter part of August, 1855, at
the time the bonds were negotiated to them,
and they took them on the faith of the facts so
found, recited, and certified to them by the
City under its seal, no citizen of the City ob-
jecting or disputing the truth of them. These
facts forever estop the City and all its citizens
from averring, as against these appellants, that
three fourths of the legal voters of the City did
not petition the city council to make the sub-
scription, and issue the bonds. They must be
held to have told the truth when Iney say in
so many different ways, and in maimer so
solemn, that three fourths of the legal voters of
the City did petition the council to make the
subscription and issue the bonds.

1 Qreenl. Ev., sec. 22.

1. Because the City was the proper party to
examine that question and determine that fact
for itself ana its citizens, and it did, at the
proper time, examine and determine it, and de-
clare upon its records that more^than three
fourths of the legal voters did petition.

2. Because, over its own seal in the bonds
sued on, it averred that three fourths of the
legal voters of the City had petitioned.

8. Because it averred to the appellants,
over its seal and the signature of its clerk,'
thai the subscription to the Railroad Company
was made upon the petition of three fourths of
the legal voters of the City and largely exceed-
ing that number.

Ang. & Ames on Corp., 158; Clark v. The
WooUnManf. Co., 15 Wend,, 256; Cartoer v.
Jcbckion, 4 ret., 83; Crane v. MorrU, 6 Pet.,
598; THmbU v. Tf^e State, 4 Blackf., 485; Low
V. KidweU, 4 Blackf., 553; Beckett v. Bradley,
7 Man. &Gr., 994; MiUerv. EUiott, 1 Ind., 484.

4. Because, by those acts and words of its,
it willfully caused the appellants to believe
that three fourths had petitioned and thereby
induced them to part with their money on the
security of these bonds.

Pickard v. Seare, fi Adol. & E., 469; Thomp-
«mv. Thompson, 9 Ind., 884; 1 Greenl. Ev.,
sees. 22, 207; DeeeU v. OdeU, 8 Hill. 219.

5. Because it and its citizens have acqui-
esced in the decision on that question made by
its council in August, 1858, from that lime
until the commencement of this suit, in 1856,
and its citizens are still acquiescing, and it
cannot volunteer a defense in their behalf.

Smead v. Indianap., Pitte, and Cleve. B. B,
Co., 11 Ind., 104.

665

387-800

SUFBBMB COUBT OF THB UBISBD BTATMb

Dac. Tkbm,

6. Because the appellants are bona fide hold-
ers of the bonds and coapons sued on, and were
not parties to the fraud, if there was fraud
in making the subscription and issuing the
bonds.

The Bay. Brit. Batik y. Turquand, 82 Eng.
L. & E.. 273; 86 Eng. L. & E., 142; Cla^
V. The County of Cedar, 6 la., 15.

It will be seen, therefore, that the defend-
ants below were estopped by all of the three
kinds of estoppel known to the law.

By record : for the proceedings of the council
are made records by tne charter of the City.

1 Ind. R, 8., 207, sec. 20.

By deed: for the bonds, being under the seal
of the City, are specialties.

15 Wend., 256; Ang. & Ames, Corp., 158,
ch. 7, sec. 7.

By matter in pais; by the citizens standing
by and not controverting the fact found by the
council, that three fourths of the legal voters
of the city had petitioned.

9 Adol. & E., 469: 9 Ind., 884; 8 Hill, 219;
21 Barb., 656; 11 Ind.. 104; 9 Ind., 88.

See further, on the general question of estop-
pel, Story, Ag., 547, sec. 448; 568, sec. 452;
82 Eng. L. & E., 272; 88 Eng. L. & E., 21;
81 Eng. L. A Eiq., 59, 58; 89 Eng. L. & E..
28; 4 Cow. & Hill, Notes, j)age m7; 8 Cow.
& Hill, Notes, p. 200; 14 Pa. St., 81; 8 Sand.,
162; 16 Mass., 94; 28 How., 400; 21 How.,
441; 5 Ohio St., 59; 6 Ohio St., 119; 7 Ohio
St.. 827; 8 Ohio St., 894.

The City of Jeffersonville was a Corporation
and bound to do what its charter required. It
was, therefore, bound to ascertain and decide
as to sufflciencv of petitions before issuing
bonds. An omission to ascertain, or a negli-
gent performance of the duty, would make the
City liable to individuals for any loss or injury
caused by ^uch omissions or negligence. The
principle is thought bv some judges to be bet
ter settled, which holds a city liable for an at-
tempted performance of duty which misleads
and injures, than for a total omission. In this
case it was not omission, but the present de-
' fense is grounded on the idea that the City, by
mistake or fraud, represented that it had per-
formed the duty when it had not, and repre-
sented facts to have been ascertained which had
not been ascertained. Powers conferred upon
those who represent the corporate body are
deemed to be conferred upon the corporation
itself.

Wiet V. Brockport, 16 N. Y.. 170, note.

Municipal corporations are liable for injuries
occasioned bv negligence of officers as well as
for mere misfeasance — mere omissions as well as
wrong doing.

Conrad v. Ithaca, 16 N. Y., 158; 5 Bing.. 91 ;
8 Barn. & Ad.. 77; 1 Bing. N. C, 222; 8 Hill,
612; 8 N. Y., 464; 9 N. Y., 168; 17 N, Y., 104;
62 U. S. (21 How.), 210: 85 Pa. State, 298; 28
111., 835.

The defense in this case pressed the pomt
that the act of the city council in question was
the act of a tribunal of limited and special ju-
risdiction. But to make this defense available,
they must necessarily ignore and exclude from
it the leading feature of the case. They must
deny what was the undeniable intent of the
Legislature, viz. : that this city council should
itself inquire into and find the jurisdictional

666

fact. The record shows that a dona ./bfe peti-
tion was filed, numerously signed. In this
class of cases, where facts are preliminarily to be
proved as basis of the right to employ the proc>
ess, if the proof has a legal tendency to
make out the case required by the statute in a
collateral action, the process will be deemed
valid.

The decision may be erroneous, but it is not
void.

Skinnion v. Kelley, 18 N. Y., 856; MOler v.
Brinkerhoff, 4 Den., 118: Van AUtyne ▼. Br-
wine, 11 N. Y.. 831; 4 HUl, 598; 17 Wend..
464; 12 Pick., 572; 19 Barb., 81; 6 Wend., 655:
5 Eng. C. L., 728; 21 Barb., 656: 4 Phil. £v..
Vol. 1017, 1021; Cow. & Hill, Notes, index,
noiee lY., p. 1676, gives the true summary
thus : • 'Jurisdiction — wan t of. may always be
shown in answer to judgments, &c. Even in
opposition to the record, when, &c.'* But "not
in opposition to express adjudication on juris-
dictional facts." Where the judicial tribunal
has not general jurisdiction of the subject-
matter, but may exercise it under a particular
state of facts, 'those facts must be specially
averred and established, and when so estab-
lished on a hearing of all proper parties, cannot
be impeached in any collateral proceeding.

81 Barb., 661; 4 Den., 119; 4 Hill, 59«: 10
Wheat., 192; 3 N. Y., 41; 1 Den., W7; 9
Johns., 180; 7 How., 172; 5 N. Y.. 434; 6
Pet., 709; 2 How., 888.

The records of a corporation are the best evi-
dence of its acts, and they exclude all evidence
of a secondary grade in cases like this.

5 Wheat ,424; 1 Greenl. Ev.,157; 1 SUrk..60.

Messrs. R. Crawford and R. Johnson,

for the defendants in error:

The fallacv of confounding the common
council and the City as if they were the same,
runs through much of the plaintiif's argument;
whereas, the council was merely the agent of
the City.

Meeh. Bank v. N. T. AN. H. R. R. Co.,
18 N. Y.,640.

And like anv other principal, the City would
be bound by the authorized, but not by the un-
authorized, acts of its agent.

I. Was it error to permit the defendant to
prove that three fourtlis had not petitioned?
As the plaintiffs insisted that it was, and that
the recital on the minutes was conclusive on
that point, we submit they cannot escape from
the inference that it was not the petition of
three fourths of the voters, but the false state-
ment on their minutes, that cave the commoo
council the power to issue the bonds. They
must also admit this practical consequence to
follow, that if the common council should
make the requisite recital on their minutes and
issue bonds pursuant to it, the City would be
utterly powerless to defend against any amount
of debt they might choose to incur, no matter
how few the petitioners might be, no matter
if there was no petition at all. no matter how
false in every particular the recital might hd
provided only the holder was not privy to its
falsehold. The defendant, on the other hand,
contends that this is a case of entire want of
power in the common council to issue bonds,
that the requisite petition for their issue was a
condition precedent not merelv to the exerciw,
but to the very existence ox the power, and

18ii0.

BiatBLL V. CtTT OF JsFFBBAOlTyiLLB.

287-800

that in the abeeuce of such petition, they could
not bind the City by recital or in any other
way — in short, that they had no jurisdiction
of the matter. The distinction is most ma-
terial between the acts of one who had no pow-
er at all in the premises, and the acts of one
who had an admitted power to do them, but
exercised it irregularly or abusively; the for-
mer being absolutely voidythe latter either void-
able only or absolutely valid. This distinction
will help to reconcile many decisions which
otherwise seem inconsistent.

The plaintiffs quote and rely on cases of the
latter class.

1. It is always competent to show that a court
has acted beyond its Jurisdiction.

Williamsifn v. Berry, 8 How., 495; Harrtng-
tan V. People, 6 Barb., 607; Sharp v. Johnson,
4 Hill, 92; Denning v. Cortnn, 11 Wend., 647;
Suydam v. Keys, 18 Johns., 144.

And a fortiori may be same be shown of a
special tribunal like the common council,
which has limited specific powers only; which
is no court, and proceeds ex parte,

1 Sm. Lead. Cas., 816.

2. A coroporation, when sued on a alleged
contract, is never estopped to prove in defense
her want of power to make the contract: much
less is it estopped to prove its agent had no
power to make it.

Halstead v. New York, 6 Barb., 218; 8 N. Y.,
430; Abbott v. Picket Company, 1 Md., ch. 542;
Albert Y. Bank, 1 Md.. ch. 407; 8 Gill & J.,
248; Pearee v. M, cfc i. B. B, Co., 62 U. 8. (21
How.), 442; Bridgeport y, HousaUmieB. B. Co.,
15 Conn., 493.

8. The recital by the council on its minutes
that three fourths had petitioned,is at most but
prima fade evidence of the fact. No court or
olflcers can acquire jurisdiction bv falsely al-
leging the existence of facts on which jurisdic-
tion depends.

See Harrington Y, People, 6 Barb., 610; Ifoyes
V. BuUer, 6 Barb., 616; Bex v. Sutton, 4 Maule
«& S., 532; Bunbury v. Fader, 24 £ng. L. &
£., 488.

To hold otherwise would be to make the ju-
risdiction depend, not on the facts, but on the
naked assertion of those facts.

See Welch v. Nash, 8 East, 394; People v.
(Jassels, 5 Hill. 164; Barbour v. Window, 12
Wend., 104: Doughty v. Hope, 3 Den., 600;
Prettyman v. Supervisors, 19 111., 414.

4. If such is the rule as to the records of the
courts, much less conclusive should be the
minutes of such tribunals as the common
council, whose proceedings are ex parte and
from which no appeal lies. Cases as to tax
titles show how completely findings of such
Boards are open to inquiry collaterally, as to
facts which confer jurisdiction.

See 4 Wheat., 77; 14 Pet., 822: 7 Cow., 88;
3 Dec. 595; 4 Blackf., 70; Sfiarp v. Speir, 4
Hill. 87; Oravei v Otis, 2 Hill. 466.

The plaintiffs have argued that the doctrine
of estoppel precludes our defense, and have
quoted divers cases to support their argument.
Kow, it will not be oretended that the defend-
ant can be estopped "by the unauthorized acts
of its agents. Then, with all due respect, we
submit It is begging the question to sa^ it is
estopped bv the acts of its agents, until it is
tirst proved they were author!^ to do the acts,

Bee 24 How.

When the plaintiffs have fairly established the
authority to do the acts, their case is already
made out, and they need not trouble themselves
about the estoppel.

II. Was it error for the charge the jurjr that
if three fourths of the voters had not petitioned
for the subscription to be made and the bonds
to be issued, the bonds were void in the hands
of the plaintiffs? In other words, if the bonds
would be void in the hands of the Railroad
Company, are they such negotiable paper, and
the plaintiffs such holders of them, that they
become valid in the plaintiffs' hands?

1. The bonds were transferable, but were not
negotiable in the sense in which bills of ex-
change are negotiable.

Their negotiability depends entirely upon
statute law.and itis perhaps immaterial wheUier
that of Indiana or of New York governs them.

1 Ind. R. 8., ia52, p. 878, sees. 1. 8, 6; 2 N.
T. R. S., 1828, p. 284, sec. 58, part 8.

These statutes expressly save to the maker of
such paper, defenses against it in the hands of
an assignee, which, before notice of the assign-
ment, he had against it in the hands of the
payee. No usage can grow up to take away
that right.

ZwM V. Wilson, 5 Blackf., 870; Clark v.
Farmers' Man, Co,, 15 Wend., 256.

2. If these bonds were void in their origin,
they could not be made valid by assignments.

"Negotiability can impart no' vitality to an
instrument executed under a power where the
agent has exceeded his actual or presumptive
authority. Whoever proposes to deal with a
security of any kind appearing on its face to be
given by one man for another, is bound to in-
quire whether it has been given by due au-
thority, and if he omits that inquiry, he deals
at hiw Deril "

MeA,Bank v. K T, d N, H. B, B. Co., 18
N. Y., 631 ; see, also. Stark v. Highgate Arch-
way Co,, 1 Eug. C. L., 792; Halstead v. New
York, 5 Barb., 218; Smead v. /., P. d C, B. B.
Co., 11 Ind., l(H;BootY. Ooddard, H^cL. ,^102.

A bill of lading is negotiable;

LiekbarrowY, Mason, 2 T. R., 68; 5 T. R.,
567;

And the master of a ship has authority to

give one for goods shipped on board, and thus
ind the owner. But if he gives one for goods
not on board, the owner is not responsible to
the parties taking it.

Cfrant v. Norway, 2 Eng. L. & E., 837;
Hutfbersty v. Ward, 18 Eng. L. & E., 551;
ComttY. J7tZ;, 4Den.,828.

So of warehouse receipts, &c.

Bank v. CoU, 15 Barb., 506; Coleman v.
Biches, 29 Eng. L. <& E., 823.

8. But it was proved that when these bonds
were negotiated to plaintiffs, the certificate of
the city clerk under the seal of the City was
shown to them, which stated the subscription
was on the written petition of more than three
fourtlis of the voters, also the certificate of the
mayor and clerk that the city bonds had been
exchanged for certificates of railroad stock, and
even the certificate of the secretary of the liail-
road Company that the president was author-
ized to sell the city bonds. And it is supposed
these subsequent acts should in some way estop
the City from making this defense. But the
plaintiffs have omitted to show that any of

663

287-800

BUPBBICB Ck>T7BT 09 THB UlflfBD STATIfl.

Dbc. Tkbx,

those officers had the least authority to bind
the Citjr by such certificates.

The powers and duties of mayor and clerk
are prescribed by the city charter, but making
such certificates is not among them.

4. It is argued lastly, that the City or citizens
might have had some remedy against the action
of the common council if they had sought it
promptly, but they have lost it by lying by till
other rights have been acquired in opposition
to them. But we emphatically ask, what
remedy they ever had, except to defend against
the bonds when sued. There was no appeal
from the action of the common council. There
was no one who could apply for injunction
against the issue of the bonds. The City could
not do it, for her officers, who alone could
bring the action for her, were the very persons
who committed the wrong. A citizen could
not do it. No one of them was likely to be
specially and peculiarly injured by the action,
and in such case no pnvate action can be main-
tained

12 Pet.. 91; 6 Met., 425; 7 Cush., 254; 14
Conn., 565; 17 Conn.. $73; 18 N. Y., 155.

Mr, Jitstice Clifford delivered the opinion
of the court:

This case comes before the court upon a writ
of error to the Circuit Court of the United
States for the District of Indiana. It was an
action of cusumpnt, and was instituted by the
present plaintiffs against the Corporation de-
fendants, to recover two installments of interest
which had accrued upon certain bonds, pur-
porting to have been duly issued in the name of
the defendants for stock subscribed in their
behalf by the common council of the City, to the
Fort Wayne and Southern Railroad Company.
Assuming to act in behalf of the City, the com-
mon council subscribed $200, 000 to the stock of
the Railroad Company, and on the 24th day of
April, 1855, issued two hundred bonds, of $1,000
each, in the name of the City, and subsequent-
ly delivered the same to the Railroad Company,
in payment for the stock previously subscribed.
Interest on the whole amount of the loan was
to be paid semiannually in the City of New
York, at the rate of six per cent., and coupons
or warrants for the same, payable to bearer,
were annexed to each separate bond. Plaint-
iffs became the holders, for value, and in the
usual course of their business, of thirty-seven of
these bonds; and the suit in this case was
founded on thirty-seven of the coupons for the
first installment of interest, and thirty six cou-
pons for the second installment. As amended,
the declaration contained a count for money had
and received, and a special count upon each of
the seventy -three coupons. Defendants pleaded
the general issue, and also filed a special plea,
in bar of the cause of action set forth in the
several special counts. More particular refer-
ence to the special plea is unnecessary, as it
was subsequently held bad on general demur-
rer, and at the same time the parties went to
trial on the general issue.

To maintain the issue, on their part, the
plaintiffs, in the first place, introduced one of
the original bonds, which is set forth at large in
the record. Amon^ other things, it recites, in
effect, that it was issued by authority of the
common council of the City, and that three

668

fourths of the legal voters thereof " petitioned
for the same, as required by the charter. " They
also gave in evidence, without objection, the
several coupons described in the declaratioD.
All of the coupons, as well as the bonds girea
in evidence, were signed by the mayor of the
City, and were countersigned by the city cleric,
and the defendants admitted their execution.

Presentment and protest of the coupons for
non payment were also duly proved by the
plaintins ; and to show that the bonds were duly
and legally issued, they introduced the reoon&
of the common council of the City, aad the
minutes of their proceedings upon that subject
From that reoora it appeared that on the 23d
day of August, 1858. a petition of certain legal
voters of the City was presented to the common
council, representing that the construction of the
before mentioned railroad would be of ^reat
benefit to the public generally, and especialiy
to the commertdal interests of the City, and
praying that the Board to which it was addrese-
ed would subscribe stock in the railroad to the
amount of $200,000, and contract a loan for an
equal amount, through the issue of city bonds,
for the payment of the subscription. That pe-
tition purports on its face to have been signed
by four hundred and sixty-seven persons, and
it recites that they constituted at that time thret
fourths of the legal voters of the City. On the
day of its presentation it was referred by rote
of the common council to three members of the
Board,who reported, in effect,that they found,
upon examination of the petition, and of the
poll book of the last charter election, that the
names of more than three fourths of the legitl
voters of the City were appended to the peti-
tion, and they also reported a preamble and
resolution to carry into effect the prayer of th€
petitioners. Evidently the report of the com-
mittee was entirely satisfactory, as the reoonl
shows that the resolution was immediately
abopted, without alteration or amendment, by
the unanimous vote of the Board.

Without reproducing the document, it will
be sufficient to say, that the common council
thereby resolved, m case the road came into the
City, to subscribe $200,000 to the stock of the
railroad Company, and the preamble, which was
adopted as a part of the resolution, expressly
affirmed the fact reported by the committee^
that more than three fourths of the legal voters
of the City had petitioned for that object. Pur-
suant to that determination, the parties having
met and ananged the terms and conditions of
the proposed agreement, a contract was made
with the Railroad Company, that the common
council should make the subscription thus au*
thorized, and execute and deliver the bonds of
the City to the Company for an equal auKHuii
in payment for the stocL Throughout the pe-
riod when these proceedings took place, the
parties to them, it seems, had acted upon the
supposition that the 56th section of the seoenftl
law of the State, for the incorporation or cities,
fully authorized the defendants, through their
common council, to make the subscription and
issue the bonds. Before the bonds were issued,
however, the Supreme Court of the State dt^
cided, in an analogus case, that no such autftiur-
ity was conferred upon cities by tluu section.
1 Rev. Stat., 215; The CUy of Ix^a^HU v. CW;
6 Ind., 88.

i8eo.

BxaSBLL Y. CiTT OF JSFFBBBONYILLB.

237-300

Some delay ensued in issuing the bonds, ap-
parently in consequence of that decision; but
on the 21st day of February, 1855, the Legis-
lature of the btate passed an additional Act to
enable cities which had subscribed for- stock in
companies incorporated to construct works of
public utility to ratify such subscriptions. By
the 1st section of that Act, the common coun-
cil of any city which had contracted such ob-
ligations or liabilities upon the supposition that
they were authorized so to do under the provis-
ions of the former Act might, "at any time
after the passage of this Act, ratify and affirm
such subscription; " and upon such ratification
it was expressly enacted, that " such subscrip-
tion, and the obligation and liabilities, and the
corporate bonds or obligations issued or to be
issued therefor by such city, shall be valid."
8es8. Acts 1855« p. 182. To prove such ratifi-
cation, the plaintiffs introduced the record of
the subsequent proceedings of the common
council of the City.showlng that at their meet-
ing held on the 6th day of April, 1855, it was
resolved by the Board, then in session, that the
former contract between the City and the be-
fore mentioned Railroad Company, ''for $200,-
000, be and the same is hereby confirmed and
ratified."

In tUs connection, the plaintiffs also proved
by the same record, that the common council,
on the 13lh day of April of the same year, au-
thorized and directed the mayor of the City
and the city clerk to procure and sign two
hundred bonds, of $1,000 each, in the name of
the City, and deliver the same to the Railroad
Company, reciting in the resolution upon the
subject that the proceeding was in accordance
^ith the statute of the State, and the contract
and arrangement previously made with the
Railroad Company. Prior to the]trial,the court,
by the consent of parties, appointed a commis-
sioner to take such evidence as either partv
might direct to have taken, and to report both
the evidence and his finding of the facts proved
by it, subject to all exception as to the compe-
tency of the testimony, and the correctness of
bis finding. He reported that three fourths of
the legal voters of the City had not signed the
petition to the common council, which consti-
tuted the foundation of their action in making
the subscription to the stock and issuing the
bonds. This report was accompanied by the
several depositions on which it was founded,
and the transcript shows that certain portions
of the testimony of the deponents tended to

Erove the fact reported by the commissioner,
defendants offered the report, with the several
depositions, in evidence, to prove, among other
things, that the petition in question was not
signed by three fourths of the legal voters of
the City. They also offered oral evidence
to prove the same fact. To all such testimony
the plaintiffs objected, and also moved the
court to suppress all such portions of the dep-
ositions taken bv the commissioner as tended
to prove that a less number than three fourths
of the legal voters had petitioned for the sub-
scription to the stock and for the issuing of the
bonds. But all of these objections of the plaint-
iffs were overruled by the court, and the re-
port of the commissioner, with the depositions
as taken by him, and the parol testimony, were
admitted to the jury, and the plaintiffs excepted

bee :M How.

to the several rulings in that behalf. Further
testimony was then given by the plaintiffs,
showing that the bonds in question were nego-
tiated to them for value by the agent of the
railroad company; and that the agent, at the
time they were received, exhibited to them the
certificate of the city clerk, under the seal of
the City, giving a condensed statement of the
proceedings of the common council from the
presentation of the petition to the delivery of
the bonds, and affirming, in effect, that all
those proceedings appeared of record in the
office of the city clerk; and they further
proved, that he also exhibited to them at the
same time another certificate, signed by the
mayor of the City and city clerk, wowing that
the bonds had b^n exchanged with the Rail-
road Company for an equal amount of their
capital stock, and affirming that the exchange
was authorized by the contract between the
parties and the resolutions of the common
council of the City. After the testimony was
closed, the court instructed the jury to the ef-
fect that, if thev found from the evidence that
three fourths of the legal voters of the City had
petitioned for the subscription to the stock, and
lor the issuing of the bonds, their verdict
should be for the plaintiffs; but if they found
that three fourths of the legal voters had not
so petitioned, then their verdict should be for
the defendants. Under the rulings and in-
structions of the court, the jury returned their
verdict in favor of the defendants, and the
plaintiffs excepted to the instructions.

1. On that state of the case the main ques-
tion presented for decision is, whether it
was competent for the defendants to introduce
parol testimony to prove that three, fourths of
the legal voters of the City did not petition for
the subscription to the stock and the issuine of
the bonds. That question is raised, as welTbv
the exceptions to the rulings of the court in ad-
mitting such testimony as by those taken to
the instructions given to the jury.

Some further reference, however, to the law
under which the common council acted, in
making the subscription and in issuing the
bonds, becomes necessary before we proceed to
the examination of that question. It is con-
ceded on both sides that the defendants had
adopted the general law of the State, entitled
** An Act for the Incorporation of Cities,"
before any of these prooeedings were com-
menced. Prior to the adoption of that law by
the Corporation, the charter of the City author-
ized the common council to subscribe, in the
name of the City, for any amount of stock in
railroad or turnpike companies formed, or to be
formed, for the purpose of constructing any
railroad or turnpike from the City to any other
point, provided the stock so held bv the City
did not, at any time, exceed $100,000; and
with that view, they were authorized to borrow
money or issue bonds to pay for such stock.
But it is admitt^ by the plaintiffs that the
Corporation, at the date of the proceedings in
question, was duly organized under the subse-
quent general law for the incorporation of
cities, which provides, in effect, that the ac-
ceptance of that Act by any incorporated city
shall be deemed a surrender by such city of its
prior charter. By the 56th section of the last
named Act it is also provided, that no incorpo-

669

287-900

BUFBIOCB COXTBT OF THB UnITBD StATBI.

Daa TsBx,

rated city, under this Act, shall have power to
borrow money, or incur any debt or liability,
unless three fourths of the legal voters shall pe-
tition the common council to contract such debt
or loan. All of the proceedings in question
which led to the contract for the subscription
to the stock took place under that provision of
the charter; and we have already adverted to
the fact that the Supreme Court of the State
decided, before the bonds were issued, that, by
its true construction, it did not authorize a sub
scription to the stock of a railroad company.
At the argument, the construction adopted by
the state court was controverted by the coun-
sel of the plaintiffs. But suppose it to be cor-
rect : still the limitation or restriction was one
created by the Legislature which granted the
charter, and certainly it was competent for the
same authority to repeal it altogether, or to
substitute some other in its place.

Municipal corporations are created by the
authority of the Legislature, and Chancellor
Kent says they are invested with subordinate
legislative powers, to be exercised for local
purposes connected with the public good, and
such powers are subject to the control of the
Legislature of the State. 2 Kent's Com., p. 275.

Whatever may be the true construction of
that section of the charter, it is nevertheless
certain that it was under that provision that
the petition for the subscription was presented
to the common council, and it is equally cer-
tain that it was under the same provision that
they heard and determined the question
whether the petition actually contained the sig-
natures of three fourths of the legal voters of
the City. Bad faith is not imputed to the
Board, nor is it denied that they acted " upon
the supposition " that they were authorized by
that provision, on "the written petition of
three fourths of the legal voters of the City,"
to subscribe for the stock and contract to issue
the bonds. Having ascertained and determined
that three fourths of the legal voters had peti-
tioned, they adopted t^e resolution reported by
the committee, and entered into the contract
with the Railroad Company. Clearly, therefore,
the common council had contracted the obli-
gation to take the stock; and in case of re-
fusal, would have been liable in damages for a
breach of the contract. Other cities in the
State had contracted like obligations under
similar circumstances; and to remedy the an-
ticipated difficulty, and to remove the doubt
first suggested by the decision of the Supreme
Court of the State, the Legislature passed the
explanatory Act of the 2l8t of February, 1855,
to which reference has been made.

Sufficient has already been remarked to show
that the circumstances of the case exhihited in
the record bring it within the very terms >>f the
Act; and if so, then the common council might
lawfully ratify and affirm the subscription ; and
upon such ratification it is expressly declared
that the bonds issued or to be Issued shall be
valid.

Mistakes and irregularities in the proceedings
of municipal corporations are of frequent occur-
rence, and the State Legislatures have often had
occaion to pass laws to obviate such difficulties.
Such laws, when they do not impair anv con-
tract, or injuriously affect the nghts of third
persons, are generally regarded as unobjection-

670

able, and certainly are within the competency
of the legislative authority. Unlike what is
sometimes exhibited in laws of this description,
the Legislature did not attempt to ratify the
subscription, but left the matter entirely optioo-
al with the common council, as the representa-
tives of the City, to accept or reject the prof-
fered remedy. They elected to ratify and aflSrm
the subscription; and by so doing, gave the
same effect to the contract to subscribe for
the stock, and to all the proceedings that led to
it, as if the authority to make it had been coeval
with the presentation of the petition on which
those proceedings were founded. No injustice
will result from this conclusion, as it is obvious
that the contract had been made in good faith,
under the full belief that they were duly au-
thorized to subscribe for the stock, and issue
the bonds in the name of the City, so that the
only operation of the confirmatory resolution
was to give the very effect to the proceedings
which they had intended, but which, from the
defect in their authority, had not been accom-
plished. Watson r. Mere&r, 8 Pet., Ill; WU-
kinsouY, Leland, 2 Pet., 661.

Authority on the part of the common ooondl
to. subscribe for the stock, and to issue the bonds
on the petition of three fourths of the legal
voters of the City is, therefore,shown to have ex-
isted, and must be assumed in the farther con-
sideration of the case. With this explanation
as to the authority of the common council, we
will proceed to the examination of the main
question discBfieed at the bar.

2. It is insisted by the plaintiflEs that the de-
fendants had no right to aisprove the verity of
their own records, certificates and representa-
tions, concemine the facts necessary to give va-
liditv to the bonds. On the other hand, the de-
fenaants controvert that proposition and insist
that it was competent for them, under the cir-
cumstances, to prove by parol testimony, that
the records riven in evidence did not spea^ the
truth, and that,in point of fact, three fourtl&s of
the legal voters had not petitioned, as required
by the charter. Unless three fourths of the le-
gal voters had petitioned, it is clear that the
bonds were issued without authoritv, as by the
terms of the explanatory Act it could only apply
to a case where the common council of a city
had contracted the obligation or liabilities thei>^
in specified upon the petition of three fourths
of the legal voters of such city; and if no such
petition had been presented, or if it was not
signed by the requisite number of the le^
voters, the law did not authorize the common
council to ratify and affirm the subscription.
That fact, "however, had been previously ascer
tained and determined by the Board to which the
petition was originally addressed.

After the explanatory Act was passed, the
common council were fully authoriziMl to revue
the finding of the former Board; and if it did
not appear, upon inquiry and proper investi-
gation, that it was correct, it was their duty, as
me representatives of the City, to have ref used
to ratify and affirm the contract for the sub-
scription. Such an inquiry might liave been
made through the medium of a committee, as
it had been when the petition was presented, or
in any other mode, satisfactory to the Board.
which would enable them to ascertain the true
state of the case. By the terms of the explana-

65 C.S.

leeo.

BiBSBLL V. Crrr of Jbffbbsontillb.

387-SOO

tory Act, they were authorized to ratify and
affirm the subscription, if the obligation or lia-
bility incurred had been contracted on the peti-
tion of three fourths of the legal voters of the
City; and of course, the necessary implication
is, that they must be satisfied that the requisite
number had petitioned. In making that inves-
tigation, however, it was not requir^ that there
should be a new petition, and the law is entire-
ly sUent as to the manner in which it was to be
conducted If the common council was com-
posed of the same persons who had already
passed upon the question, further investigation
was unnecessary, provided they were satisfied
with their former determination. Such of the
members as kne^r the record of the fact to be
correct might safely act upon their own personal
knowledge, without further inquiry; and if
there were any who had not been members of
the Board when the prior determination was
made, they might ascertain the fact in any mode
which was satisfactory to themselves and their
associates. Nothing appears in the record to
show whether further information upon the
subject was necessary or desirable, or, if so,
what means were adopted to obtain it; but it
does appear that the Board unanimously re-
solved to ratify and confirm the contract with
the Railroad Company,and subsequently issued
the bonds, reciting in each that it was issued
by authority of the common council of the City,
" three fourths of the legal voters of the City
having peutioned for the same as required by
the charter." Taken together, we think the
record of the resolution ratifying and confirm-
ing the contract, and the recital in the bonds,
furnish conclusive evidence in this case that the
common council did readludicate the question,
whether the requisite number of the legal
voters of the Cit^ had signed the petition. Fraud
is not Imputed m this case, and it does not ap
pear that it was even suggested at the trial m
the court below that the Board neglected that
duty at the time the contract was confirmed;
but the defense was, that the finding was erro-
neous, because the petition, as matter of fact,
did not contain three fourths of the legal voters
of the City.

3. It only remains to consider the effect of
that determination as between the defendants
and the holders for value of the bonds, without
notice of the supposed defect in the proceedings
under which they were issued, and put into the
market. Two hundred bonds, with twelve hun
dred interest warrants, or coupons, were issued
in the name of the City, and the coupons, as
well as the bonds, were payable to bearer. In-
terest was payable semi-annually, but the re-
demption of the principal was postponed for a
period exceeding twenty-five years. Capital-
ists could not be expected to accept such paper,
and advance money for it, unless the authority
to issue it was put beyond dispute. They cer-
tainly would not pay value for such securities,
with knowledge that the question under consid-
eration would be open to litigation whenever
payment, either of principal or interest, was de-
manded. Purchasers of such paper look at the
form of the paper, the law which authorized it
to be issued, and the recorded proceedings on
which it is based. When the law was passed au-
thorizing the common council to ratify and af
Drm the contract with the Railroad Company, it

See 24 How.

must have been understood bjr the Legislature
that the bonds were to be received by the Com-
pany in payment for the stock, and used as a
means for iJorrowing monev for the construction
of the road, and it could hardly have been ex-
pected that the object could be accomplished, if,
by the true construction of the Act, it contempla-
ted that the bonds should be issued before it was
conclusively determined that the reouisite num-
ber of the legal voters of the City haa petitioned
the common council. But a much stronger rea-
son why that construction cannot be adopted is,
that it would involve an absurdity, as it would
render the law altogether inoperative, or else it
would admit that Uie bonds might be issued
without authority.

Whether three fourths of the legal voters had
petitioned or not, was a question of fact; and if
not ascertained and conclusivelv settled before
the bonds were issued, it would remain open to
future inquirv, and might be determined in the
negative ; and clearly the common council could
not lawfully ratify and affirm the subscription,
unless that proportion of the legal voters had pe-
titioned ; and without such ratification, the bonds
would be invalid. Beyond question, therefore,
that construction must be rejected.

Jurisdiction of the subject-matter on the part
of the common council was made to depend
upon the petition, as described in the explana-
tory Act, and of necessity there must be some
tribunal to determine whether the petitioners,
whose names were appended, constituted three
fourths of the legal voters of the City, else the
Board could not act at all. None other than the
common council, to whom the petition was re-
quired to be addressed, is suggested, either in
me charter or the explanatory Act, and it would
be difficult to point out any other sustaining a
similar relation to the City so fit to be charged
with the inquiry, or one so fully possessed of
the necessary means of information to discharge
the duty. Adopting the language of this court
in the case of Ths ^yrnrs. of Knox Co. v. Amn-
wall, dl How., 544, we are of the opinion that
*'thiB Board was one, from its organization
and general duties, fit and competent to be the
depositary of the trust confided to it." Perfect
acquiescence in the decision and action of the
Bc^rd seems to have been manifested by the de-
fendants until the demand was made for the
payment of interest on the loan. So far as ap-
pears, thev never attempted to enjoin the pro-
ceedings, out suffered the authority to be exe-
cuted, the bonds to be issued, ancl to be deliv-
ered to the Railroad Company, without interfer-
ence or complaint.

When the contract had been ratified and af-
firmed, and the bonds issued and delivered to
the Railroad Company in exchange for the stock,
it was then too late to call in question the fact
determined by the common council, and a for-
tiori it is too fate to raise that question in a case
like the present, where it is shown that the plaint-
iffs are innocent holders for value.

Duly certified copies of the record of the pro-
ceedings were exhibited to the plaintiffs at the
time they received the bonds, showing to a
demonstration that further examination upon
the subject would have been useless; for. wheth^
er we look to the bonds or the recorded pro-
ceedings, there is nothing to indicate any ir-
regularity, or even to create a suspicion that the

# 671

242-247

SUFBBXB COUBT OF THB UmITBD BtATSS.

Dbc. Tsbm,

bonds had not been issued pursuant to a lawful
authority; and we hold that the Company and
their assigns, under the circumstances of this
case, had a right to assume that they imported
verity.

Citation of authorities to this point is unnec-
essary, as the whole subject has recently been
examined by this court, and the rule clearly laid
down that a corporation, quite as much as an
individual, is held to a careful adherence to truth
in their dealings with other parties, and cannot,
by their representations or silence, involve others
in onerous engagements, and then defeat the
calculations and claims their own conduct has
superinduced. ZaJbrukieY. Clei>eland, dbc,, Bail-
road Co., 28 How., 400.

For these reasons, we are of the opinion that
the parol testimony was improperly admitted,
and that the instructions given to the jury were
erroneous.

The judgment of the circuit court is, therefore,
reversed, with costs,and the cause remanded/wiih
dtrecUojis to issue a new venire.

Cited-67 U. S. (2 BlaokK 786 ; 70 U. 8. (8 Wall.) J67 ;
71 U. 8. (4 Wall.), 2n ; 72 U. 8. (5 Wall.), 788 : 74 IT. 8.
(7 Wall.), 413: 77 tJ. 8. (10 Wall.), 645; 80 U. 8. (18
WaU.), 306 : 81 U. 8. (14 Wall.), 296 ; 8d U. 8^19 WaU.),
484 : 88 U. 8. (16 Wail.), 663 ; 87 U. 8. (20 Wall.), 068 ;
02 U. 8., 492, 500; 99 U. 8., 96; 1 Dill., 342; 5 Bank.
Reflr.,241; 3 Cliff., 345; 2 Saw., 549, 13 Blatchf., 247,
89 N. Y., 687; 23 Me., 628; 12 Kan., 200, 219; 8 Am.;
Rep., 03 (48 Mo., 167) ; 20 Am. Rep., 138 (73 N. T., 238),
85 Am. Rep., 102 (17 Fla., 607).

WILLIAM 8. McEWEN and HENRY H.
WILEY, Par*. miSr.,

JOHN DEN, Lessee of Charles Bulklby
and Stuart Brown.

(8ee 8. C, 24 How., 242-247.)

Tennessee law as to deeds — acknowledgment in
another State — where deed not duip achnaw-
ledged, copy of record is not evidence — custom
cannot change description.

By the laws of Tennessee, the fee in land does not
pass unless the conveyance is proved, or duly ao-
knowled^d and registered.

In 1830, a deed for land lying in Tennessee could
not be acknowledged or proven in another 8tate be-
fore the clerk of a court.

The Tenessee 8tatute of 1&56, which it Is claimed
validated this probate, is prospective.

The Act of 1856 was an amendment of the Act
of 1889, and does not carry with it the provisions
of the former law.

Where the deed offered in evidence was recorded
without legal proof of its execution, a copy of the
record cannot be evidence.

The lines of a grant must be governed by a legal
rule, which a local custom cannot change.

Argued Jan. SS, 1861. Decided Feb. IS, 1861,

IN ERROR to the Circuit Court of the United
States for the Eastern District of Ten-
nessee.

This was an action of ejectment, commeaced
by the present defendant in error in the court
below.

On the trial, the jury rendered a verdict for
the plaintiff below, and the case was brought
to this court by writ of error.

The case appears in the opinion of the court.

672 #

Messrs. Joseph B. Helskell and Horace
Mayiuurd, for the plaintiffs in error.

Messrs. John Baxter and Thomae A. R.
Nelson* for the defendants in error.

Mr. Justice Catron delivered the opinion of
the court:

Bulkley sued McEwen and Wiley, in an ac-
tion of ejectment, for 5.000 acres of land. At
the trial, the plaintiff introduced a patent is-
sued to Thomas B. Eastland, dated December
21st,18d8, No. 22,261. The plaintiff next offered
to read the copy of a deed from Eastland to
Bulkley for the tract granted (with other lands);
to the reading of which objection was made,
but court admitted the cop^ to be read ; to the
admission of which the defendants excepted.

By the laws of Tennessee, the fee in land
does not pass unless the conveyance is proved,
or duly acknowledged and r^;istaned. This
deed purports to have been acknowledged by
the grantor. Eastland, before the Clerk of th^
Court of Common Pleas for the Citv and Coun-
ty of New York, and is certified under his
seal of office. And this was accompanied by
a certificate of the Judge of said court, that
Joseph Hoxie, before whom the deed was ac-
knowledged, was clerk, and that the court of
whidi he was clerk was a court of record. On
this evidence of its execution, the 6a^ was
register^ in the county where the land lies ;
but at what time it was registered does not ap-
pear. The acknowledgment was taken Octo-
ber 25th, 1839. At that time a deed for lands
lying in Tennessee could not be acknowledged
or proven in another State before the derk of a
court.

In 1856, an Act was passed (ch. 115), which
it is insisted validates this probate. It pro-
vides, that deeds proved or acknowledged be-
fore the clerk of any court of record in any of
the States of this Union, and certified by the
clerk under his seal of office, and the chief ma-
^trate of the coiu't shall certify to the official
character of the clerk, the prorate or acknowl-
edgement shall be valid. And the 2d section,
declares, that all deeds proved or acknowl-
edged and certified in manner aforesaid, may
be registered in this State, and shall be good to
pass title, &G.

It is insisted, that the Act is retrospective as
well as prospective in its operation, and covers
the acknowledgment made in 1889, in New
York.

We think the Statute of 1856 is prospective,
and that to hold otherwise would be a atmined
construction, and violate a general rule of juris-
prudence, to wit: that it is of the very essence
of a new law that it shall apply to future cases,
and such must be its construction, unless the
contrary clearlv appears.

It is next insisted that the Act of 1856, being
an amendment of the Act of 1889, carries with
it the provisions of this law. The Act of 1856
declares that the Act of 1889 " be so amended"
that all deeds, powers of attorney, 4ec., proved
or acknowledged before a foreign clerk, mav
be registered, and have full effect. An addi-
tional mode of probate is provided ; nor does
the Act go any further.

The deed offered in evidence was recorded
without legal proof of its execution; and, there-
fore, a copy of the record could not be evi-

6« L\ S.

I960.

McEwBN y. DfiN.

242-247

dence. The court erred in admittiog the copy
to TO to the jury.

The plaintiff Delow described the land sued
for in his declaration, which is required to be
done by the laws of Tennessee. The declara-
tion calls for the boundaries of grant No.
22,261, made to Thotnas B. Eastland, Decem-
ber 21st, 1888. The defendants then gave in
evidence two otherjmnts, for 5,000 acres each;
one to Thomas B. Eastland, No. 22.267, being
one of the tracts contained in the deed from
Eastland to Bulkley; and another to Henry H.
Wiley, one of the defendants, No. 26,086. The
two junior patents covered the principal pos-
session of the defendants, at a place known as
Evans' coal bank. This fact was admitted ;
and it furthermore appeared, that the defend-
anta had held seven years' adverse possession at
the coal bank, Under Wiley's grant. And it
was insisted below, and is again here, that as
Bulkley had shown himself to be the owner of
both the tracts ^nted, and as the operation of
the Act of Limitations drew to Wiley's younger
patent the title of Eastland's junior grant, and
vested this title in the defendants, they were
protected by the statute, because Bulkley had
the right to sue at all times during the seven
jears, by virtue of grant No. 22,267. But
the court instructed the jury to the reverse of
this assumption, and, we think, correctly.
From the facts stated, it Is true that the right
of action founded on the younger grant to East
land was barred, to the extent that Wiley's
tyrant interfered with No. 22,267; and assuming
it to be true, that the defendants could avafi
themselves in defense, or affirmatively, of this
title, still it could avail them nothing, as both
No. 22,267 and No. 26,086 were inferior to
grant No. 22.261.

The main question in the cause turns on the
fact, whetiber the possession at Evans' coal
bank was within the boundary of the grant No.
22.261, described in the declaration, and alone
relied on at the trial by the plaintiff. It calls
to begin on the south bank of Coal Creek,
four poles below Bowline's mill; thence run-
ning south with the foot of Walden's ridge, 894
poles, to a stake at letter H, in Henderson <&
Co.'s Clinch River survey; then west, crossine
Walden's ridge, 804 poles to a stake ; then north
north 804 poles to a stake, then a direct line to
the beginmng.

It was proved at the trial, and is admitted
here, that no line was originally run and
marked but the first one; and Uiat at H there is
a marked poplar comer tree, which is a line
mark of the grant. It being admitted that the
first line is established, and that it is regarded
as a north and south line, and that the other
lines of the tract were not run or marked, it
follows they must be ascertained by course and
measurement. How they are to run is a matter
of law ; and on this assumption, the circuit
court instructed the jury as follows: " To iden-
tify the land appropriated, the jury must look
to the calls, locative and directory, the foot of
the mountain, the creek, the coal bank, the
marked trees, courses and distance, number of
acres demanded and paid for, &c. ; and they
will look to the survey, full or partial; that as-
suming the correct mode of survey to have
been by horizontal measurement, and that the
surveyor based his identification of the land en-
Bee 24 How. U. 8. , Book 16.

tered on surface measure, in accordance with
his custom and the custom of the mountain
range of country in which he resided, this
would not, of itself, defeat the location of the
land, and the boundaries of the mnt as indi-
cated by the survey, calls, and otner evidence,
to all of whfch they would look in adjusting
the boundaries of the plaintiff's grant." To
this charge exception was taken. We think
the instructions fnven were too vague and gen-
eral to afford the juiy any materialaid in ascer-
taining the true boundaries of the land granted.
The first line calls for two corners admitted to
exist; this line must govern the three others. 1
Meig's Digest, 164. It falls short of the dis-
tance called for, being only about 800 poles
long. Its course being found, the next line
running west must be run at right angles to the
first one. In ascertaining the southwest corner
of the tract at 8))4 poles m>m the poplar comer,
the mode of measuring will be to level the
chain, as is usual with chain carriers when
measuring up and down mountain sides, or over
other steep acclivities or depressions, so as to
approximate, to a reasonable extent, horizontal
measurement, this beine the general practice
of surveying wild lands in 'Tennessee. The
reasonable certainty of distance, and approxi-
mation to a horizontal line, is matter of fact
for the lury to determine.

The third line running north, from the ascer-
tained western termination pf the second, must
run parallel with the first line, and be contin-
ued to the distance of 894 poles, the chain beinsp
levelled as above stated. The fourth line wiU
be run from the northern terminus of the third
line to the beginning near Bowling's mill.

The surveyor who made the survey on which
grant No. 22,261 is founded, deposed at the
trial, *' that no actual survey was made in
1838 of said land, except the first line from
A to H. That the other three lines of the grant
were not run, but merely platted. That the
proper mode of making surveys was by hori-
zontal measurement, but that he had not been
in the habit of making them in that way; that
in making the line from A to H., in this survey
he had measured the surface; that the custom of
the country was to adopt surface measure; and
that he had made the survey in accordance with
such custom."

Jhe grantee was bound to abide by the
marked line from A to H ; but the other lines
must be governed by a legal rule, which a
local custom cannot change. Should this cus-
tom be recognized as law. governing surveys,
it must prevail in private surveys, in cases of
sales of land, when the purchaser who bought
a certain number of acres might, by surlllce
measure across a mountain, lose a large portion
of the land he had paid for. And such would
be the case of this grantee, were he restricted to
surface measure ; whereas, by the terms of his
patent, the government granted to the extent
of lines approximating to horizontal measure-
ment. How far the Act of Limitations will
affect the plaintiff's title, will depend on the
fact whether Evans's coal bank falls within the
boundary of the patent sued on, as it is not
claimed that the ot£er possession at a different
place on grant No. 22,261, and for which tres-
pass the recovery was had, was seven years old
when the suit was brought.

48 673

1-41

BUFBBXB COUBT OV TBB UHTTBD StaTBS.

Dbc. Tnuf.

It is ordered thai the judgment below he re-
^versed, and the cause remanded for another trial
to be had therein.

Cited— 10 Bank. Re^., 494; 14 Bk. Rear., 114; 1 Fllp-
pln, 504; 86 N. Y., 806.

FRANKLIN MOORE. GEORGE FOOT and
GEORGE F. BAGLEY. Plffe. in Eh-,,

THE AMERICAN TRANSPORTATION

COMPANY.

(See S. C. 24 How., 1-41.)

CoMtruetion of Act of Conffreu of March 3,
1851 — applies only to commerce between the
States, and foreign commerce — commerce on
the great lakes, between States, is on sama foot-
ing as commerce on the ocean — commerce on
IcJces wholly within a State, not within the regu-
lation of Congress,

In the words ** any veesel of any deacription
whatsoever, used in rivers or inland navlflratlon,*'
in the Act of March 8, 1861, the word ^' used "
means '* employed," and was intended to refer to
veesels solely emplored in rivers or inland naviga-
tion.

But the business upon the great lakes lying upon
our northern frontiers, carried on between the
States, and with the foreign nation with which
they are connected, deserves to be placed on the
footinir of oommeroe on the ocean ; and Congress
oould not have classed it with the business upon
rivers, or inland navigation.

If Congress intended to have excluded these lakes
from the limitation of the liabilities of owners, it
would have referred to them by a more specific
designation.

The policy and Justice of the limitation of the
liability of the owners, under this Act of 1861, areas
applicable to the navigation of these lakes as to that
of the ocean.

Commerce upon lakes lying within the State, such
as the Cayuga, Seneca, and all others similarly situ-
ated, is not within the regulation of Congress.

The Act applies to vessels only which are engaged
in foreign commerce, and commerce between the
States. The purely internal commerce and naviga-
tion of a State is exclusively under state regulation.

Argued Jan. g8, 1861. Decided Feb. 18, 1861.

IN ERROR to the Supreme Court of the
State of Michigan.

This was an action oi assumpsit, originally
commenced by the present plaintiffs in error in
the Circuit dourt for Wayne County, in the
State of Michigan, againat the defendants, a
Corporation created by the State of New Yort^.
At the first trial, in accordance with the direc
tion of the court, the jury returned a verdict
for the plaintiffs. The judgment entered on
that verdict was reversed By the Supreme
Court of Michigan and a new trial ordered.

See American TransporUitum Oo. ▼. Moort,
5 Mich., 868.

The case was again tried, and the juiy, un-
der the direction of the court, rendered a rer-
diet in favor of the Transportation Company,
in accordance with the decision above referred
to. The judgment entered upon this Terdict
was affirmed by the Supreme Court of Michi
gan, and the case was brought to this court by
writ of error.

Several questions not passed upon by the
court were discussed by counsel. The main
question in the case arose under the 7th sec-
tion of the Act of March 8d, 1851 (0 Stat, at
L., 686). The substance of this Act, the facts
of the case, and the questions involTed, are
stated by the court.

Messrs. C I. Walker and Alfred Rus-
sell, for the plaintiffs in error:

The question in this case is, what oonalruc
tion is to be given to the phrase. " inland nsvi
gation?'* Shall it be held to embrace naTiira-
tion upon Lake Erie and our great lakes T T&at
this is the obvious natural and popular mean-
ing of the phrase, we think there can be no
doubt. This is admitted by Judge Conkling,
who suggests, however, different construct ion».

ConkT. Adm., 109.

It is now clearly settled, that in the construc-
tion of statutes the courts will give to the Ian
guage used, its ordinary and obvious meaning,
unless from the statute itself it is clearly ap-
parent that some other meaning was intendi-d.

Sedg. Stat. L.. 248. 260, 310. 882; TimUU v.
Combe, 7 Adol. &E.. 788.

Lakes are from their very nature, inland.and
must be so. and the navigation upon tbem
must, therefore, be inland navigation.

NoTB.— Ltofetttty of carrier by water, for low or
damage of goods.

The Qommon law charges the oommon carrier,
whether by land or water, against all events but acts
of Ood and of the King's enemie8,80 that a common
carrier is an Insurer against all perils or losses not
within the exception. This rule is part of the oom-
mon law of this country, and it is not a defense to
the claim of an owner that carrier has done the
best he could, or that the accident causing the loss
was unavoidable. He must bring himself clearly
within one of the two exceptions. Coggs v. Ber-
nard, 2Kaym., 909; Trent Nav. Co. v. Wood, 3 Esp.,
127 ; Riley v. Home, 5 Bing., 217 ; The Maria, 4 Rob.
Adm., 848 ; The Commander in Chief, 68 U. 8. (1
Wall.), 48; Letchford v. The Golden Ragle, 7 La.
Ann., 9 : Priend v. Woods, 6 Gratt., 189 ; Orange Co.
B'k V. Brown, 9 Wend., 86: Thurman v. Wells, 18
Barb.. 000; Mershon v. Hobensack, 2 Zab., 872;
Thomas v. Boston, &c., R. R. Co., 10 Met, 476:
Crosby v. Fitch. 12 Conn., 419; I^ewis v. Ludwick, 6
Cold., 868; Fish v. Chapman, 2 Kelly, 849; New
Brunswick Co. v. Tiers, 24 N. J.. 097 : Swindler v.
HlUiard, 2 Rich., 286 ; ^IT v. O. C. St C. Ry. Co., 117
Mass., 501: 19 Am. Rep,, 429; Eagle v. White, 6
Whart^, 517 ; Smyrl v. Niolon, 2 Bailey, 421 ; Han-
nibal R. R. Co. V. Swift, 79 IT. S. (12 Wall.), 282 : R. R.
Co. V. Reeves, 77 D. 8. 00 Wall.), 176; Powell v.
Mills, 80 Miss., 281 ; Edwards v. White L. T. Co., 104
Mass., 169 ; 6 Am. Rep., 218 : Morrison v. Davis, 20
Pa. St., 171 ; Central R. & B. Co. v. Hines, 19 Ga.,

674

208 ; Daggett v. Shaw, 8 Mo., 964 ; Bohannan v. Ham-
mond, 42 Cal., 227 ; Howe v. Osw^o. icc^ R. R.Ot,
66 Barb., 121 : Turner v. Wilson. 7 x erg.. 340 ; Bmery
V. Hersey, 4 Me., 411; Boyle v. McLaughlin, 4 Harr.
& J., 291 ; Dunseth v. Wade, 2 Scam., &.

The expression ** act of God ** denotes oatural ac-
cidents, such as lightning, earthquake and tempeitt,
and not accidents resulting from the negligenoe itf
man. ** There is a nicety of distinction between
the act of God and inevitable necessity.'* Ttvot
Nav. Co. v. Wood, 2 Raym., 900 ; Forward v. Pit-
tard, 1 Terni,27; Story, Bailments, seoa. 511« S5;
Williams v. Grant, 1 Conn., 487.

Carriers by water are liable In all the strfctii««
and extent of the common law rule, unless the kM»
happens by one of the excepted perils. Story.
Bailments, sees. 497, 610, and notes ; Spencer v. Dag-
gett. 2 Vt., 82 ; ElUdtt v. Russell, 10 Johns., 1 ; Kemp
V. Coughtry, 11 Johns., 107 ; MoArthur v. 8«u«« 21
Wend., 193.

This oommon law liability Is usually limited by
the contract contained in the bill of lading. **PeTii9
of the sea," ** dangers of the seas,*' or **dangen of
the rivers or of the lakes, or of water, or of navigii-
tion," which are held the same In effects are usuall)
excepted. Story, Bailments, sec 5IS, et aeq. ; Hast-
ings v. Pepper, 11 Pick., 41 ; Bell v. Reed, 4 Bi&n^
127 ; Holliogsworth v. Brodrick, 7 A. & B., 50; Joocc
v. Pitcher, 8 Stew. Ap P., 186 : Gordon v. Buchanan.
6 Yerg., 71; Fairchild v. Slocum, 19 Wend^ S2»: 7
HiU, S»2; Baxter v. LeUrnd, 1 Abb. Adm.. M8.

M U.S.

1860.

MooRB y. Ambkican Transfortatiok Co.

1-41

5 Am. Encyc, art. "Lake"; 4 Nat. Cyc,
art. "Canada'^; 5 Ed. Encyc. art. "Canada";
7 Nat. Cyc, art. "Lake"; Mauder's Scientific
Treas.. art. "Lake"; Webster's Diet., arts.
"Lake "and "Sea."

Thus, the Caspian, though sometimes called
a sea is strictly a lake, being a large collection
of water in an inland space.

16 Ed. Encyc. " Physical Qeog.." p. 608; 5
Am. Cyc, art. "Lake;" 7 Nat. Encvc, art.
"Lake," Webster's Diet., art. " Sea." '

The word " inland," as applied to navi^tion
or bodies of water, is used as the correlative of
ocean or tide-water.

Webster's Diet., "Inland."

We refer to a few only of the many instances
in which the terms "inland seas, "inland
waters," and " inland nayi^tion," haye been
used by Jurists and other wnters in relation to,
or so as necessarily to include, the great lakes.

" Inland Seas, ""Woodbury, J., 6 How., 495;
Interior "Lakes." Webster, Arguendo, 6 How.,
378; "Inland Seas," Taney, Ch. J., 12 How.,
453; "Interior Waters," Daniel, J., 20 How.,
314; "Inland Waters," Catron,/., 20 How.,
401; "Inland Waters," Clifford, J.,2l How.,22;
" Inland Navigation." Shaw. Ch. /., 11 Pick.,
42; " Inland Navieation," 1 Newberry, Pref. 8;
''Inland Seas," Arguendo, 1 Newberry, 645;
•' Inland Seas." Pratt. J., 8 Mich., 275; "In-
land Navigation," 1 Conk. Adm., 5. 8, 17; " In-
land Waters," 1 Conk. Adm.. Pref. 8; "Inland
Seas." Ed. Cyc. art. "Phys. Geog.," 608;
••Inland Seas,''^l Murray's Hist, of Canada. 22;
"Inland Navigation.' Summerville's Phys.
Geog., 266; " filand Seas," 8 Murray's Encvc.
of Gteog.. 850; "Inland Seas," Webster in Ills
Buffalo speech, 1888, and in his first speech in
reply to Hayne; " Interior Trade," 8 Bancroft's
Hist, of U. S., p. 111.

Indeed, it may well be said that the great
laktB are but expansions of the rivers connect-
ing them, and this is the position taken by em-
inent geographers, some of whom gfve the
length of the St. Lawrence as commencing at
the head of Lake Superior.

4 Nat. Cyc, art. "Canada"; 5 Ed. Encyc,
art. "Canada"; 9 Am. Encyc, art. "Lake."

The term, "inland navigation" therefore,
obviously and naturally includes lake naviga-
tion. It is too clearly apparent that Uie great
lakes were to be included within the exception
from the fact that all rivers — ^as well those
connecting the great lakes as others — are ex-
pressly within it. and there could be no reason
why the navigation upon the St. Clair, the De-
troit and the St. Lawrence should be governed
by a different rule from tliat of the connecting
lakes; the commerce is intimately, nay, indis-
solubly connected together, earned on by the
same vessels in the same voyages, subject to
similar perils and similar competition.

Nor can it be said that these rivers are but
straits connecting lakes and, therefore, not em-
braced under the title " rivers."

Straits only connect ocean waters.

Maunder's Scientific Treas.. art. "Straits";
Webster's Diet., art. " Straits"; 17 Am. Encyc,
art. "Straits"; Rees's Encyc, art. "Straits."

While these connecting waters are strictly
rivers, answering in eveir respect the descrip-
tion of rivers as given by lexicographers and
geographers: " A river is a Urge stream of
water flowing in a channel on land toward the
ocean, a lake, or another river."

Webster's Diet. , • * River ;" Maunder's Scientif -
ic Treas., " River"; 16 Amer. Encyc. " River";
15 Ed. Encyc. "Phys. Geog., ''^ 599; 4 Nat.
^c. "Canada"; The Constitution v. The
Young America, 1 Newb. Ad., 106.

Nor will it do to say that navigation upon
Lake Erie is not inland navigation because it is
a great lake. The size cannot alter the ques-
tion whether it is an inland body of water or
not. No such distinction is anywhere recog-
nized, and if any such distinction be attempt-
ed, where is the dividing line between a lake
that is inland and one that Is not? To which
class does Lake Champlain. Lake St. Clair or
the Lake of The Woods beloi)g? Inland in
this connection means remote from the sea.

Neither does the immense importance of its
commerce furnish any reason why lake naviga-
tion is not included in the term " inland navi-
gation." The very same commerce traverses
the St. Clair, the Detroit and the St. Lawrence,

*' Perils of the sea " includes such losses only to
goods on board, as are of an extraordinary nature,
or arise from some irresistible foroe, or from
some overwhelming power, which cannot be flruard>
ed against by the ordinary exertions of skill and
prudence. 3 Kent's COm., 209; Story, Bailments,
eec. 512 a.' The Reeside, 2 Sumn., 687; Potter v.
Suffolk Ins. Co.. 2 Sumn., 197 : Waters v. Louisville
M. Ins. Co.,86 U. S. (11 Pet.). 218 ; Crosby v. Fitch, 12
Conn_^ 410, 41^-422 ; Fairchild v. Slocum, 19 Wend.,
329 : Hazard v. N. B. Mar. Ins. Co.. 1 Sumn., 218 ; 88
U, H. (8 Pet.), 667; Colt v. Mechen. 6 Johns.. 100.

The distinction between ** perils of the sea " and
•* act of God." McArthur v. Sears, 21 Wend., 190,
igB ; Dibble v. Moronin, 1 Woods, 407.

A loss ocoaslonea bypirates falls within ** perils
of the sea." 8 Kent's Com., 216 ; Ga«re v. Tirrell, 9
Allen. 209, 810 ; Pickering v. Barclay, 2 Roll. Abr.,
24.8: Style, 132; Barton v. WoUiford, Comb.. 56.

Where the loss arises from collision ; if his own
vessel, or if both vessels are at fault, the carrier is
liable; If the other vessel is wholly, or if either
vessel is at all, at fault. It is a '*peril of the sea." and
carrier is liable unless exempted by contract. Con-
verse V. Bralnard, 27 Conn., 607; Orlll v. Qen. I. 8.
Co., L. R., 1 C. P.. 600 ; Jones v. Pitcher, 8 Stew, k
P., 185; Whitesides v. Tburkill, 12 Sm. ft M., 509:
The New Jersey, Olcott, 444 : Hays v. Kennedy, 41
pa. St., 878; Marsh v. Blvthe, 1 MoCord, 880: BuUer
V. Fisher, 8 Esp., 67 ; Plaisted v. Boston St. Kav. Co.,
^ Me., 182.

Bee 24 How.

If ffoods are g-nawed by rats or cockroaches, car-
rier is liable; or if rats ffnaw hole in vessel causing:
it to leak. Aymar v. Astor, 6 Cow., 266: Kay v
Wheeler, L. K., 2 C. P., 802 ; Laveroni v. Drury, 8
Bjcch., 166; 16 Enff. L. & B., 510; Westray v. Miletus,
2 Int. Rev. Rec. dl ; Dale v. Hall, 1 Wlis., 281 ; Oar-
riegues v. Coxe, 1 Binn., 502 ; Hunter v. Potts. 4
Gamp., 208.

He must f u mish a seaworthy vessel.well equipped
and suitable for the purpose for which It is em-
ployed, and he is responsible for damages arisinjr
from failure to do so. Bell v. Reed. 4 Binn., 127 ;
Clark v. Richards, 1 Conn., 54 ; Day v. Ridley, 16 V t.,
48; Kellogg v. Packet Co., 8 Biss., 496; The North-
em Belle, 76 U. S. (9 Wall.), 626.

The carrier is not liable if damage to goods arises
without his fault, from the nature of the articles
themselves, as decay of fruit or working of liquors
that have a tendency to ferment or leak. Brown v.
Clayton, 12 Ga., 564 ; Clark v. BamweU, 58 U. S. (12
How.), 282; The Howard v. Wiseman, SO U. S. (18
How.), 231; Lawrence v. Denbroens, 66 U. 8. (1
Black.). 170 ; McKlnlay v. Morrish, 62 U. S. (21 How.).
848. '

A carrier who receives a cask of wine in good
order to transport, and the cask reaches its desti-
nation empty, is liable for the loss, unless he shows
exemption under his bill of lading. Arend t. Liv.,
&c.. St. Co., 6 Lans., 457; S. C, 64 Barb., 118 ; alf'd, 68
N. Y., 606.

075

1-41

8UPJIBMJS Court of thb Unitad Btatju.

Dbg. Tbsm.

while the magnitude of lake commerce is
rivaled by that of the Missiasippi and the Hud-
son, and their commerce is expressly within
the exception.

Nor does the fact that the commerce of the
lakes is within admiralty jurisdiction furnish
any reason why it should not be included with-
in the term '* inland navigation.'' The com-
merce of all the great rivers of the continent is
equally within this jurisdiction, and it is ex-
pressly within the exception, and it is inland as
well as rioeT navigation.

The Oenesee Ghtefy. FUzhugK 12 How., 448;
Fretz y.BuU, 12 How., 466; Jaeknan v. Ths
Magnolia, 61 U. S. (20 How.), 296; 2%« F. W.
Backus, 1 Newb., 1; The Jenny lAnd, 1 Newb.,
447.

The lakes and rivers, and the commerce and
navigation of the lakes and rivers of the west
are usually mentioned together, and it is hardly
conceivable that different rules should be ap-
plied to each.

Woodbury, /., WaHng v. Cla/rk, 5 How.. 495;
Taney, Ch. J., Oen&iee Chief case, 12 How.,
451; Grier, J., Magnolia case, 61 U. 8. (20
How.), 802; also opinions of McLean, J., 808,
Daniels. J., 815; and Campbell, «/.. 888.

The fact that Lake Erie is a border lake, and
that through it runs the national boundary line,
furnishes no reason why its navigation is not
inland. The term *' inland " can have no such
meaning as "interior," within the country with-
in the national boundarv line. This rule will
bring within the exception lakes Michigan and
Champlain, and exclude from it lakes no larger,
Erie and St. Clair. Rivers, too, form boundary
lines, and upon any such construction are they
within or witliout the exception?

We submit, then, that the locality of the
water, whether within or without our territorial
limits, does not determine the character of the
navigation, whether inland or not; that it can-
not be tliat Lake Champlain is '' inland," and
Sorel River " outland," Lake Michigan inland
and Lake St. Clair not, the Mississippi inland
and Pigeon River not.

It has been suggested that these great lakes
are no more " inland " than the close and nar-
row seas, like the Baltic and the Mediterranean,
and that the navigation of those seas is never
termed ** inland navigation."

Biit the analogy ooes not hold. The very
term "inland" implies remote from the sea
or tide- water, and while the lakes are ^at like
close seas, they are still remote from tide- water
and. therefore, inland; while the seas are a part
of the great ocean, on its level or nearly so,
swept by its tides, governed by its laws, and
like the ocean itself, not subject to doniinion
but a pathway for all nations.

Wheaton's international Law, 150, 158; Vat-
tel's Law of Nations, 187, 194; Campbell, /.,
Jackson v. Magnolia, 61 U. S. (20 How.),

340.

It has also been suggested that the reason
why river and inland naviration was excepted
from the operation of the Act of 1851 was, that
there was serious doubt as to the jurisdiction of
Congress over such navigation, while in rela-
tion to the navigation upon the great lanes, no
such doubt existed.

But it is well settled that Congress has the
same jurisdiction over navigation upon rivers

07tt

that it has over that upon the lakes, and that
it has no jurisdiction over either, except as it
extends between States or with foreign nati<»s.

FreU V. BuU, 12 How., 466; Jackmm v. Mag-
noUa, 61 U. S. (20 How.). 296; Aden t, Nem-
b&rrjf, 62 U. 8. (21 How.), 244; Moi^ttirty. Card.
62 U. S. (21 How.), 248.

There are few authorities bearing directly
upon the quejstion involved.

See 1 Conk. Adm., 209; 1 Pars. Ship., 401.

The Supreme Court of the Western District of
New York at the February Term, 1858, in the
case of Root v. Hart, decided that lake navigi-
tion was included within the exception by the
phrase "inland navigation. "

The Supreme Court of the City of Baffab
made the same decision, after fuUy conaideiing
the opinion of the court below in this caae.

Bresler v. if. 8, d N. I. R. B. O.. De
cember Term, 1858. See, also, 61 U. S. m
How.), 26.

An attempt to apply the term '* inland navi
gation" in this country, as it exists in England,
would be as difficult and impracticable as to
apply here the English definition of navigabk
water.

Boioman v. Wdthen, 2 McLean, 882; Ang .
Wat. Courses', sees. 545, 550.

Or, as unreasonable as to adopt the English
definition of admiralty lurisdiction, limiting it
to the high seas outside the limits of any oounlv.
This rule was never adopted in thiscoantir.'

The Jefferson, 10 Wheat. . 428 ; Pe^roux y.Hov-
ard, 7 Pet., 842; U. 8. v. Ooombt, 12 Pet.. 71

The Supreme Court of the State of Micliigan
referred to several English decisions, to ahov
that when a specific class of vessels was named
in a statute, followed by general words that the
latter were to be construra to apply only to vt«
sels of the same class of build or business, and
the inference, that they suegest rather than state,
is that the words ' ' vessels ofany description what-
soever," are controlled bv the vessel previously
described, and must be held to Apply only to
vessels like barges, canal boats and lighters/and
used in the same way.

5 Mich.. 884.

We submit that there is no such arbitrary
rule of construction, and whether the geneni
words are thus be controlled and construed is a
question of intent, to be drawn from tlie whole
Act.

Here it is apparent that there is no such in
tent. Canal boats, barges and lightera, wher-
ever and however used, are to be exclud«l from
the benefits of the Act. and the Vords **any v«!^
sel," &c., are not used at all to enlarge the num-
ber and kind of vessels thus exclud«l. The ob^
ject of the remaining part of the exception is to
exclude from the benefits of the Act, vessels of
every description, large or small, uaed in a cer-
tain wav, VIZ. : in rivers or inland navigatjoo,
and to give the construction contended f<^ would
extend the benefit of the Act to all large vessels
however used, and thus defeat the obvioos in
tent of the Act of excepting from its benefit all
vessels used in rivers and inland navlgalion.

In this respect the exception of the Ad of
Congress requires a different construction from
the exception in the Stat. 58, sec. 8. There h
but one class of vessels affected by this, othtr
than unregistered ones.

But the^nglish cases cited, so far from frnt-

66 U.&

1860.

MooRB Y. Aktrican Tranbportatton Co.

1-41

oring the view suggested by the court, seem to
us to have a directly contrary effect.

Hunter v. McOtnon, 1 Bligh, 574; Morewood
V. PdUoek, 18 Eng. L. & E., 348; 5 Mich.. 884;
Elanford v. Morrwm, 15 Q. B., 724; Begina v.
B/Md, 28 Eng. L. & E., 188; Beed v. Ingham,
26 Eng. L. & JS., 164; T^Mcf^U y. Combe, 7 Adol.
& E.. 788.

We submit that none of these cases in the
remotest decree authorize or favor the construc-
tion ; that the words '' any vessel of any descrip-
tion " are to be limited to vessels of the same
kind or business as canal boats, barges and
lighters.

\X is further suggested that the navigation of
the lakes is not to be deemed inland, because
lake vessels also navigate the ocean. This is
equally true of vessels navigating the great riv-
ers, and the question whether such vessels are
used in ocean navigation or in inland, must be
determined precis^y as such questions have
before been determined. The question will be:
what is the navigation in which they are prin-
cipally used?

See Tke Coal Boat D. C. Salialmry, Olcott's
Adm., 74; Buckley v. Brown, Bright's Dig. U.
S. Laws, 805; MeCormick v. Ivea, Abb. Adm.,
418; N. J, Steam Nav, Co, v. MerehanUf Bk.,
6 How., 892; WallU v. Cheeney, 4 Am. Law
Reg.. 807.

Mr, George B« Hibbftrd» for defendant
in error:

The steamboat, at the time of her being
burned, was not *' used in inland navigation,
and, therefore,the defendant in error, though a
common carrier, was not liable for the loss of
(he iTOods.

The AxX entitled *'An Act to limit the liabili-
ty of ship owners and for other purposes," ex-
empts the defendant in error from that liability.

9 Stat, at L., 685.

The principle of the Act, unqualified by tl e
limiting clause in question, has been operative
in all modern civilized nations possessing a na-
tional commerce, whenever the policy of such
nations has been finally adapted to the exigen-
cies of that commerce.

By the civil law itself, the owners of vessels
were liable in matters ex delicto, according to
the amount of their respective interests in the
ship. This, however, was not the case in mat-
ters arising ex eontraetu.

2 Br. Civ. & Ad. L., 186, 188, 141; The Be-
beeea, 1 Ware. 194, 195.

The principle of this rule was adopted by
nearly, if not quite all, the maritime powers of
CuTope. excepting England; though England
80on adopted it by legislation, with the impor-
tant qualification, however, that the extent of
the liability, both in matters arising ex contractu
and ex delicto, should be equal only to the
amount of the interest of the owner sought to
be charged in the ship itself.

Grotius de lure belli et pacia, Li v. 2, chap.
11, sec. 18; Marine Ordinance, Louis XI v.,
tit. 4; 2 Pet. Ad. Decis., Appendix, 16; Cleirac,
T^avigation des rivieres, art. 15, p. 502; Consu-
lat de la Mer., ch. 84; 7%« Bebecca,! Ware, 195,
196. 197.

The whole principle which led to the legis-
lation in England (and which legislation was
the source of our own Act), was recognized in
its application to ships; and that, too, be it oh-

See 24 How.

served, without limitation as to the waters up-
on which the ships were navigating.

Abb. Ship., 895; see, also, Bov^r "v. Law-
9on, Rep. temp. Hardwicke, 85; Abb. Ship.,
895: Sutton v. MUcheU, 1 T. R., 18; FmtDard
V. Pittard, 1 T. R., 27.

These decisions were followed (in the enlight-
ened policy of promoting so much of commerce
as was really national) by the Acts of 26 Geo.
III., ch 86, in 1786; and this by 58 €^. III.,
ch. 159, in 1818.

The courts have recognized the whole objects
of this legislation to be ''to encourage persons
to become the owners of ships."

Oale V. Laurie, 5 Barn. & C, 156.

The Acts of Geo. III. are the sources and
almost the exact originals of the Act of Con-
gress of 1851.

The common law rule, unqualified by legis-
lation, became the law of this country. The
case of The Lexington was decided in 1848
(The N,J. 8. i\r. Co, V. The Merchants' Bank,
6 How., 844), and was followed by the Act of
1851.

The causes which led to the passage of the
Act of 1851 were, therefore, precisely similar
to those which led to the English le^latioc.
The Acts of both countries are essentially the
same. The commercial policy of both coun-
tries and the objects to be subserved by the
legislation of each in this particular in each
case are alike. The authorities of either coun-
try bearing directly upon either of the Acts of
kindred legislation, must aid in the construction
sought for.

Approaching the immediate question, the de-
fendant in error claims directly that the navi-
^tion of Lake Erie and the great western lakes
16 not "inland."

The meaning of the words "inland naviga-
tion," as thus employed, does not include the
navigation of such waters.

The question is not what is the geographical
meaning of the word "inland," used in dis-
tinguishing seas from oceans, or the waters
witnin the t>ody of a continent from the hi&rh
seas. The question is as to the meaning of the
phrase * * inland navigation, "employed in refer-
ence to a commercial business and to promoting
commercial objects. In this view, the meaning
of the same words, or equivalent phrases in the
same connection, are tne true governing au-
thorities, so far as mere definition is con-
cerned.

The exact definition of the word "inland,"
as well as the phrase "inland navigation,"
shows that such navigation is not the naviga-
tion of the great western lakes.

Webster's Diet. "Inland"; Worcester's Diet. ,
"Inland"; Rees, Encyclopedia, "Inland Navi-
gation"; Encyc. Brit., "Navigation Inland."

The word "inland" thus used is opposed in
meaning to the word ' ' foreign. " Burrell's Law
Diet. "Foreign;" Story, Bills, sees. 22, 23;
Conk. Adm., 57.

The consideration of some decisions may fur-
ther illustrate this view. The Statute of Limit-
ations of the State of Georgia provided that in
certain cases it should not applv to parties "be-
yond seas." It was held that the phrase meant
beyond the limits of the State, irrespective of
the question whether or not the party was in
fact beyond any sea or other water.

*77

1-41

BUFBEMB COUBT OV THR UmITXD StATBS.

Due. Tkbm,

Murrayj, Baker, 8 Wheat., 541; Shelby y,
Guy, 11 Wheat.. 361;

BeyoBd the jurisdiction or the State of Qeor-
gia, the party was ** bevond seas" — beyond the
control of the jurispruaence of that State, and
necessarily, therefore, not "inland."

Upon the actual meaning, therefore, of the
word " inland " so used, it must be determined
that the words ** inland navigation " in the stat-
ute signify only a navigation carried on within
the bmly of the country ; and doubtless (partic-
ularly when considered, as the question must
be, and is hereinafter, under the power of Con-
gress over commerce), when applied to lake
navigation, a navigation conducted beneath the
Jurisprudence of a single State. It means a
navigation which, when carried on on the lakes,
is not the coasting trade.

The navigation '* to be inland " must be on
waters themselves "inland." The great west-
ern lakes are not such inland waters.

This is a question of commerce and of law,
not of geographv. Other waters exist upon the
face of the globe the precise parallel of the
western lakes in commercial and legal view,
which certainly are not "inland"; therefore the
western lakes are not " inland."

The case of The Genesee Chief v. Fitzfiugh, 12
How., 448, which will be hereafter adverted to
in a more important view, established the prin-
ciple that the business of the western lakes and
their national position determined their com-
mercial and legal character, and that the dis-
tinctions convenient in England of the rise and
fall of the tide and of the saltness of the water,
had nothing to do with thus fixing that char-
acter. Excluding, therefore, once for all, these
immaterial tests, the great western lakes, when
viewed in comparison with other waters, not
only are not " inland," but are commercial and
le^ seas.

waters, over which extended the body of ad-
miralty law which never was applicable to an
•* inland" trade, certainly never were "inland."

The T\Dee Gebroedere, 8 C. Bob., 886.

Our waters, their very parallel in every phys-
ical, commercial and legal feature, and over
which the same body of Taws as was decided in
The Genesee Chitf case from the verv character
of the waters, extends to-day, equally are not
inland.

But as has been said, these waters are com-
mercial and legal seas and, therefore, their nav-
igation cannot be "inland." They are extra
fauces terra.

The Harriet, 1 Story, 261, 259.

They are waters where, to adopt the lan^age
of Sir JVlatthew Hale, " a man may not discern
from shore to shore."

De port Maris Harg. Tracts, ch. 4, p. 10;
Hawkins PI. C, b. 2, ch. 9, sec. 14; U, 8. v.
^^ru^A, 5 Mas., 290. 298.

They are not within the boundary of any
county ; and within the definition of Lord Coke
himself, are not. therefore, inland.

4 Inst. 140, ch. 22; 2 East. P. C, ch. 17, sec.
10; Com. Dig. Adm., E. 7; De Ixmo v. Boit, 2
Gall., 898, 4^. 427; Waring v. Clarke, 6 How.,
441, 462.

They are bordered not only by the States con-
stituting the United States, but by the province
of a foreign nation. Their navigation is sub-
ject to all the hazards that attend that of the

678

ocean. "Hostile fleets," to use the language of
Chitf Jttstiee Taney in The Genesee Chief, **have
encountered upon them and prizes have been
made there. " The same system of admiralty law
applies to them as to the commerce of the re-
moter oceans. That commerce is equally exten -
sive with that of our foreign commerce itscdf.

It is repeated, there is not a characterifltic
(excluding the immaterial ones of the ebb and
flow of the tide and the saltness of the water)
excluded bv The Genesee Chief and which in
this view always would have been excluded. (2
Pet. Ad. Decis., LXXI. Spell man, subj. Adm.
Juris., 226; 2 Hale, P. C, 16) belonging to the
"high seas" — the "main sea" of Coke and
Hale and Seldon and Blackstone. which does not
belong to the western lakes. How, then» can
their navigation be termed inland? Would the
navi^tion of such waters be termed inlaiid
within the meaning of the Statutes of G^eo. U.
and Geo. III. ? Would the navigation of the
waters of the " four seas " (Hargrave & Butler's
Notes to Co. Litt., 1. 2, ch. 6, sec. 157; Chit..
Com. L., 88-102), including St. George's Chan
nel or the Irish Sea, be deemed "inkmd" by an
English court, construing the language in ques-
tion as used in the Statutes of €ko. III. ?

Some minor considerations will show in this
connection that such navigation cannot be called
Inland.

B^ the law of nations.exclusive national juiis-
diction for certain purposes is established over
at least a marine league from the coast.

1 Kent's Com., 27. 28. The whole of Dels*
ware Bay has been determined to be within
national jurisdiction.

Opinion of Edmund Randolph, Atty-Gen.
U. 8., 1; Opinion, Atty-Gen., 18.

The navigation of none of these waters would
be termed "inland," yet it should be if the
western lakes are " inland."

The object of the law determines the fact
that the navigation of the lakes is not ' ' inland *'
within the meaning of the Act.

In ascertaining the object of the law, the
court cannot, in the language of Chief JuUite
Taney, in any degree be influenced by the con-
struction placed upon it by individuafmembeni
of Congress in the debates which took place oo
its passage. We must gather the intention of
Congress from the language used in the lav,
comparing it, where ambiguity exists, with the
laws upon the same subject, and looking, if
necessary, to the public history of the times in
which it was passied.

Aldridgey. WilUams, 8 How., 1-24; Bank of
Penn. v. The Ctmrnanwealth, 19 Pa., 144; Suuth
wark Bank v. CommonweaUh, 26 Penn., 446.

The value of the property annually carried
in the transactions of lake commerce exceeds
9600,000,000 (exceeding the total value of piop>
ert]^ exported and imported in the United States
in its foreign trade). It is conducted in monr
than sixteen hundred vessels, with an aggr-
egate burden exceeding 400.000 tons.

Report of Com. of Commerce to H. of R.
1826, Vol. III., No. 816. pp. 9. 10. 11; Report
of Hon. I. T. Hatch, Commissioner, &c.. loH.
of R.. June 18, 1860.

The strictly foreign trade with Canada alone
on the lakes exceeds $80,000,000 in amount an-
nually, making our strictly foreign coDuneroe
with Canada a third in actual Yuue and flfa»t

1860.

MOOKB v. AlCBRICAN TBANfiPORTJLTIOK Co.

1-41

iu the amount of tonnage employed, compared
with our commerce with all the foreign coun-
tries with which we have any trade.

Considering, therefore, the undoubted ob-
jects of the Act, the immediate cause which led
Co the passage of the Act — the loss of The Lex-
ington, running in the coasting trade like the
vessels on the western lakes, the extent of the
waters on which the commerce is conducted,
the extent and national importance of that com-
merce itself, it certainly must be apparent that
the promotion of such a commerce must have
been within the objects of the Act.

Our whole system of statutory law, in refer-
•ence to the coasting trade, establishes the fact
that such a trade has never been regarded as
''inland in its character."

2 Kent's Com., 596, 600; BlUoUv. BasseU, 10
Johns., 10,11.

The whole spirit of express legislation on
these subjects shows such to be the fact.

Ordinance 1787, 1 Stat, at L., 52, nou.

The Act of 1798 in respect to the enrollment
of vessels (1 Stat, at L., 307); the Act of 1831.
conferring enlarged privileges upon enrolled
vessels on the northwestern frontier (4 Stat, at
L. , 487); the Steamboat Inspection Acts of 1838
<5 Stat, at L., 805), and of 1852 (10 Stat, at L..
4t2); the Act of 1850 requiring transfers of ves-
sels to be recorded (9 Stat, at L., 440); the Act
of 1845 giving the district courts jurisdiction of
admiraltv cases (5 Stat, at L., 726), all evident-
ly regard the coasting trade of the lakes as the
same in character with that of the seaboard.

Watson V. Marks. 2 Am. Law Reg., 157. U.
S. Dist. Court, E. Dist. Penn. ; Ohamplain and
^. L. R. R. Go, V. VaUnUne, 19 Barb., 484.

Admiralty jurisdiction, it was held in The
Oenesee Chief, extends over the Western lakes.
They cannot, therefore, be "inland."

7%« Oeneeee Chief y. FUzhugh, 12 How., 448;
The Chae. Meare, 1 Newberry, 197; Woolrych
Law of Waters (Law Library), 62.

Admiraltv jurisdiction was never held; and,
regarding the remedies administered under it,
never could have been held, to extend over in-
land navigation.

1 Curtis, Juris. Courts, U. S., 84, 48; De Jjh
^io V. Boyt, 2 Gall., 893, 486, 468, and authori-
ties cited.

This may especially be said under the recent
decisions, that admiralty jurisdiction does not
include matters relating to transactions taking
place within the limits of a single State.

AUenY. Newberry, 62 U. S. (21 How.), 244;
MagtUre v. Card, 62 U. S. (21 How.), 248.

Congress intended by the phrase "inland
navigation " simply to exclude from the opera-
tion of the Act only such places as it could not,
under the Constitution, exercise such power
over.

Congress has no power under the Constitu-
tion to legislate as to commerce carried on with-
in the bounds of anv one State.

Qibbone v. Ogden, 9 Wheat., 1, 195; Steam-
boai Co. V. Livingston, 8 Cow., 718, 755.

Congress has the constitutional power to ex-
ercise Legislation over the western lakes.

The Genesee Chiefs, FUzhugh, 12 How., 448.

Had it been the intent of the Act that it
should not apply to any of the lakes, the words
*' rivers and lakes " would have been used. As
it is, it uses the term "inland navigation," and

See 24 How.

80 uses it in the meaning given it by the courts
— the navigation of waters within the bounds
of a single State over which Congress has no
control.

Steamboat Co, v. Livingston, 8 Cow., 755;
Gibbons v. Ogden, 9 Wheat., 194; The James
Morrison, 1 Newberry's Adm., 241, 246; Seteell
V. Jones, 9 Pick., 412, 414.

In short, a proviso carves special exceptions
only out of the enactinjif clause; and those who
set up any such exception must establish it as
being within the words as well as the reasons
thereof.

The U. S, V. Dickson, 15 Pet., 141, 165.

II. The steamer in question was not, within
the meaning of the Act. a "canal boat, barge or
lighter, or vessel of any description whatso-
ever," and therefore the Act in question ap-
plies to her owner, and exempts the defendant
in error from liability.

The body of the Act should be construed lib-
erallv, and the excepting clause strictly. The
whole object of the Act sustains the position
here taken, that under familiar rules of con-
struction, the quoted words do not include
steamboats of the class of The Spauldine. Canal
boats, barges, lighters and other vessels of the
same general kind, are not exposed to the haz-
ards of the more important vessels, and the
owners, therefore, do not need the same protec-
tion.

General words, such as the word "vessel"
used in connection with particular words, such
as canal boat, bargje ana lighter, can onlv be
construed to mean something of the same kind
and of no larger consequence than the things
particularly named.

Dwar. St., 704, 706, 707; Broom, Leg. Max.,
455.

This rule, about which there can be no doubt
as applied to very similar words, is plainly
shown in various cases.

In Regina v. Reed, it was expressly decided
tliat a steam tug did not come within the mean-
ins of the language, " Whereby, lighter or
other craft," for the reason, as expressed by
Lord Campbell, that " a steam tug is not a ves-
sel ^usdem generis,** as " whexry and lighter."

Rsg. V. Reed, 29 En^. L. & E., 188, 185.

The same ouestion is again fully considered
and further illustrated in Reed v. Ingham, 26
Eng. L. & E., 164; Sandiman v. Beaeh, 7
Bam. & C, 96(14 Eng. C. L.. 22), and Cashier
V. Holmes, 2 B. & Ad., 592 (22 Eng. C. L.
146).

Similar rules govern the construction of con-
tracts, and indeed the principle is undoubted.

2 Pars., Cont., 15, note(B,), and 262 A, note
(H. C), and the very many cases cited.

Mr, Justice Nelson delivered the opinion of
the court:

This is a writ of error to the Supreme Court
of the State of Michigan.

The suit was brought by the plaintiffs in the
court below against Uie defendants, a Company
incorporated under the laws of New York, and
owners of the steam propeller M. B. Spaulding.

The goods in question were put on board of
the propeller at Buffalo, on the 80th October,
1856, for transportation to Detroit, and on the
next day they took fire, and vessel and goods
were entirely consumed, without any default

67»

1-41

BXJFBBIfB GOTTBT 09 THB UhUBD 8tATB8.

Dbc. Tbbm,

or negligence of the master or crew, or any
know^ge of the defendants, their officers or
agents. The propeller was of more than twenty
tons burden, and was enrolled and licensed for
the coasting trade, and engaged in navigation
and commerce, as a common carrier, between
ports and places in different States upon the
lakes, and navigable waters connecting the
same.

The defendants relied, in their defense, upon
the Act of Congress, passed March 8d, 1851,
9 Stat, at L., 035, entitled "An Act to limit the
liability of ship owners. and for other purposes. "

The 1st section provides that no owner of
any ship or vessel shall be liable to answer for
any loss or damage which may happen to any
goods or merchandise which shall be shipped
on board any such ship or vessel, by reason of
any fire happening on board the same, unless
such fire is caused by design or neglect of such
owner, with a proviso that me parties mav make
such contract between themselves on the sub-
ject as they please.

The 2d section provides against any liability
of the owner of the vessel. In case of precious
metals. &c., unless notice and entry on the bill
of ladine.

The 8a section provides against liabilitv of
the owner, in cases of embezzlement or loss,
&c., by the master, officers, &c., of any property
shipped on board, or for any loss by collision,
<&c., without the privity or knowl^ge of the
owner, exceeding the value of his interest in
the ship and freight.

The 4th section provides for an apportion-
ment of the proceeds, in case of the sale of the
ves^ael, among the several freighters or owners
of the goods, if th^se and the freight should
not be sufficient to pay each loss.

The 6th section saves the remedy against the
master and hands, in case of embezzlement or
loss, or for any negligence or malversation by
these persons.

The 7th section, after providing a penalty
for shipping oil of vitriol, and such dangerous
materials, without notice to the master, is as
follows: " This Act shall not apply to the owner
or owners of any canal boat, barge or lighter,
or to any vessel of any description whatsoever,
used in rivers or inland navigation."

It is insisted, on the part of the plaintiffs,
that the navigation of Lake Erie, and also of
all the other lakes in connection therewith, is
within the exception to this Act, as falling
within the words "inland navigation." The
question thus raised is not without difficulty, as
we have no clear or certain guide to lead us to
the true meaning, attached to these words, by
Congress. Loolung at them in a very general
sense, and without much regard to the reasons
or policy of the law, it may, with some plausi-
bility be urged, as has been, on behalf of the
plaintiffs, that the phrase " inland navigation "
was used as contrMlistioguished from naviga-
tion upon the ocean; and that all vessels navi-
gating waters within headlands, and after they
have passed out of the ocean, come within the
designation. But a construction thus broad
can hardly be maintained, for it would be un-
reasonable to suppose that Congress intended to
apply one rule of responsibility to the owner in
respect to the same vessel upon the ocean, and
another upon the bays or rivers, in the course

6«#

of the same voyage. Besides the abeenoe of
an V good reason for such a distinction as to the
rule of responsibility, it would have seriously
embarrassed all parties engaged in commerce
of this description in respect to their securities
against accidents, and losses by means of in-
surance, bills of lading, charter parties, ^ec.

The connection in which this term *' inland
navigation " is used in the Act, we think, may
throw some light upon the intent of the law
makers.

It is declared that the Act shall not apply to
the owner of any canal boat, barge or l^liter.
or to any vessel of any description used in riv-
ers or inland navigation. It will be seea that
certain craft is excepted from the Act eo nomine,
and then a class of vessels vrithout any desig-
nation, other than by a reference to the waters
or locality in which used. But the character
of the craft enumerated may well serve to indi-
cate to some extent, and with some reason, the
class of vessels in the mind of the law makers,
which are designated by the place where em-
ployed. This class ma^ well be regarded eju^
dem genertB, and thus aid us in interpreting the
true meaning of the words of the Act, namely:
vessels " us^ in rivers or inland navigation."

Manv of the provisions of this Act were taken
from the 58 Geo. III., ch. 159, as also the ex-
ception to the enacting clause. The exception
in the English Act is as follows: that nothing
in this Act shall extend to the owner of any
*' lighter, barge, boat or vessel of any dtsscrip^
tion whatsoever, used solely in rivers or inland
navigation."

The language of this exception is more spe-
cific than Siat used in ours; but the meaning
intended to be conveyed, we think substantially
the same. The words in ours are, " any vesaei
of any description whatsoever, used in rivers
or inland navigation." This word ''uaed**
means, in the connection found, '* employed,"
and doubtless, in the mind of Congress, was in-
tended to refer to vessels solely employed in
rivers or inland navi^tion. It was this species
of navigation — that is, on rivers and inland —
which was intended to be withdrawn fvoai the
limitation of ihe liability of the owner; and
the addition of the term *' inland navigation,"
as an alternative to rivers, was, doubtless, de-
signed, speaking in a general sense, to embrace
all internal waters, either connected with riv-
ers, but which did not, in a geographical or
popular sense, faU under that name, or which
might not be connected with rivers, bat fell
wiUiin the reason or policy of the exception,
such as bays, inlets, straits, &c. Veasels, what-
ever may be their class or description, solely
employed upon these waters, are usually em-
ployed in the trade and traffic of the localities,
carried on chiefly by persons residing upon
their borders, and connected with the looal
business, and without the formalities and pre-
cautions observed in regular commercial par-
suits, with a view to guard against accidents
and losses, such as insurance, bills of lading, &c.
It was fit and proper, therefore, in this descrip-
tion of trade and traffic, that the common law
liabilities ol the earner should remain unal-
tered.

But the business upon the great lakes lying
upon our northern frontiers, carried on* be-
tween the States, and with the foreign nation

6o U. &

1860.

MOOBB y. AmBBICAN TRAiraPORTATION Go.

1-41

with which they are connected (and this is the
only business which Congress can regulate, or
with which we are dealing), is of a very dif-
ferent character. They form a boundary be-
tween this foreign country and the United
States for a distance of some twelve hundred
miles, and are of an average width of at least
one hundred miles; and this, without including
Lake Michigan, of itself three hundred and fifty
miles in length and ninety in breadth, which
lies wholly within the United States. The ag-
gregate length of these lakes is over fifteen
hundred miles, and the area covered by their
waters is said to be some ninety thousand
square miles. The commerce upon them cor
responds with their magnitude.

According to the best official statistics, the
value of the property annually, the subject of
this commerce, exceeds $600,000,000. employ-
ing more than sixteen hundred vessels, with an
aggregate tonnauge exceeding four hundred
thousand tons. These vessels are duly licensed
for the foreign trade, as well as for that carried
on coastwise. This commerce, from its magni-
tude, and the well known perils incident to the
lake navigation, deserves to be placed on the
footing of commerce on the ocean; and we
think, in view of it, Congress could not have
classed it with the business upon rivers, or in-
land navigation, in the sense in which we un-
derstand these terms.

These lakes are usually designated by public
men and jurists, #hen speaking of them, as
l^eat inland waters, inland seas, or great lakes;
and if Congress intended to have excluded
them from the 'limitation of the liabilities of
owners, it would have been most natural and
reasonable, and, indeed, almost a matter of
course, to have referred to them by a more
specific designation.

The decision in the case of The Lexington,
which was burned upon Long Island Sound,
led to this Act of 1851. That case was decided
in 1848, subjecting the carrier in case of a loss
by fire. 6 How., 844.

The sound is but one hundred and ten miles
in length, and from two to twenty in breadth.

The waters of these lakes, in the aggregate,
exceed those of the Baltic, the Caspian, or the
Black Sea, and approach in magnitude those of
the Mediterranean. They exc^ those of the
Red sea, the North Sea or German Oc«an. the
Sea of Marmora, and of Azoff. And, like the
lakes, all of these seas, with the exception of
the North Sea, are tideless. The marine disas-
ters upon these lakes, in consequence of the
few natural harbors for the shelter of vessels,
and the consequent losses of life and property,
are immense. According to the report of a
committee in the House of Representatives in
1856, the destruction of property upon Lake
Michiflun in the year 1855 exceeded $1,000,-
000. The appalling destruction of life in the
loss of The Erie upon Lake Erie, and of The
Superior and Lady Elgin upon Michigan, are
still fresh in the recollections of the countiy.
The policy and justice of the limitation of the
liability of the owners, under this Act of 1851,
are as applicable to this navigation as to that
of the ocean. The Act was designed to pro-
mote the building of ships, and to encourage
persons engaged m the business of navigation,
and to place that of this country upon a foot-
See 34 How.

ing with England and on the continent of Eu-
rope. The Act not only exempts the owner
from the casualty of fire, but limits his liabil-
ity in cases of embezzlement or loss of ^oods
on board by the master, officers, &o. , and also
for loss or damage from collisions, and, indeed,
for any loss or damage occurring without the .
privity of the owner, to an amount not exceed-
ing the value of the vessel and freight.

It has been suggested that our construction
of the Act may embrace within the limitation
of the liability of the owners western lakes
lying within a State, such as the Cayuca,
Seneca, and the like. But the answer is, that
commerce upon these lakes, and all others
similarily situated, is not within the regulation
of Congress. The Act can apply to vessels only
which are engaged in foreign commerce, and
commerce between the States. The purely in-
ternal commerce and navigation of a State is
exclusively under state regulation.

We think the court below tocu right, and that
the judgment should be affirmed.

Mr, Justice Catron, dissentins:
By the common law of England ship owners
were common carriers, and insurers against
loss, of the goods shipped, without limitation
as to the waters upon which the ships were
navigated. Abbott on Shipping, 896. In the
United States the same law governed. 2 Kent's
Com., 599; Ifew Jersey Steam Navigation Co.
V. Merchant* Bank, 6 How., 284. In parts of
continental Europe the law was different. The
preamble of the British Act of 7 Gteo. III. de-
clares, '* that it was of the ^atest consequence
and importance to the kingdom to promote
and increase the number of Slips and vessels,
and to prevent any discouragement to mer-
chants, and others, from being interested and
concerned therein." The object of the British
legislation was "to encourage persons to be-
come owners of ships. " By the Act of Geo.
II., and others, the Parliament exempted ship-
owners from liability in several cases of loss,
and among them, loss by fire. That these laws
applied to commerce on the oceaii, is not con-
troverted. Nor are they in force on the great
lakes, partly belonging to Great Britain, on
this continent.

Our Act of Congress of March 8, 1851 (9*
Stat, at L., 685), was passed to put our com-
mercial marine on an equal footing with that
of Great Britain, so that the increase of the
number of ships, and the navigation of them,
might be equally encouraged. That competi-
tion with British shipping was the object of
Congress, is manifest to my mind from the
fact that the provisions of our statute corre-
spond to British statutes. As there was no
competition on our lakes, great or small, there
was no reason for exempting owners of vessels
from liability; and especially, for the reason
that a vessel navigating a lake from one port
to another, in the same State, is not within the
Act: as Congress could only legislate by force
of the commercial power, and regulate com-
merce among the States. The Act of 1851 does
not in terms, nor by any fair intendment, as I
think, attempt to regulate such internal com-
merce. Fearing, however, that it might be
held to apply to actual navigation, an excep-
tion was appended to the Act, declaring that it

681

^47-257

BURBBMB COOBT OF THS UHITKD STATBB.

Dec Tbbm,

should not apply to owners of canal boats, nor
to lighters or barges. This description of ves-
sels were brought into, or used, in harbors and
bays; and these being arms of the sea, might
be held as coming within the provisions of the
Act of Congress, the commerce they were en-
gaged in being connected with that on the
ocean. The commerce on the Chesapeake,
through the tide- water canal, into the Dela-
ware, by vessels propelled by steam, and the
commerce carried on through the Hudson, in-
to New York harbor, by canal boats and
barges, shows the reason why the exception
was made, as respects this clasE of vessels.

And then comes the exception of vessels
that had no connection with commerce on the
ocean, which declares, that the Act shall not
apply to any vessel, of any description whatso-
ever, used in rivers, or' used in inland naviga-
tion. Why should navigation on the Mississippi
and the St. Lawrence be governed by one
law, and the great lakes, Green Bay, Lake
€hamplain. Great Salt Lake, Utah Lake, and
many others, by another rule of liability?
Congress has made no such distinction; but
on the contrary, every section and clause of
the Act of 1851 refer to losses happening on,
or to vessels navigating, the ocean. The 3d
section is especially significant of this conclu-
sion.

What the expression, "inland navigation,"
means, must be ascertained from the geogra-
phy of our own country, and the commerce
carried on by vessels on its waters. Lake Erie
is inland, and a voyage from Buffalo to De-
troit is, in my jud^ent, " inland navigation."
I am, therefore, ot the opinion that the judg-
ment should be reversed.

ated— 70 U. S. (3 Wall.), 168 ; 8 Blatohf ., 22 : 1 Cliff.,
ess : 1 Brown, 157 ; 4 Saw^ 300: 6 Biss., 866 ; 44 N.
Y., 306 ; 16 Am. Bep., 491 (67 N. Y., 286); 18 Am. Bep.,
681 (113 Mass., 405).

THE POWHATAN STEAMBOAT COM.
PANY, Plff.inEr.,

THE APPOMATOX RAILROAD COM-
PANY.

(See S. C, 24 How., 247-257.)

Jjiability of one of several carriers formina con-
tinuous line — UaJbiUtyfoT loss by fire — Sunday
law does not prevent recovery, or release carrier.

Plaintiff was the owners of a line of steamers,
employed in the transportation of gooda between
Baltimore and Richmond.

Its steamboats were accustomed to stop at Cktj
Point, for the purpose of landing goods to be seot
to Petersburg.

Defendant was a Railroad Company, and was
engaged in the transportation of goods over its
railroad from City Point to Petersburg.

A contract existed between the parties, wberebr
goods and merchandise destined for transportation
to Petersburg were to be received bv the plaintiff
in Baltimore, carried in its steamers to City Point,
and there delivered to the defendant, to be bv it
transported over its railroad to the place of des-
tination.

One of the steamboats of the plaintiff left Bald-
more every Saturday afternoon, arrived at City
Point on Sunday, and there such of her cargo m
was destined for Petersburg was landed and de-
posited in the warehouse of the defendant and
remained in the warehouse until the following
day.

After the goods in question had been so depos-
ited, and on the same dav the warehouse and all the
goods were destroyed by fire, suit was brought
against the plaintiff by the shipper of the goods,
and payment was recovered against it.

All labor at any trade or calling on a Sabbath day,
except in household or other worlc of necessity or
charity, is prohibited in the State of Virginia by the
16th section of the code.

Plaintiff made the contract with the shippers io
its own name, collected the entire freight money,
and paid over to the defendant such portion of it
as belonged to its under the arrangement.

To take care of the roods on the ** Sabbath day,"
and safely and securely keep them, after the goods
were received, was a work of neoeasity and, there-
fore, was not unlawful.

There Is no authority in any court to declare the
goods forfeited, even admitting that the acts of
landing and depositing the goods, and of opening
and closing the warehouse on Sunday were within
the pi'ohlbltlon of the statute.

Subsequent custody of the goods was certainly
not within that prohibition; and ifnot^ theQ tbelaw
imposed tbe obligation upon the defendant tu
keep the good safely and securely until the folloir-
Ing morning, and afterwards to transport them
over the railroad to the place of destination, and
deliver them to the consignees.

As the subsequent custody of the goods was not
unlawful, the obligation of the defendant, under
the circumstances of this case, was not varied by
the fact that the goods were deposited in its wan>
house by its consent on ** a Sabbath day.*'

Argued Feb, 5, 1861. Decided Feb. 18, IStSl.

IN ERROR to the Circuit Court of the UniKil
States for the Eastern District of Virginia.
This action '^as commenced by the preseot
plaintiff in error, in the court below. The trial
resulted in a verdict and judgment for the de
fendant, and the plain tin brought the case to
this court by writ of error.

The case further appears in the opiaion of
the court.

Nora.— Sundat/, when heffins and ends ; contnocCs
madt on ; not a court day ; injuries incurred in travel-
ing on ; Wiwk d/nie on ; sales on,

if property is exposed to imminent danger it is
not a violation of the statute prohibiting labor on
the Sabbath, to preserve it. Parmalee v. Wilks, 22
Barb., 640; 1 Hill. 76.

In some states Sunday begins at sunset on Satur-
day and ends at sunset next day ; but generally, it
commences at midnight t)etween Saturday and Sun*
day and ends in Zi hours thereafter. Kilgour v.
MUes, 6 Oill & J., 268: Bacon s Abr., Heresy, D ; 1
Salk., 78; 1 Sellon. Pr., 12: Pulling v. People, 8
Barb.. 884 ; Finn v. Donahue, 35 Conn., 216 ; Huide-
kqper v. Cotton, 8 Watts, 56.

By statute in some States contracts made on Sun-
day are void ; generally, however, thev are binding
if valid in other respects. They are valid at common
law. Kepner v. Keefer, 6 Watts, 281 ; Leigh, N. P.,
14 : 5 B. & C, 406 ; 4 Blng., 84 ; 1 Crompt. ft Jer., 180 ;
€hitty. Bills, S9; Wright, 764; 10 Mass., 812: Dela-
mater v. Miller, 1 Cow., 76, n.; Cowp., 640; 1 W. Bl.,

«82

409 ; 1 Str., 702 : Drury v. Defontalne, 1 Taunt., 13S;
Fax V. Mensch, 3 Watts & S., 444 ; Bloom r. Rich-
ards, 2 Ohio St., 387: Horacek v. Keebler, 5 Neb^
365 ; Adams v. Gay, 19 Vt., 865.

History of doctrine that Sunday is dies nonjurid-
i€U8. Story V. BUiott, 8 Cow., 27 ; see, also, Nabors
V. State, 6 Ala., 200; Swann v. Browne, 8 Burr., 159&
This is so at common law for award or return <4
process. Van Vechten v. Paddock, IS Johns. 17)^ :
Qould V. Spencer, 5 Paige, 641. The court may, now-
ever, permit an amendment (Boyd v. Vanderkemp,
1 Barb. Ch., 2T3, 289) : or defendant may, by his acta
waive the defect. Wright v. Jeffrey, 5 Cow., 15. A
demand on Sunday ts nugatory. Delamater v. Mil-
ler, 1 Cow., 75. Compromise of a suit on Sunda}* ^
good. Shank v. Shoemaker, 18 N. T., 489 ; Morris v.
Crane, 4 Ch. Sent., 6. An injunction may be i»ii*'d
on Sunday when necessary to prevent an irrepars*
bio injury. Langabier v.Fairbury, Jfcc, K. ILOc^..
64 III., 248: 16 Am. R., 560.

Labor on Sunday cannot be recovered for, wheiv
such labor is against the statute (Watts v. Van N

« U.&

ideo.

Powhatan Btj&amboat Co. v. Appomatox R. R. Co.

247-257

Mes»n. William P. Joynes and Will-
iam Sehlejr, for the plaintiff in error:

The court below erred iu regard to the foun-
dation of the present action. It is not founded
on the contract for the delivery and reception
of the goods on Sunday. That contract was
fully executed on both sides. The action is
founded on a breach of duty alleged to have
arisen on the delivery of the goods to the de-
fendant— the duty to take care of them.| This
was a duty which was lawful to perform on
Sunday. It was not imposed or regulated by
the contract, but was the legal consequence of
the possession of the goods.

Granting that an action could not have been
maintained on the contract if either party had
refused to perform, yet it is only in Uiat sense
that such a contract is void.

SnUlh V. Bean, 15 N. H., 577; WiUiams v.
PatU, 6 Bing., 658; Adarm v. Oay, 19 Vt.,
858; Sumner v, Jones, 24 Vt., 817; Oloughy.
Davis, i^H. H.,500.

When such a contract is executed, legal rights
and obligations arise out of it as in other cases.

P. W. db B. B, B. Go, v. P. <fe H. Towboat
Co.,UV. 8. (23 How.), 209; Scarf e v. Morgan,
4 Mees. & W., 270.

When, therefore, the defendant received the
goods into its possession, it became liable to
take care of and account for them, and could
not excuse itself by setting up the illegality
of the contract under which it received them
and which it had carried into execution.

Sharpy, Tayltyr, 2 Phil. Ch., 801; MeBlavr
V. Qibbes, 58 U. 8. (17 How.), 282; Woodman
V. Hubbard, 5 Fost., N. H., 67. See, also,
Richardson v. Ooddard, 64 U. 8. (28 How.), 28.

Mr. C. Robinson, for defendant in error:

The contract between plaintiff and defend-
ant, made in contemplation of illesial employ-
ment in labor or other business on a Sabbath
dav, furnishes no legal foundation for the plaint-
iff ^s action.

The defense is complete when, as in the pres-
ent case, it appears that there was, on the part
of the plaintiff, an unlawful act which has
caused or concurred in causing, the damage
complained of.

BosiDorth V. Inhab. of Swansey, 10 Met., 865;
Robeson v. Frene?i, 12 Met., 24.

If the plaintiff insists that its demand is col-
lateral to the contract, it is decisive against it
that its claim is so mixed with the illegal trans
action in which it and the defendant were
jointly engaged, that it cannot be established

without going into the proof of that transac-
tion.

Bx parte Bell, 1 Maule & 8. , 751 ; Simpstm v.
Bhss, 6 Taunt., 246; Fivas v. NiehoUs, 2 Man..
Gr. A 8., 512; Qregg v. Wyman, 4 Cush., 822.

Mr. Justice ClilFord delivered the opinion
of the court:

This is a writ of error to the Circuit Court of
the United States for the Eastern District of
Virginia. All of the questions presented for
decision in this case arise upon the instructions
given by the court to the jur^, but a brief ref-
erence to the pleadings ana evidence will be
necessary, in order that the precise nature of
those questions may be clearly and fully under-
stood.

It was an action on the case, and the decla-
ration contained three counts, which are set
forth at large in the transcript. Among other
things, the plaintiffs alleged, in the first count,
that the defendants were common carriers for
hire; that they, the plaintiffs, at the special in-
stance and request of the defendants, on the
26th day of June, 1858, at City Point, in the
State of Virginia, caused certain goods and
merchandise to be delivered to the defendants,
as such carriers, to be by them transported from
the place of delivery to Petersburg, in the same
State; and that the defendants, in consideration
thereof, ^nd of certain hire and reward to be
p&id them therefor, undertook and promised
safely and securely to carry and convey the
goodls and merchandise to the place of destina-
tion^ and there to deliver the same; and the
complaint is, that the defendants, not regarding
their promise and undertaking in that behalf,
so conducted themselves, as such carriers, that
the goods and merchandise, through their neg-
ligence and carelessness, were wholly lost to
the plaintiffs. To the whole declaration the
defendants pleaded that they never undertook
and promised, as the plaintuffs bad thereof al-
leged against them, and upon that issue the
parties wenc to trial.

From the evidence in the case, it substantial-
ly appears that the plaintiffs were the owners
of a weeklv line of steamers, employed in the
regular and stated transportation of goods and
merchandise between the City of Baltimore, in
the State of Maryland, and the City of Rich-
mond, in the State of Virginia. Their steam-
boats, on the trip each way, were accustomed
to stop at the intermediate place called Citv
Point, on James River, for the purpose of land-

1 Hill, 76; Palmer v. Mayor, &c., of N. T., 2 Sand.,
318); but labor on Sunday is not imo facto illejral.
Sun Aas'n v. Tribune Ass'n, 44 N. Y., supr. (12 J. &
S.). 138.

Any business but judicial prooeedings may at
common law be done on Sunday. Boynton v. Pa«re,
13 Wend., 425; 1 Taunt., 131 ; MUler v. Roessler, 4 E.
B. Smith, 284.

It is BO defense, to an action for injurlnir or de~
stroying a thing hired or loaned, that it was hired
or loaned on Sunday. Harrison v. Marshall, 4 E. D.
Smith, 271 : Bertholf v. O'Ueilly, 8 Hun, 16; ard, 74
N. Y., 609 : 18 Alb. L. J., 388 ; 90 Am. U., 323 ; Nodine
V. Doherty. 29 N. Y., 116 ; Carroll v. Staten Island R.
R. Co.. 68 N. Y., 126; Stewart v. Davis, 31 Ark., 618 :
25 Am. R., 576 ; iynitra^ Parker v. Latner, 60 Me., 528.

A carrier owes the same duty to a person travel-
iDg on Sunday, in violation of a statute, as if he
were lawfully traveling, and Incurs the same re-
sponsibility as to injuries from negligence. Carroll
V. Staten Isl. R. R. Co., 65 Barb., SB ; aif 'd, 58 N. Y.,
106 : 17 Am. R., 2aSl ; Mohney v. Cook, 26 Fa. St., 842;

Sm 34 How.

Doyle V. Lynn, &c.. R. R. Co., 118 Mass., 195; 19 Am.
R.. 431.

A person traveling on Sundav in violation of a
statute, cannot maintain an action for injuries re-
ceived by insuflaclency of the highway. Cratty v.
City of Bangor. 57 Me., 423; 2 Am. R., 56 ; Johnson
V. Town of Irasburgh, 47 Vt., 28; 19 Am. R., HI;
Jones V. Andover, 10 Allen, 18 ; Lj'ons v. Disotelle,
124 Mass., 387. Walking for exercise is not traveling.
O'Connell v. City of Lewiston, 65 Me., 34 ; 20 Am. R.,
673. It was held that plalntifr could recover for in-
juries to his cattle being driven to market, in viola-
tion of statute, on Sunday, which Injuries were oc-
casioned by breaking of a defective bridge de-
fendant was bound to maintain. Sutton v. Town
of Wauwatoaa, 29 Wis.. 21 ; 9 Am. R., 534.

Where statute makes all labor unlawful on Sun-
day, and makes no exception in favor of works of
necessity, no damages can be recovered for breach
of a contract to perform such labor, as the contract
is invalid. Bernard v. Luffing, 33 Mo.. 341 ; Slade v.
Arnold, 14 B. Mon., 232. So where statute forbids

08«

247-357

BXJFBBIfB OOUBT 09 THB UmITBD STATBS.

Dbc. Tebm.

ing goods to be sent to Petersburg, and also for
the purpose of receiving other goods arriving
from the same place to l^ transported to either
terminus of the steamboat route. Defendants
were a Railroad Company,and were also engaged
in the transportation of goods and merchandise
over their railroad, extending from City Point
to Petersburg, in the same State. For many
years there had been an arrangement and con-
tract between the parties, whereby goods and
merchandise destined for transportation to the
latter place were to be received by the plaintiffs
in Baltimore, carried in their steamers to City
Point, and there delivered to the defendants, to
be by them transported over their railroad to
the place of destination . Receipts for the goods
were ^ven by the plaintiffs in Baltimore,
promismg to deliver the same to the consignees
at Peteresburg, where the plaintiffs h«l an
agent, who collected the entire freight money,
and paid over one fourth part of the amount to
the defendants. When the steamers arrived at
Cltv Point, the goods were landed, and depos-
ited in the warehouse of the defendants, which
was situated on the wharf adjacent to the rail-
road.

According to the regular course of the trans-
portation, one of the steamboats of the plaint-
iffs left Baltimore every Saturday afternoon,
arrived at City Point about noon on Sunday,
and there such of her cargo as was destined for
Petersburg was landed and deposited in the
warehouse of the defendants, and the steamer
on the same day proceeded on her voyage to the
place of hor destination. Goods so landed and
deposited remained in the warehouse until the
following day, because the defendants ran no
merchandise train on Sundays. Usually the
warehouse was opened on the occasion, and
afterwards closed oy the agent of the defend-
ants; but the whole labor of landing and de-
positing the 'goods, except the opening and
closing of the warehouse, was performed by the
plaintiffs.

Pursuant to the regular course of the trans-
portation, one of the steamers of the plaintiffs
arrived at City Point on Sunday, the 26th day
of June, 1858, about noon, with the goods in
controversy on board. On the arrival of the
steamer at the wharf, the goods, being destined

for Petersburg, were landed and deposited in
the warehouse, and the evidence shows that the
whole labor of landing and depositing them was
performed by the plaintiffs,except that the ageot
of the defendants unlocked and opened the
warehouse for that purpose, and afterwards
closed it, as ho had been accustomed to do oo
former occasions. After the goods had been fso
deposited, the steamer proceeided on her voyage
up the river, and on the same day the warehouse
and all the goods were destroyed by fire. Snlt
was brought against these plaintiffs by the ship
per of the goods, and payment was recovered
against them for a sum exceeding $12,000,
wnich they had to pay. Evidence was then in-
troduced by the defendants, tending to show
that the goods were deposited in &eir ware-
house for the convenience and accommodation
of the plaintiffs, upon the agreement and no-
derstanding that the goods should remain there
until the following morning, and be at the risk
of the plaintiffs. Under the instnictiona of the
court, the jury returned their verdict in favor
of the defendants, and the plaintiffs excepted to
the instruction. It is to the concluding portion
only of the instruction that the plaintiffs now
object, and for that reason the preceding part
of it is omitted. Having assumed that state
of the case in the introductory part of the in-
struction— which the eddence adduced by the
plaintiffs tended to prove, and which, if found
to be true, and the goods had been deposited
on an ordinary wortung day, would have enti
tied the plaintiffs to recover — ^the Jury were sub-
stantial!^ told b^ the presiding justice, in tlie
condudmg portion of the instruction, that not-
withstanding the facts so assumed, still, if they
found from the evidence that the goods were
delivered on a Sunday, under a contract between
the parties, express or implied, that they might
be received and accepted on that day, and were
destroyed by fire on the day on wiiich they were
delivered and received, to wit : on Sunday the
26th day of June. 1858, then their verdict should
be for the defendants. Had the goods arrived
and been deposited in the warehouse on an or-
dinary working day, the preceding part of the
instruction assumed that the evidence in the
case would authorize a finding in favor of the
plaintiffs, and the principal question is, whether

certain kinds of lat>or oontracts for labor In viola-
tion of the statute are void. Fennell v. Rldler, 6
Bam. A C, 406 ; Allen v. Gardner, 7 R. I., SS; Haz-
ard V. Day, 14 Allen, 187; Tucker v. West, 29 Ark.,
886: Craason v. Ckws, 107 Mass., 489.

Works of necessity and charity are generally ex-
cepted from the statute ; any work, labor or busi-
ness which is morally fit and proper to be done on
that day is a work of necessity within the statute.
The necessity must be real and not exist only in the
mind of the party, nor does convenience constitute
it, nor avoidance of delay. The following decisions
have been made as to ** works of necessity.'* Fla^rff
V. MiUbury, 4 Cash.. 243; Johnson v. Irasburgh, 47
Vt., 28; 19 Am. R., Ill; McOrath v. Merwln, 112 Mass.,
467 ; 17 Am. R., 119 ; Smith v. Boston, &c., R. R. Co..
120 Mass., 490: 21 Am. R., 588; Ck>nolly v. City of
Boston, 117 MaM., 64; 19 Am. R., 896; Tillock v.
Webb, 66 Me., 100 ; Feital v. Middlesex R. R. Co., 109
Mass., 896 : 12 Am. R., 720; Pate v. Wright, 80 Ind.,
470: McGatrlck v. Wason, 4 Ohio St., 666; State v.
Ooff, 20 Ark., 289 ; Jones v. Andover, 10 Allen, 18.

Acts of charity are those proceedinsr from sense
of moral duty, or kindness and humanity, or for re-
lief or comfort of another, and not for ones own
benefit or pleasure. Doyle v. Lynn, &o., R. R. Co.,
118 Mass., 196 ; 19 Am. R., 481 ; Gorman v. Lowell,
117 Mass., 65; Mcdarv v. Lowell, 44 Vt.. 116 ; Bennett
V. Brooks, 9 Allen, 118; Com. v. Sampson, 97 Mass.,

644

407 : Rex v. Cox. 2 Burr.. 787 ; Rex v. Toumrer, &
Term, 449; Feital v. Middleeex R. R. Co., lOsliasB^
898;12Am. R., 720.

where the statute merely prohibits unneoessary
labor, a reooverv may be had for neoeesary work.
Plaintiff must snow it was neoessary. Whitcomb
v. Oilman, 86 Vt., 297; Sayro v. Wheeler, 32 lova.
669.

A new promise made on Sunday has lieen held
sufficient to remove the bar of Statute of Limits
ations. Lea v. Hopkins, 7 Pa. St., 4B2: Thomaf
v. Hunter, 20 Md.. 406; Avres v. Bane, 89 Iowa. hi*,
cnntra, Bumgardner v. Taylor, 28 Alia.. 687 ; Hay-
dock V. Tracy, 8 Watts ft S., 607. Al8oh«ld.tbat pait
payment on Sunday will not take debt oat of
statute. Clapp v. Hale, 112 Mass., 868 ; 17 Am. K^

X 1X«

Money paid on Sunday and retained, dIaoKiarpvs
the debt. Johnson v. Willis, 7 Gray, 164.

Admission, on Sunday, of apart payment is admti-
sible. Beardsley v. HflJI, 86 ConnM 270; 4 Am. R., Tl

At common law, a sale made on Sunday is not roM:
it Is by statute in Bnsrland and most, if not all, of the
States. Drury v. Defontaine, I Taunt., ISI : Bati-
ford v. Every, 44 Barb., 618; Bloxsome v. WiUiami.
3 B. & C, 232 ; Smith v. Sparrow, 4 Blng., 64; Pate
V. Wriflrht, 80 Ind., 476; Allen v. Gardiner, 7 R. U
22; Cranson v. Goss, 107 Mass., 480 ; Sayre v. Wbeci-
er, 82 Iowa, 660 ; Flnley v. Quirk, 9 Minn., IM.

I860.

Powhatan Stbamboat Co. v. Affomatox R. R Co.

347-257

the rights of the parties were varied hj the fact
that the goods were ianded and deposited on a
Sunday. It is insisted by the defendants that
it does vary their rights, especially as the goods
were destroyed accidentally on the day they
were delivered and received. To support that
theory, they refer, in the first place, to the 16th
and 17th sections of the Code of Virginia. By
the 16th section it is provided, among other
thines, that *' if a free person on a Sabbath day
be &und laboring at any trade or calling, or
employ his apprentices, servants or slaves, in
labor or other business, except in household or
other work of necessity or charity, he shall for-
feit $10 for each offense;" and by the 17th
section it is provided, that no forfeiture shall
be incurred under the preceding section for the
transporting, on Sunday, of the mail or of pas-
sengers and their baggage. Most of the States
have laws forbidding any worldly labor or busi-
ness within their jurisdiction on the Lord's day,
commonly called Sunday, except works of ne-
cessity or charity. Those laws were borrowed
substantially from similar regulations in the
parent country, and in some of the States were
adopted at a very early period in the history of
the Colonial Qovernments. Statutes of the de-
scription mentioned usually contain an express
prohibition against such labor; but we are in-
clined to adopt the early rule upon the subject,
that where the statute inflicts a penalty for do-
ing an act. although the act itself is not express-
ly prohibited, yet to do the act is unlawful,
because it cannot be supposed that the Lei^isla-
ture intended that a penalty should be inflicted
for a lawful act. Aaopting that rule of con-
struction, it must be assumed that all labor " at
any trade or calling on a Sabbath day, except
in household or other work of necessity or
charity," is prohibited in the State of Vir^nia
by the 16th section of the code already cited.
But the defendants do not attempt to maintain
that the contract between the plaintiffs and
the shipper of the goods, for the transportation
of the same from Baltimore to Petersburg, falls
within that implied prohibition, or that the voy-
age of the steamer from Baltimore to Richmond
was illegal. As the evidence shows, the steamer
left Baltimore on Saturday, the day previous to
the fire which consumed the warehouse and the
goods, and it is very properly conceded by the
defendants Chat she might lawfully, under the
circumstances, proceed on her voyage to her
place of destination, notwithstanding the fact
that, in so doing, she had to sail on " a Sabbath
day;" and if so, it clearly follows that she
might stop at any intermediate place on the
route. Transportation of the goods, therefore,
so far as they were carried in the steamer, was
a lawful act, and, in effect, it \& conceded to
have been so by the defendants. Merchandise
trains were not run by the defendants on Sun-
days; and, of course, neither the contract of
the shipper nor the arrangement between these
parties contemplated that the goods would be
carried over the railroad on that day. Ship-
pers made their contracts with the plaintiffs for
the transportation of the goods over the whole
route, from the place of departure to the place
of destination, wholly irrespective of the cir-
cumstances which might afterwards attend the
transfer of the goods from the steamer to the
defendants, and without any knowledge, so far

See 94 How. .

as appears, whether it would be accompllBhed
on a Sunday, or on an ordinary working day.

When the shipper had delivered the goods to
the plaintiffs, the contract between him and
them was completed, and it is self-evident that
it was one to which the Sunday laws of Vir-
ginia had no application whatever. All such
contracts were made by the plaintiffs, but they
were made for the separate benefit of the de-
fendants, as well as themselves, and the ar-
rangement between these parties had respect to
the apportionment of the service to ie per-
formed in carrying out the contract made with
the shipper, and the division of the freight
money to be received for the entire service.
Each party worked for himself, and not for the
other, ana the compensation for that service
was to be derived from the shipper of the goods.
Neither party promised to pay the other any-
thinff, but each was to receive a proportion of
the irei|^ht money equal to the proportion of
the service the arrangement between the parties
required him to perform. Plaintiffs made the
contract with the shippers in their own name,
received the goods at Baltimore, transported
them to City Point, and on the arrival of the
steamer there, landed the goods and deposited
them in. the warehouse of the defendants. On the
other hand, the defendants furnished the ware-
house, opened and closed it on the occasion,
took the custody of the goods until the follow-
ing morning, and then transported them over
the railroad to the place of destination, and de-
livered them to the consignees. After the (roods
were delivered to the consignees, the agent of
the plaintiff collected the entire freight money,
and paid over to the defendants such portion
of it as belonged to them under the arrangement.
Merchants sending goods knew only the plaint-
iffs in the entire transportation ; but as between
these parties, each performed a separate service
for himself, and had no other cuum for com-
pensation than his proportion of freight money.
Had the goods been lost at sea through the neg-
ligence of the plaintiffs, it is clear that the de-
fendants would not have been answerable either
to the shippers or to the plaintiffs, because the
defendants had no interest in the steamer, and
the arrangement between the parties did not
contemplate that they should be responsible
for her navigation. Shippers, however, had a
right to proved against the plaintiffs, although
the loss had occurred while the goods were in
the custody of the defendants, because their
contract with the plaintiffs covered the whole
route; and as between them and the defend-
ants, the latter were but the agents of the
plaintiffs. Accordingly, the dippers recovered
judgment against me pluntiffS) and clearly
the defendants are answerable over, unless it is
shown that the case is one where courts of jus-
tice will not interfere to enforce the contract. It
IB insisted by the plaintiffs that the labor of
landing and depositing the goods was a work
of necessity, within the meaning of the excep-
tion contained in the statute; but in the view
we have taken of the case, it will not be neces-
sary to decide that question at the present time.

Suppose it be admitted that the plaintiffs
violated the Sunday law in landing the goods
and depositing them, and that defendants also
violated the same law in opening and closing
the warehouse on the occasion; still the admis-

686

284r-2a7

BXTFBSICB Ck>UBT OF THX UnITBD 8TATB8.

DiBC. Term,

sion will not benefit the defendants, for the
reason that the cause of action in this case is
not founded upon any executory promise be-
tween the parties, touching either the landing
and depositing of the goods or the opening and
closing of the warehouse, but it is based upon
the non -performance of the duty which arose
after those acts had been performed. If the ac-
tion was one to recover a compensation for the
labor of landing and depositing the goods, or
to recover damages for a refusal to comply with
the agreement to open and close the ware-
house, the rule of law invoked by the defend-
ants would apply. Granting, however, for the
sake of the argument, that those acts of labor
fall within the prohibition of the statute, still
their performance did not have the effect to
transfer the general property in the goods to
the defendants, nor to release or discharge
them from the subsequent obligations, which
devolv^ upon them as common carriers for
hire. Safe custody is as much the duty of the
carrier as due transport and right delivery ; and
although the defendants were- forbidden to
transport the goods over the railroad, or to de-
liver the same on " a Sabbath day," yet they
mi^ht safely and securely keep such as were in
their custody, and it was their duty so to do.
Irrespective of the Sunday Law, the plaintiffs
coula maintain no action against the defend-
ants for the service they had performed in land-
ing and depositing the goods, for the best of
aU reasons, that m performing it they had
worked for themselves, and not for the defend-
ants. Nothing, therefore, can be more certain
til an the fact that the claim in this case is not
founded upon any executory promise necesarily
connected with those supposed illegal acts. On
the contrary, the real claim is grounded on the
obligations which the law imposed on the defend •
ants safely and securely to keep, convey, and
deliver the goods, and upon their subsequent
negligence and carelessness, whereby the goods
were lost. To take care of the goods on " a Sab-
bath day," and safely and securely keep them,
after the goods were received, was a work of
necessity and, therefore, was not unlawful,
even on the theory assumed by the defendants,
and the defendants were not expected to con-
vey or deliver the goods until the following
day. On the theory assumed, the defendants
might have refused to open the warehouse, or
allow the goods to be deposited ; and if they
had done so, no action could have been main-
tained against them for the refusal. But they
elected to do otherwise, and suffered the plaint-
iffs to deposit the goods; and when tue ware-
house was closed, all the supposed the illegal acts
were fully performed.

Whatever contract or arrangement existed
between the parties upon that subject had then
been fully executed.and those who had been em-
ployed in landing and depositing the goods, as
well as the agent of ihe defendants, who had
opened and closed the warehouse, if the acts
were illegal, had respectively become liable to
the penalty which the law inflicts for such a
violation of its mandate. That penalty is a fine
of $10; but there is no authority in any court
to declare the goods forfeited, nor do we per-
ceive any just ground for holding that the
general property in the goods was thereby
changed. Unless the goods be considered as

forfeited, or it be held that the property be-
came vested in the defendants, it is difficult to
see any reason why the plaintiffs ought not to re-
cover in this suit, even admitting Hal the acts
of landing and depositing the goods, and of
opening and closing the warehouse, were with-
in the prohibition of the statute.

Subsequent custody of the goods was cer-
tainly not within that prohibition ; and if not,
then the law imposed the obligation upon the
defendants to keep the goods safely and secure-
ly until the following morning, and afterwards
to transport them over the railroad to the place
of destination, and deliver them to the consign
ees. To assume the contrary would be to u-
mit that a carrier, accepting goods to be trans
ported on an ordinary workkig day, may set
off the fact that the labor of depositing the
goods in his warehouse was performed on " a
Sabbath day," against all the subseouent obli-
gations which the law would otherwise impose
upon him with respect to the goods. Such a rule
of law, if acknowledged by courts of justice^and
carried into effect, would amount to a forfeit-
ure of the goods, so far as the shipper is con-
cerned, as its practical operation would be to
allow the carrier, if he saw fit, voluntarily to
destroy the goods, or to appropriate them to his
own use.

Upon a careful examination of the numer-
ous authorities bearing upon the question, the
better opinion, we think, is that, inasmuch as
the subsequent custody of the goods was not
unlawful, that the obligations of the defend-
ants, under the circumstances of this case, were
not varied by the fact that the goods were de-
posited in their warehouse by their consent on
''a Sabbath day." Great injustice would re^
suit from any different rule, and although the
precise question has seldom or never been pre-
sented for decision, yet we think the analogies
of the law fully sustain the rule here laid down.
For these reasons we are of the opinion that the
instruction given to the jury was erroneous.

The judgment of the dreuit court is, iKenf&rt,
ref)er9ed, and the cause remanded, with direc-
tions to issue a new venire.

THE CLEVELAND INSURANCE COM

PANT, Appt.,

GEORGE REED, JULIET S. REED, JAMES
H. ROGERS AND THE MILWAUKEE
AND MISSISSIPPI RAILROAD COM
PANY.

(See 8. C, 24 How., 2S4>287J

Wisconsin Act of Limitations as to mortffOffe/^rf-
closure — deed of assignee in bankruptcy— efM
of

The Aot of Ltmitationa of Wisoonsln provides tluii
** bills for relief In ease of the existence of a tniM
not oogrnlzable by the courts of common law. and
In all other oases not herein provided for.shail t»
tiled within ten years after the cause thereof ahall
accrue, and not after that time."

Where a mortgairor was declared to be bankmpt,
and his property and riarhts of property were vert-
ed In an assignee appointed bv the court, and the
assignee conveyed by deed, it vested in the put-
chaser such title as the bankrupt had at the timr of

1860.

Glbybland hsm. Co. v. Rebd.

284r-29T

his bankruptcy, which was the date of the decree
declarlnir him a bankrupt.

Where the bill prays that the equity of redemption
be foreclosed, or that an undivided Interest in the
quarter section alleged to be covered by the mort-
ifAge be sold, and the proceeds appropriated towards
paying the debts secured, as neither of these modee
of releaee are cognizable at law, and the only rem-
edy is in equity, it is barred by the limitation named
in the Act.

Arffited Feb. 7, 1861, Decided, Feb. IS, 1861.

APPEAL from the DiRtrict Court of the Unit-
ed States for the District of Wigconnsi.

The present appellants filed their bill in the
court below, to foreclose a certain mortgage.

The district court dismissed the bill, and the
case was brought to this court on appeal:

The case further appears in the opinion of the
court.

Mr. J. R. Doolittle, for appellants:

As to the Statute of Limitations we maintain :

1. By the Statutes of Michigan in force when
the notes became due and the ri^ht to foreclose
accrued, no limitation existed in equity. By
analogy to ejectment, it was 20 years.

See Mich. Laws, 1833, 570, sec. 6.

If the notes as well as the mortgage were
under seal, no period of limitation less than 20
years would attach at law or in equity. It is
true the notes were unsealed, and an action at
law upon them barred by the statute; but bar-
ring the action at law upon the notes, does not
affect the plaintiffs' right to foreclose under the
mortgage.

See Ueper v. Pruyih, 7 Paige, 465; 5 Smedes
& M., 678; 4 Met., 164; 11 Conn.. 160.

Discharge of the personal liability in bank-
ruptcy dia not affect the interest of the mort-
gagee in the land.

Barb. Ch., 613; 0 Mees & W.. 434.

The Bankrupt Act expressly saves the lien of
mortgages. *

See 5 U. S. Stat., p. 442, sec. 2.

Meetrs. James S. Brown, and W. P.
lijrnde, for the appellees:

The suit was barred by the Statute of Limit-
ations.

The mortgage and notes bear date Feb. 10,
1837. The suit was commenced Feb. 12. 1866.
The first note became due Feb. 10, 1838.

The notes, as such, were barred in six years
after they became due. and the onl^ one person-
ally bound, George Reed, was discharged by
«lecree of the court under the Bankrupt Act.
Rogers, the real defendant, had been in posses-
sion 19 years, and all this time he had resided
in Wisconsin and been liable to process. There
was no remedy against him personally; the
remedy by ejectment had been taken away from
the mortgagee by statutes.

Rev. Stat, of Territory, 1839, 257, par. 53;
Rev. Stat, of State. 1849, p. 569, sec. 58; see.
also.Rev. Stat, of 1887,p. 263,par.40; of 1839,
p. 263, par. 37 39; Rev. Stat, of 1849, p. 644,
sees. 24-27; also. Parker v. Kane, 4 Wis., 1;
FuUerUm v. Spring, 3 Wis., 667.

Mr. Justice Catron delivered the opinion of
the court:

The bill seeks to enforce a lien secured b^
mortgage on twenty acres of land, in what is
denominated Finch's addition to Milwaukee.
The mortgage debt became due in February,
1839. It is difficult to say, that were the bill

See 24 How.

standing on demurrer, that a sufficient descrip-
tion of the land claimed as bound for the debt
could be established to justify an affirmative
decree. But the view we take of the case ren-
ders this question immaterial.

In 1837, OeoT^'Q Reed executed the mortgage
to the Clevelana Insurance Company for $22,-
000, including the greater portion of a quarter
section of land, part of which was covered by
previous mortgages to others. These were ac-
quired and foreclosed, and the title vested in
James FT. Rogers, the pun;ha8er. and only ma-
terial respondent to this suit. He took possession
of the quarter section in 1838, claiming it as his
own under previous mortgages of which he was
assignee, and which he foreclosed, and became
the purchaser of the equitv of redemption, and
he also claimed title undler five tax sales and
deeds founded on them.

In his answer, Rogers relies on the Act of
Limitations of Wisconsin, passed in 1839. which
provides that *' bills for renef in case of the ex-
istence of a trust not cognizable by the courts
of common law, and in all other cases not here-
in provided for, shall be filed within ten years-
after the cause thereof shall accrue, and not af-
ter that time."

To establish the fact of adverse possession,
and to negative the conclusion that Rogers did
not recognize the trust, the parties agre^ ' ' that
for the purpose of bringing the above entitled
suit to a hearing at the present term, it shall and
may be taken as true and proved for all the
purposes of this case, that the defendant. Rog-
ers, has been in actual and continual possession
and occupancy of the southeast quarter section
37. township 7, range 22 east, described in the
bill of complaint in this suit, since sometime in
the year 1838, and up to this time; and during^
all that time has openly controlled the same, ana
improved some portion of the premises."

To onerate Rogers with the obligation of a
mortgagor and trustee, the complainant intro-
duced a record from the bankrupt court held in
Wisconsin, showing the proceedings against
(George Reed as a voluntary bankrupt under the
Act of Congress of 1841. The proceeding was
admitted on the hearing to be in all respects
regular. On the 23d of July. 1842, Reed waa
declared to be a bankrupt, and his property and
rights of property were vested in an assignee
appointed by the court. He advertised Reed's
interest in the propertv in controversy to be sold,
and on the 3d day of May, 1843,it was sold, and
purchased by Rogers, he being the best bidder,
ioT the sum of $6, who took a regular deed for
the same on the 6th day of July. 1846, in con-
formity to the 15th section of the Bankrupt Law.

The obiect of introducing this evidence by
the complainant was, to avoid the operation of
the Act of Limitations, by showing Uiat, by his
purchase, Rogers stood on the same footing of
mortgagor that George Reed had stood before
his bankruptcy, and that the assignee's deed to
Rogers was not ten years old when this suit was
brought.

The assi^ee came in as trustee by force of
the decree declaring Reed a bankrupt; he held
the land as Reed had done, and by the deed
Rogers assumed the same position, because, by
the proviso to the 2d sec. of the Bankrupt Law,
the lien secured by the mortgage was excepted.
The main question as reganu the effect of this

687

80JJ-807

SXJTKBMK Ck>17BT OV THK UNTTBD BTATBS.

Dec Tkrm,

deed is, to what time does the title acquired bv
Rogers relate. It vested in him by its terms such
title as the bankrupt had at the time of his
bankruptcy, which was the date of the decree
declaring him a bankrupt. To this effect is the
15th section of the Act.

This suit was brought in 1856, and the order
declaring Reed a bankrupt was made in 1842,
so that Rogers held the relation of mortgagor to
the complunant more than ten years before this
suit was brought.

But we deem this proceeding in bankruptcy
altogether immaterial. Rogers claimed to own
the quarter section in fee, and held it in actual
adverse possession in 1889, when the ten years'
Act of Limitations was passed. The Act then
began to run, and ran on so as to complete the
bar in 1849.

We do not doubt that the Act applies to this
suit. The bill prays that the equity of redemption
be foreclosed, or (hat the undivided interest, to
' the extent of twenty acres in the quarter section
alleged to be covered by the mortgage, be sold,
and the proceeds appropriated towards paying
the debts secured. As neither of these modes or
relief are co^izable at law, and the only rem-
edy is in equity, it is manifestly barred by the
terms of the Act.

By a previous provision of the Act of 1889,
(sec. 87), where there are concurrent remedies
at law and in equity, the remedy in equity is
barred in the same time that the remedy at law
is barred; and what we mean to say is, that the
remedies demanded to be enforced by the bill
have no corresponding remedy at law, and
therefore fall within the 40th sec. of the Act.

As respects the other defendants to the bill,
no relief can be had against them. By his pur-
chase of the bankrupt's title, Rogers took the
equity of redemption, and cut off all claims to
the land the defendants had, assuming the state-
ments in the bill to be true.

We forbear to express any opinion on the
defense relied on by Rogers in his answer,
namely: that he had purchased and had deeds
for the said quarter section from several tax col-
lectors, which he alleges are valid : and if not
valid, that they are confirmed by adverse pos-
session and the operation of the three yeare' Act
of Limitations.

It is ordered that the decree of the drcuU court,
diemimng the bill, be affirmed.

WM. WIGGINS, JAMES M. JONES, and

JOHN B. WELLER, CompU.,

fj.

JOHNB. GRAY and KN0WLE8 TAYLOR.

(See 8. C, 24 How., 803-307.)

Question of pracHee in diecreUon of inferior
court, not reviewable on certificate of division,
or appeal.

The Act of 1808, oh. 32, which authorizeB a certifi-
cate of division, evidently did not intend to flrlve
this court jurisdiction, in that mode of prooeedlnfir,

NOTB.— Ca«68 certfJUd on division of circuit court.
JuriMiictifm of U. S. Supreme Court in. On what
division slumld be. See note to Webster v. Cooper,
61 U. 8. (10 How.), 64.

Error. The SuprevM Court uHU not review the die-
eretvmary action of the amrt below. See note to
Barron v. Hill, 64 U. 8. (18 How.), 64.

^88

of any question of common law or equity, that
would not be open to revision here upon writ of
error or appeal.

It has repeatedly been held, that a decision of
the inferior court, upon a question dependinir upen
the exercise of a sound Judicial diacretion In m
matter of practice as to the mere form of prooeed-
injT. is not open to revision in this court.

This discretion is a matter of practloe resting ex>
olusivelv with the inferior court, and no appeal
will lie from its decision, made in the exeretee of
this discretionary power.

This court will not assume Jurtodiotion and exer-
cise appellate powers over such questions when
they come before it on a certificate of division.

The Act of 1802 contemplates a suit In oonn, in
which plaintlif and defendant have both appeaared;
but where there is no party but the one In whose
beha!f the motion is made, and no defendant it
named, and no process prayed for, the k^ialitv of
this proceeding cannot be certified to this court for
its opinion. .

Argued Feb. 6, 1861, Decided Feb. IS, 1861.

N a certificate of division of opinion be-
tween the Judges of the Circuit Court of
the United States fbr the Northern District of
California.

The case is stated by the court.

Mesers. James A. Bay&rd and Jctlm A.
Collier* for complainants.

Messrs. Caleb Cushins. B. J. "Walk-
er» Louis Janin, Robert J. Brent and
Henry May* for defendants.

Mr. Chief Justice Taney delivered the opin-
ion of the court:

This case comes before the court upon a oer
tiflcate of division of opinion between the
Judc^es of the Circuit Court for the District of
Caliromia, sitting as a court of equity.

In stating the facts upon which the question
certified arose, the court gives a history of the
case, and it appears that a bill was filed in a
state court of Cal^omia, and was afterwards
removed to the District Court of the United
States, by order of the court, pursuant to an
agreement made by the counsel for the respect-
ive parties, that before it was transferred from
the state court, one of the complainants and
one of the defendants died; and Uie represents
tives of neither of them were afterwards made
parties, either in the state court before the re
moval, or the District Court of the United
States, after the case was transferred to thai
court. And in this condition of the case, and
without these parties, a final decree was ren-
dered in the last mentioned court. These pro^
ceedings were transferred to the Circuit Coon
of the United States, under the Act of (>>ngTe»
of April 80. 1866 (11 Stat, at L., 6); and a biD
was afterwards filed in that court to set aside
and vacate the final decree which had been
rendered as above mentioned ; but in that pro-
ceeding the circuit court held that it had not
Jurisdiction, because the parties made defend
ants resided in New YorK, where the process
of the court could not lawfully be served upon
them. The dates of these several proceedings
in the different courts, and the motions m
agreements of counsel, are particularly set f(»th
in the statement; but they are not material to
the decision of this court, and need not, tbere-
fore, be repeated here.

The circuit court further certify, thai after
all these proceedings were had. and the bill
filed against the citizens of New York dismissed,
a motion was made '* to vacate the final deoer

1860.

Mariin v. TnoMAP.

318h817

rendered, and to remand the case to the state
court, in which it originated; and that the mo-
tion was predicated on the ground that the whole
proceedings, from the time the case was trans
ferred thence, including the decree, were null
and void, and not merely voidable, and, there-
fore, might be set aside on motion."

Upon this motion the judges divided in opin-
ion, as they certify, upon the following ques-
tion: "whether, under the circumstances de-
tailed, this court (the circuit court) has author-
ity to vacate summarily, on motion, the decree
of the District Court of the United States for
Northern District of California, and remand
the case to the third Judicial district uf the
State."

It will be observed that the grounds, upon
which the decree of the district court is alleged
to be void or voidable, are not stated ; nor the
questions which arose in the state court, or the
courts of United States; nor does it appear what
errors are supposed to have been committed,
which it is proposed to bring for revision before
the circuit court, and to correct by a summary
proceeding on this motion.

The only question certified by the circuit
court is, whether, under the circumstances of
the case, as detailed in the statement, it could
proceed summarily on motion to vacate and
declare void the decree. The inquiry obviously
relates altogether to the practice of the court
as a court of equity. And this question often
depends upon the sound judicial discretion of
the court, regulated by the rules prescribed by
this court, and the general principles and es-
tablished usages which govern proceedings in
a court of chancery; and whether it will pro-
ceed in a summary manner on motion, or re-
quire plenarv proceedings by bill and answer,
must depend upon the particular circumstances
of the case before it, and the object sought to
be attained.

The Act of April 29th. 1802, ch. 32 (2 Stat, at
L. , 156). which authorizes the certificate of divis-
ion, evidently did not intend to give this court
jurisdiction, in that mode of proceeding, upon
any ouestion of common law or equity, that
i^oald not be open to revision here upon writ of
error or appeal. It was so decided m Davis v.
Bradsn, 10 Pet., 288, and in Packer v. Mtxm,
10 Pet., 410. And it has repeatedly beA held
that the decision of the inferior court, upon a
question depending upon the exercise of a
sound judicial discretion in a matter of practice
as to the mere form of proceeding, is not open
to revision in this court.

If the judges had united in refusing the sum-
mary proceedings on motion, it is very clear
that the decision could not have been revised
in this court upon appeal, although this tribunal
might be of opinion that the relief sought might
have been legitimately granted in that mode of
proceeding; for this discretion in a matter of
practice, resting exclusively with the inferior
court, it has the right to determine for itself
whether it will proceed in a summary way, or
refuse to do so wh<%never it thinks the purposes
of justice will be better accomplished in a plen-
ary proceeding by bill and answer; and conse-
quently no appeal will lie from its decision,
made in the exercise of this discretionary power.
In the case before us, by the division of opinion
between the judges, the motion was as legally

8ee 24 How. U. S., Book 16.

and effectually refused as if both had concurred
in the refusal. And as the decision in the lat-
ter case could not have been reviewed here
upon appeal, for want of appellate jurisdiction
over such questions, we should hardly be jus-
tified in assuming jurisdiction, and exercising
appellate powers over the same questions when
they come before us on a certificate of division.

Besides, the Act of April 29th, 1802 (2 Stat,
at L., 156), obviously contemplates a suit in
court, in which plaintiff and defendant have
both appeared, for it directs the point to be
certified at the request of either partv. But
here there is no party but the one in whose be-
half the motion is made. No defendant is
named, and no process prayed for. And if,
in this stage of the case, the legality of this
proceeding can be certified to this court for its
opinion, the same thing may be done at the
commencement of any other equity proceeding
and this court called on to decide in advance,
before any process is issued or any party
brought into court, whether a motion, or an
original bill, or any other of the many descrip-
tion of bills known in equity practice, was the
proper and appropriate remedy in the case
which a party was about to brmg before the
circuit court. No one will suppose that such
a practice was intended to be established by the
Act of 1802.

77i6 court order and adjudge thai this opinion
be certified to the circuit court, and thcU the
cause be remanded.

JOHN T. MARTIN, ANDREW PROUD
PIT. AND JOHN KEEFE, Plffs. in Er.,

WM. H.THOMAS AND ROBERT A. BAKER,

Administrators of MAJOR J. THOMAS.

Deceased, use of GEORGE T. ROGERS.

(See S. C, 84 How.. 815-317.)

Surety — discharged by erasure ofprindpaVs name
from bond — his licUnUty not to be extended by
implication — any change, in contract, even if
beneficial, discharges him.

Bond of sureties In replevin held void,becau8e aft-
er the same was executed by defendants as suretiee*
their prindpal.witbout their knowledire or consent,
and with the consent of the marshal, erased his
name from the bond.

The liability of the surety is not to be extended,
by implication, beyond the terms of his contract.
To the extent, and In the mannerf and under the
circumstances pointed out in the obll^ration, he is
bound, and no further.

It is not sufficient that he may sustain no injury
by a change in the contract, or that it may be for
his k>eneQt. He has a right to stand upon the
very terms of his contract ; and if he does not as-
sent to any variation of it, and an alteration of it
is made, it is fatal.

After the execution of the bond by the defend-
ants, to be delivered to the marshal, it was refused
and disagreed to by him, and it thereby became
void. «A.ny subsequent alteration would require a
new deed or positive assent to the same, to make
it valid against the defendants.

Argued Feb. 4, 1861. Decided Feb. 18. 1861.

IN ERROR to the District Court of the Unit-
ed States for the District of Wisconsin!
This was an action on a bond commenced by
the present defendant in error in the court

41 689

32:^-^8

BUPBAJCS OOUBT 09 THB UrITBD HVATHfi.

DbC. TXRM,

below. Judgment was rendered there for the
plaintiff, and the defendants brought the case
to tins court by writ of error.
The case is further stated by the court.

Mewrs, J. R. Doolittle and T. Ewini^.

for plaintiffs in error.

Messrs. J. C. Hopkins and Reverdy
Johnson, for defendants in error:

The alterations of the bond are immaterial,
and did not affect its legality.

15 Johns., 293; 1 Wend . 659; 10 Conn.. 192
18 Pick., 172; 5 Mass., 538; 2 Barb. Ch., 119
16 N. Y., 439; 8 Corns., 188; 1 Greenl. Me.
Hale V. JRuss. 1 Code Rep., 60.

Mr, Jtutice McLean delivered the opinion
of the court.

This is a writ of error to the District Court
of the United Slates for the District of Wis-
consin :

The action was replevin ; the pleadings be-
ing filed, a jury was called, who rendered a
verdict in damages for $9,708.96, with costs.

In the course of the trial a bill of exceptions
was filed, on which the questions of law were
raised. Beit remembered, that at the trial of
the above entitled action, the plaintiff produced
an instniroent in writing, in the words and fig-
ures, and with interlineations and erasures fol-
lowing,, to wit:

Know all men by these presents, that we and
John T. Martin, and John Keefe, and Andrew
Proudfit, are held and firmly bound unto Major
J. Thomas, Marshal of the United States for
the Wisconsin District, in the sum of $20,000,
to be paid. &c.

Whereas the defendants have required the re-
turn of property replevied by the marshal, at
the suit of George T. Rogers v. Henry M, Bem-
iTigton and John T. Martin, Jr.; now, the con-
dition of this obligation is such, that if the said
defendants in saia suit shall deliver to the Mar-
shal said property, if such delivery be ad-
judged, and shall pay to him such sum as mav
for any cause be recovered against the defena-
ants, then this obligation to be void.

1. The bond upon which judgment was recov-
ered was void, as against the defendants, be-
cause, after the same was executed by them as
sureties. Remington, their principal, without
their knowledge on consent, and with the con-
sent of the Marshal, erased his name from the
bond.

In Miller v. Stetoart, 9 Wheat, 702. Mr, Jus-
tice Story said, nothing can be clearer, both
upon principle and authority, than the doctrine
that the liability of a surety is not to be ex-
tended, by implication, beyond the terms of
his contract. To the extent and in the man-
ner and under the circumstances pointed out
in the obligation, he is bound, and no further.
It is not sufficient that he may sustain no in-
jury by a change in the contract, or that it may
be for his benefit. He has a right to stand
upon the very \Mcm% of his contract; and if he
does not assent to anv variation of it, and an
alteration of it is made, it is fatal.

Uuntv. Adams, 6 Mass., 521.

2. , After the execution of the bond by the
defendants, to be delivered to the Marshal, it
was refuKed and disagreed to by him, and it
thereby became void. Any subsequent allera-

tfHO

tion would require a new deed or poatiTe ai-
sent to the same, to make it valid against the
defendants.

Shep. Touch., 70, 894.

The judgment is reversed,

ated-60 U. 8. (2 WaU.), 238.

JOHN M. FACKLER. Appt.,

«.

JOHN R. FORD bt ai*.

(See S. C, 24 How., 322-838.)

Spedfle performance — contract not toid—^ombi-
nations to prevent bidding— -pubUe mUe of lands
— frauds at.

In a bin for speoiflo performanoe of a oontrtct.
the contract held not void under the 4tb mod 5th
neotiODS of the Act of Congress of SIst of Mmrch,
1880. entitled ** An Act for the relief of purcbuen
of public hinds, and for tbe suppreeslon of fnudu-
lent practiooe at tbe public safes of tbe lands of
tbe United States."

Tbe 4tb section is Intended to protect tiie fror-
emment and punish all persons wbo enter into
combinations or conspiracies to prevent otber« frois
blddinjsr at tbe sales, pitber by ag^reement not to do
so. or by intimidation, threats or violence.

There is notbinjr to be found on tbe face of this
contract which can be construed as an agreement
not to bid. or to binder, intimidate, or prevent
others from doing so.

Tbe 5th section is intended for the protection of
those «rbo propose to purchase lands at tbe public
sales from tbe extortions of those wbo have formed
tbe combinations made penal by tbe 4th section.

It Is no part of tbe policy of this section to eo>
counure frauds, by releasing the fraudulent party
from tbe obligation of his contract.

^rgued Feb. 1, 1861, Decided Feb, IS, mi

APPEAL from the Supreme Cooit of tbe
State of Kansas.

John R. Ford and others, the present appel-
lees, filed a bill in the First Judicial District of
Kansas, against the appellant, one Madtstm
Mills, to enforce the spedfip execution of a con-
tract, an abstract of which appears in the opin-
ion of the court.

The district court rendered a decree in farnr
of the complainants. The defendant appealed
to the Supreme Court of the Terrilory.by which
court the decree of the district court was af-
firmed. From this decree of affirmance the
present appeal is prosecuted,

Messrs, Badger and Carlisle^f or the appel-
lant:

It id insisted by the appellant:

1st. That this agreement was in riolation of
the laws of the United States and their poHcr
in respect to the sale of the lands. These DeU
ware lands were ceded to the United States br
the Treaty of May 6, 1854.

10 Stat. atL., 1048.

These lands were agreed to be sold, and were
sold, in every respect as other lands of the
United States, although they were held in trost
for the Indians, and the beneficial interest wis
not in the United States as the legal title was.

We insist that the contract on which this biU
is fll^ is in conflict with the provisions of se(
tions 4 and 5, Act March 81, 1880 (4 Stat., t»i\
and tends immediately to defeat or obstruct tk
purpose of Congress. That purpose in both
sections is to secure free and open contest at tb?

1860.

Facklxb y. FoBD.

821^^83

salee of the public lands by auction. The 4th
section prohibits any contract or agreement to
induce or prevent anyone from bidding at such
sales. Here the plain result and effect of this
contract was to prevent the appellees from bid-
ding for land which the contract shows that
they desired to possess; and this was directly
within the scope of the agreement and purpose
of the parties. And the agreement to pay the
appellant $10,000 beyond the price to be paid to
the United Slates, snowed that the land to be
bought was known to be worth many times that
price. It was, therefore, a plain, direct pur-
pose of the contract to prevent the land from
bringing a fair value by stifling a contest and
excluding the only party besides the appellant,
desiring the land, from bidding. And further,
this understanding was so much a part of the con-
tract that the appellees could not have bid with-
out violating the agreement on their part and
discharging the appellant from his part thereof.

The same section makes it an offense by any
' * combination or unfair management" to hinder
or prevent, or attempt to hmder or prevent,
any person from bidding; and though this
primarily refers to the hindering of persons from
bidding who are not parties to the combination
or management, yet in this case, upon this
contract, the combination or management with
each other to procure the land at a less price, by
preventing one of the parties, is seen to be within
the mischief which the statute was intended to
prevent.

The 5th section prohibits any and every con-
tract or secret understanding made by one or
more persons with another who proposes to
purchase any such lands, to pay or give to such
purchaser for such land a sum of money or
article of property over and '* above the price
at which the land may or shall be bid off, and
declares every such contract, &c., and "every
bond, obligation, or writing of any kind what-
soever, founded upon or growing out of the
same," to be utterly null and void, and author-
izes any party to such contract, &c., who may
pay any such sum of money, &c., to sue for
and recover back the same. The parties came
to an understanding for what the statute pro-
hibited, and then entered into a written con-
tract, which is void. The whole scope and
intent of the contract is in violation of the spirit
of the law, which is to secure a fair competition
at the public sales. This is sought by both
sections, and the contract in our case embraces
both the modes of evading the enactment and
accomplishing the mischief against which the
statute was directed.

The courts act upon the principle of giving
no relief to parties to an unlawful contract.

This case, we submit, falls within this prin-
ciple.

To establish this, we call the attention of the
court to a few out of the many authorities which
support it.

jtenTUtt V. Chambers, 14 How., 88; Hannay
V, Eve, 3 Cranch, 242; Armstrong v. ToUr, 11
Wheat., 258; Oraig v. Missouri, 4 Pet., 410.

Thf*8e decisions include our case, within their
ruling, and decide it.

Tlie contract was a bargain to prevent one
party from bidding, and a combination to that
effect, upon a mutual understanding that the
land would be bought for greatly less than its

See 24 How.

true value, as known to the parties, for their
profit and to the injury of the United States, or
those for whom the United States sold and,
therefore, is within the 4th section of the Act.
Then, under the 5th section, it was an agree-
ment on the part of the appellants to convey,
upon the payment by the other party of a sum
of money expressly forbidden to be promised.
Our defense rests not on any merits of our
own, but on this : that the parties were engai^ed
in an unlawful purpose, unlawful as in violation
of a public law, and unlawful as in violation of
the policy of Congress, in selling the public
lands at auction, and especially in this sale for
the benefit of the Indians, in which the gov-
ernment was bound by the highest obligations
of honor and integrity to promote a sale at the
highest price which competition of bidders
might produce, and therefore, whatever the
demerits of the appellants may be, the appellees
have no right to assistance.

Mr, Justice Grier delivered the opinion of
the court:

Ford and others are complainants in a bill
for specific performance of a contract made by
them with Fackler «& Mills.

The bill charges, that on and before the 22d
of November, 18«i6, Fackler claimed, as actual
settler thereon, a fractional section of land con-
taining sixty acres, and Mills the east half of a
quarter section, containing eighty acres, in
Leavenworth County. Kansas Territory, being
parts of the land purchased by the (government
of the United States of the Delaware Indians.

These lands had been appraised at $8 an
acre, and advertised for sale pursuant to law.
That prior to that date. Fackler & Mills sur-
veyed and laid off said tracts of land so claimed
and held by them, into blocks, lots, public

f rounds, streets, alleys, &c., for a town to be
nown as "Fackler's addition" to Leaven-
worth City; that they made a plat of it and
divided the whole into eighty shares of six lots
each, executing certificates, on the back of each
of which they indorsed the lots assigned; that
they also represented themselves to be owners
of a ferry right from the south part of Fack-
ler's addition to and including a landing on the
opposite side of the Missouri Kiver, ana a lease
of a fractional section in Platte County, in
Missouri, containing thirty- four acres; that
Fackler & Mills were anxious to sell and dis-
pose of the undivided half of the ferry, together
with an equal and divided half in lots of the
140 acres, being forty shares, containing in the
aggregate 240 lots: that on the 22d of Novem-
ber, 1856, they entered into covenant, under
seal, to sell to complainant 40 shares, being one
half of 140 acres in Fackler's addition to Leav-
enworth City, which shares were divided and
agreed to be the following lots, viz.: 23, &c.,
&c., &c. ; that the complainants have paid the
sum of $10,000 as a consideration, and agreed
to furnish one half the purchase money to be
paid at the Delaware sales; that Fackler &
Mills agreed to make a quitclaim deed to the
vendees when they have obtained a title for the
lands, and as part consideration of said pay-
ment, a deed for the undivided half of the ferry
right and lease of grounds on the Missouri side
should also be executed.
At the bottom of this agreement, of the same

691

822-888

SUPBBXB Ck)nBT OF THB UnTTKD StATBS.

Dec. Tbbic

date, is a receipt by Fackler for $560, "being
one half of tlie appraised value of the lands de-
scribed in the within contract, which we are to
use in paying for the said lands at Delaware
sales, held at Leavenworth this day."

The bill further charges, that Fackler &
Mills did obtain a title for said land, and now
refuse to convey to complainant either the land
or the moiety of the ferry right, and prays for
a decree for specific performance.

The respondents demurred to this bill, and
afterwards withdrew their demurrer and filed
an answer. The answer admits the contract
and receipt of the money, and purchase of the
lands, but charges that the Government of the
United States was trustee of the Delaware In-
dians, of these lands, and that the act of the
officers of the government in fixing the value
of the land, and in restricting the purchase
thereof to settlers thereon, to such valuation,
was a "fraud on the Indians," and that the
plaintiffs were cognizant of such fraud; that
the lands were appraised far below their true
value; that respondents have not put the plat
of their town on record; that, therefore,the de-
scription of the land is so vague and uncertain
that a court cannot decree a specific perform-
ance; that a statute of Kansas requires all town
plats to be recorded ; that besides the money
paid to the respondents, there was a parol rep-
resentation made by complainants; that by
their capital and influence they had built up
other towns in the West, and would do the
same with this if they could get a large interest
at low rates; and that not having performed
this part of their contract, respondent refused
to make them a title ; and lastly, the answer con-
cludes with the following defense and apology:

" And this defendant says, that inasmuch as
the plaintiffs have endeavored to avail them-
selves of a supposed technical legal advantage
to aid them in a non-compliance with their
contract, and have failed to comply with the
same, defendant in turn claims that he is Justi-
fied in charging, and does charge and insist,
that said contract was made before the relin-
quishment of the title of the Delaware Indians
to said land, and in violation of the said Treaty
with said Indians; and that said agreement,
settlement, survey and platte of said land were
each in violation thereof, and in violation of
the laws of the United States, and in violation
of the statutes of the Territory of Kansas, and
in violation of the public policy of the United
States, and void."

Afterwards, on motion of complainants, the
court ordered to be expunged from the answer
each one of the charges, a summary of which
we have Just given. This left in the answer
nothin^c but an admission of the charges in
complainant*s bill.

A bill of exceptions (according to the prac-
tice of that court) was taken to this order of the
court, and the case was then heard on the bill,
answer and exhibits, and a decree was entered
for complainants, which was confirmed on
appeal to the Supreme Court of the Territorv.

The allegation that the United States de-
frauded the Indians, and that the lands were
sold below their value and, consequentlv, that
Fackler, having got his title by a fraud, was
bound to commit the further fraud of keeping
the complainants' money and the land too,

692

might well have been expunged from the an-
swer as ** impertinent" in every sense of the
term. The plea of vagueness of description in
the contract, and that defendant had not
put his town plat on record before he got a
title from the United States, partake lai^y of
the same quality.

The plea that plaintiffs had not used their
infiuence to bring emi|?rants and make im-
provements in the intended addition to the
city, and thus add value to the land which the
respondent would not convey to them, was
surely irrelevant, if not impertinent; and
finally, the sweeping charge in the conclusion
of the answer, that the whole transaction was
in violation of the Treaty witlithe Indians, and
in violation of the laws of the United States,
and of the statutes of Kansas, does not indi-
cate whether respondent intends to charge the
complainants with fraud, or rely upon hii own.
It alleges no facts, and is followed by no proof.
It is m fact a return to the demurrer to the
bill, and as such has been argued in this court.

The question to be decided is, whether there
is anything on the face of this contract which
shows it to be void by any law of the United
States. How the Treaty or the laws of Kansas
can affect it has not been shown, and need not be
further noticed. It was time enough to record
the plat of the intended city when the respond-
ents had obtained a title, and as it concerned
the complainants, they could not be in default
until they got a title and were offering their
lots for sale. The enumeration of the lots in
the contract was a mode of specifying how the
land should be divided, and the plat of the in-
tended town could be referred to for description
and certainty Just as any other private surrey
or draft.

The laws of the United States, which it is
alleged invalidate thin contract, are the 4th and
5th sections of the Act of Congress of 31st of
March, 1880 (4 Stat, at L., 390), entitled '* An
Act for the relief of purchasers of public lands,
and for the suppression of fraudulent practices
at the public sales of the lands of the United
States.^' These sections are in these words:

"Sec. 4. That if any person or persons shall,
before or at the time of the public sale of any
lands of the United States, bargain, contract or
agree, or attempt to bargain, contract, or agree,
with any other person or persons, that the la^
named person or persons shall not bid upon or
purchase the land so offered for sale, or any par-
cel thereof, or shall by intimidation, combina-
tion or unfair management, hinder or prevent,
or attempt to hinder or prevent, any person or
persons from bidding upon or purchasing any
tract or tracts of land so offered for sale, evenr
such offender, his, her or their aidere and abet-
tors, being thereof duly convicted, shall, for
every such offense, be fined, not exceeding one
thousand dollars, or imprisoned not excewlini;
two years, or both, in the discretion of the court.

' ' Sec. 5. That if any person or persona shall,
before or at the time of the public sale of any of
the lands of the United States, enter into any con
tract, bargain, agreement or secret understand
ing with any other person or persons, proposing
to purchase such land, or pay or give such pur-
chasers for such land a sum of money, or other
article of property, over and above the prioe at
which the land may or shall be bid off by soch

«^ U.S.

1860.

Tate v. Carkbt.

857-382

purchasers, every such contract, bargain, agree-
ment or secret understanding, and every b^nd,
obligation or writing of any kind whatsoever,
founded upon or growing out of the same, shiUl
be utterly null and void. And any person or
persons being a party to such contract, bargain,
agreement or secret under8tanding,who shall or
may pay to such purchasers any sum of money
or other article oi property, as aforesaid, over
and above the purchase money of such land,
may sue for and recover such excess from such
purchasers in any court having jurisdiction of
the same. And if the party aggrieved have no
legal evidence of such contract, bargain, agree-
ment or secret understanding, or of the payment
of the excess aforesaid, he may, by bill in equity,
compel such purchaser to make discovery there-
of ; and if in such case the complainant shall
ask for relief, the court in which the bill is pend-
ing may proceed to final decree between the
parties to the same: Provided, every such suit,
either in law or equity, shall be commenced
within six years next after the sale of said land
by the United States."

The 4th section is intended to protect the
^vernment and punish all persons who enter
into combinations or conspiracies to prevent
others from bidding at the sales, either by agree-
ment not to do so, or by intimidation, threats
or violence.

There is nothing to be found on the face of
this contract which can be construed as an agree-
ment not to bid, or to hinder, intimidate or pre-
vent others from doing so.

The 5th section is evidently intended for the
protection of those who propose to |hirchase
lands at the public sales from the extortions
of those who have formed the combinations
made penal by the 5th section. The complain-
ants stand in the character of the "party ag-
grieved " by the fraud, if there be any in the
case. If Fackler had made his conveyance ac
cording to his contract, and the complainants
were now seeking to recover back the $10,000
paid to him, this section of the statute might
have been invoked by them, on proof of such
a combination, and that Fackler was a party to
it, as he now acknowledges. But it is no part
of the policy of this section to encourage frauds
by releasing the fraudulent party from the obli-
gation of his contract. The allegation of the
acswer that the contract was in violation of the
Treaty with the Indians,and of the Acts of Con-
gress, may be a confession of the respondent's
own fraud, but it can give no right to cdnmiit
another.

The answer filed in this case is by Fackler
alone; the record shows the agreement of coun-
sel that the bill be dismissed as to Mills.

The court below were, therefore, right in de-
creeing a specific performance of the contract,
but erml in that part of the decree which orders
a conveyance of the undivided moiety of the 140
acres. The contract is for a specified and di-
vided moiety of the land, and an undivided
moiety of the ferry privilege; and that portion
of tfu decree.whieh orders a eonf>eyance according
to the contract, is affirmed, wUh costs, and record
remitted, toith instructions to the court below to re-
form their decree in accordance with this opinion.

AlTir— McCahon, 81.

Clt«d— Woolw., 864 ; 6 Kan., 161 ; 10 Minn., 168; 81
CaL, 467.

See 24 How.

CHARLES TATE kt al., Plffs. in Er„

JOHN G. CARNEY et al.

(See S. C, 24 How., 867-982.)

Decision of land office between claimants not bind-
ing on courts — land office cannot reverse its prior
decision followed by possession and claims of
bona fide purchasers.

The decision of the register and receiver of the
land oiBoe, io favor of one of two claimanta of gov-
ernment land, is not conclusive of the controversy.

The reflrlster and receiver are empowered to de-
cide on toe true location of gran ts or confirmations,
but not on the legal and often complicated ques-
tions of title.

The decisions of the register and receiver do not
preclude a legal Investigation and decision, by the
proper judicial tribunals,between the parties to in-
terfering claims.

Th<»y had no authority in this case to overthrow
the decision of a prior register and receiver, made
more than twenty years before, and which had been
followed by possession, and as to which there had
intervened the claims of bona fide purchasers.

Argued Jan. S, 1861, Decided Feb. 18, 1861.

IN ERROR to the Supreme Court of the State
of Louisiana holding sessions for the Eastern
District of Louisiana. - «

Carney, the defendants in error, instituted
suit in the Eighth Judicial District of Louisiana
against Charles Tate, Jr., claiming the tract of
land in controversy.

Tate disclaimed title otherwise than an one
of the heirs of Nancy Tate, whose succession
was then under administration. The heirs of
Nancy Tate intervened and claimed title by in-
heritance from their ancestor, the said Nancy.
The issue was joined on this intervention by the
original plaintiff . Both parties claimed title un-
der the United States.

On the trial in the district court, judgment
was entered in favor of the heirs of Nancv
Tate. On appeal to the Supreme Court of Loui-
siana, the judgment of the lower court was re-
versed.

The heirs of Nancy Tate brought writ of er-
ror from this judgment of the Supreme Court
of Louisiana, rejecting their title, claimed under
the laws of the United States.

The case further appears in the opinion of the
court.

Messrs. J. P. Bex^amin and Robt. 611-
letf for plidn tiffs in error:

I. The decision of the register and receiver,
ascertaining the location of the land confirmed
to Nancy Tate, is final and conclusive, and the
courts of justice cannot reverse that.

The Supreme Court of Louisiana erred in so
doing.

Cousin V. Blanc, 60 U. S. (19 How.), 202.

IL But if that decision could be reversed,
the result would be the same, the decision being
clearly right.

Mr. Miles Taylor* for defendant, in error.

Mr. Justice Campbell delivered the opinion
of the court:

This cause comes before this court by a writ
of error to the Supreme Court of the State of
Louisiana, under the 25th section of the Judi-
ciary Act of September, 1789. The defendant
in error (Carney) commenced a suit in the Dis-
trict Court of the Eighth Judicial District of

698

357-862

BuPBKiaB CouBT or thb Ukitsd Statbb.

DbcTsrm.

Louisiana, in which he asserted that he had
purchased, in the year 1844, at the probate sale
of the succession of Sarah Cohern, deceased,
five hundred and sixty acres of land on Cool
Creek, in that district, and that Charles Tate
had disturbed his possession and denied this ti-
tle. He summoned C^harles Tate to exhibit his
claim to the land, and required the representa-
tives of Sarah Cohern, deceased, to maintain
the title they had warranted to him, or to re-
fund the purchasemonej he had paid. The
result of various proceedings in the aistrict court
was the forming of an issue between the defend-
ants in error and the plaintiffs in error relative
to their respective rights in the said parcel of
land. It is situated in the section of country
east of the Mississippi River and the Island of
New Orleans, and west of the Perdido River,
which was claimed by the United States under
the Treaty of Paris of 1803 (8 Stat, at L., 200),
for the cession of Louisiana, and which was ad-
versely claimed and possessed bv Spain as a
portion of West Florida until 1812-^13. The
Act of Congress for ascertaining the titles and
claims to lands in that part of Louisiana which
lies east of the Mississippi River and Island of
New Orleans, approved 25th April, 1812 (2 Stat,
at L., Y13), is the first of the series of Acts that
apply to this district. The 8th section requires
the commissioners to be appointed under the
Act to collect and report to Congress, at their
next session, a list of all the actual settlers on
land in said districts, respectively, who have no
claims to land derived either from the French,
British or Spanish Governments, and the time
at which such settlements were made. The re-
ports made by the commissioners appointed un-
der the Act of 1812 were submitted to Coneress,
and are the subject of the Act of the 3d A&rch,
1819 (8 Stat, at L., 528), for adjusting the claims
to land, and establishing Land Offices in the dis-
trict east of the Island of New Orleans.

TheSd section of this Act provides, "that
every person whose claim is comprised in the
lists or register of claims reported by the said
commissioners, and the persons embraced in the
list of actual settlers not having; any written
evidence of claim reported as aforesaid, shall,
when it appears by the said reports or by the
said lists that the land claimed or settled on had
been actually inhabited or cultivated by such
person or persons in whose right he claims, on
or before the 15th of April, 1813, be entitled to
a CTant for the land so claimed or settled on as
a donation; provided that not more than one
tract shall be thus granted to any one person,
and the same shall not contain more than six
hundred and forty acres. By the 9th section of
this Act, the re^ster and receiver of the Land
Offices in that district were authorized to make
additions to the list of settlers, noting the time
of their settlement, and to report the same to
Congress. These, with other reports, were dis-
posed of in the Supplementary Act for adjust-
ing land claims in that district, adopted 8th
May, 1822. (8 Stat, at L., 707.) The 8d section
of the Act of 1822 is in the same language as
the corresponding section in the Act of 1819 be-
fore cited. The 6th section of this Act requires
the register and receiver to grant a certificate
to every person who shall appear to be entitle
to a tract of land under the 8d section of the
Act, setting forth the nature of the claim and

694

the quantity allowed. In 1820, Robert Y&ir
made proof in the Land Office that in the year
1805 he had settled upon a parcel of land io the
district, and had occupied and cultivated it
from that time until the date of his appllcatioD
and proof. His claim was reported to CoDj^rea,
and In 1824 a certificate issued to him for that
land, which is the land in controveray. Robert
Tair continued to occupy the land until bb
death, in 1825 or 1826. when it passed to his
widow and heirs. The defendant in error
(Carney) traces his title to these heirs. The
claim of the plaintiffs in error is traced to Nan-
cy Tate, their ancestress, who made a settle-
ment in the same district in 1811, and whose
claim was reported under the* Act of 1812, be-
fore cited.

In the year 1847 her heirs applied to the reg-
ister and receiver of the Land Office in that dis-
trict for an order of survey, in which applica-
tion they represented that Nancv Tate was en-
titled to a section of land undfer the Acta of
Con^ss aforesaid ; that she had settled upon
public land in an adjoining section, forty-one :
that John Tate was settled upon the same sec-
tion ; and that both could not have their com-
plement of land, from their proximity, out of
land contiguous to their settlement. But that
there was vacant land to the east and northeast,
not claimed by anv person, sufficient to make
up the quantity she had been entitled to, and
prayed for the order, as one that eould not in-
jure any other person. The register and receit-
er caused a notice to be served on the defend-
ant in error, to show cause why the order should
not be granted. There is no evidence that be
appear^ on this notice.

In February, 1848, the re^ster and receirer
made a decision, in which they declared that
Nancy Tate had settled upon this land: thai
they were satisfied that Robert Yair, at the im:
of the confirmation to him, was the holder of
another donation for one thousand arpents, and
that he was not entitled to this under the Act
of 1822 (3 Stat, at L. . 707), for that reason.
Th^ annulled the certificate that had been is-
sued to him, and granted the order of surrey as
applied for. The survey was made to include
this land, and a patent was issued in favor of
the representatives of Nancy Tate in 1858. Thb
patent describes the land as covered by the claim
of Robert Yair, and releases the land, subjec*.
to any valid right, if such exists. In virtue of
the confirmed claim of Robert Yair. or of anj
other person claiming from the United Sutei
the French, British or Spanish Governments
The Supreme Court of Louisiana have found
from the testimony that Nancy Tate wasuotan
occupant of this land, and that the settkment
of Robert Yair and his representatives had bet's
continuous for some forty years. The question
for the consideration of this court is, whether
the decision of the register and receiver of the
Land Office in favor of the plaintiffs in error i?
conclusive of the controversy. The Sapreoe
Court decided that it was not, and we coocor
in that opinion.

In Barbarie v. fiMa«a. 9 How.. 421, the de^
fendant in error relied upon a decisioD of the
register and receiver of a LandOffloe in the same
district, with the same powers as were conflmKd
upon these, as conclusive in his favor. This
court answered: ** We do not consider that the

1860

Clkmentb V, Wabnbb.

894-398

Act of May 8th, 1822 (3 Stat, at L., 707), and
that of the same date, which is connected with
It. and referred to bs in pari materia, for a guide,
meant to confer the adjudication of titles of
land on registers and receivers. Sometimes, as
in the case of preemptioners, thej are author-
ized to decide on the fact of cultivation or not;
and here, from the words used, no less than
their character, they must be considered as em-
powered to decide on the true location of grants
or confirmations, but not on the legal and often
complicated questions of title, involving, also,
the whole interests of the parties, and yet allow-
ing no appeal or revision elsewhere. The pow-
er given to them is, to decide only how the lands
confirmed shall be located and surveyed. Th^
further power to decide on conflicting and in-
terfering claims should apply only to the loca-
tion and survey of such claims, which are the
subject-matter of their cognizance; and on re-
sortmg to the reference made to the second Act
of Congress, that Act appears also to relate to
decisions on intrusions upon possessions and
other kindred matters."

The case of Cousin v. Blanc, 19 How., 203,
involved a question of the efltect and binding
operation of a decision of the register and re-
ceiver of the Land Ofllce upon a location and sur-
vey of a claim confirmed under the Act of 1822.
and refers to the Act of the 8d March. 1831 (4
fotat. at L., 492), as showing that the decisions
of the register and receiver were not to be con-
sidered as precluding a le^al investigation and
decision by the proper ^judicial tribun^ between
the parties to interfenng claims.

It furnishes no support of the ar^ment that
the decision of the register and receiver in such
a case as this is conclusive of the title. There
is no dispute in this case upon the subject of
the location of the claim of Yair. The whole
case shows that it had been identifled*and was
actually possessed by Yair and his heirs. The
patent of the defendants in error acknowledges
that its location had been made, and that the
new survey for the claim of Mrs. Tate covered
this location. The decision of the register and
receiver does not proceed upon any assumption
of a conflict of location, but of a denial of the
right of Yair. They had no authoritv to over-
throw the decision of the register and receiver
that had been made more than twenty years be-
fore, which had been followed by possession,
and as to which there had intervened the claims
of bonafde purchasers. It further appears that
Mrs. Tate ciid not settle upon this parcel of
land, and that the decision of the register and
receiver in her favor is not supported by testi-
mony.

The Judgment of the Supreme Court of Loui-
nana does not contain any error within the aeope
of the revising jurisdiction of this court, and U is,
consequently, affirmed,

Clted--23Ind.,04.

JOHN D. CLEMENTS, Appt,

«.

JONATHAN R. WARNER.

(See S. C, 24 How., 894-308.)

Preemption rights — applicable to alternate sec-
tions of lands granted to railroads.

See 24 How.

The reserved sections of public lands aionff the
lines of all tho railroads, wherever public lands
have been flrranted by Acts of O^ngress, after the re-
Btoration to market of such lands, lose their char-
acter as reserved lands, and will then be subject to
the privilege, of preemption in favor of settlers.

The policy of the Federal Oovemment In favor
of settlers upon public lands has been liberal. It
reooflrnizes their superior equity to become the

fmrcoasers of a limited extent of land comprehend-
DR their improvementSiOver that of any other per-
son.

No Act of Congress has defined the meaning of
the term ** reserve" as applied to lands in the viri-
ouB Acts grranting lands to a railroad, nor deter-
mined explicitly when these alternate sections lose
their character as reserves.

No reason of public policy exists to exclude this
class of public lands from the operation of the pre-
emption laws.

Submitted Jan. 25, 1861. Decided Feb. 18,1861.

APPEAL f romi the Circuit Court of the United
States from the Southern District of Illinois.

The bill in Uiis case was filed in the court
below, bv the present appellee, to quiet title to
land. The defendant demurred, and the de-
murrer was overruled, and the defendant elect-
ing to abide by his demurrer, iudraient was en-
tered for the plaintiff, and the defendant ap-
pealed to this court.

The case is further stated in the opinion.

Mr. A. B. Ives* for appellant.
Mr. R. E. Williams, for appellee.

Mr. Justice Campbell delivered the opinion
of the court:

The appellee filed this bill in chancery in the
circuit court to quiet his title to a portion of
section 33, in township 17 north, of range 8
east, of the third principal meridian, in the
County of Champaigne, Illinois. By the Act
of Congress of the 20th September, 1850 (9
Stat, at Large, 466), for granting the right
of way and making a ^rant of land to the
States of Illinois, Mississippi and Alabama, in
aid of the construction of a railroad from Chi-
cago to Mobile, there was granted to the State
of Illinois, for the purpose of making the rail-
road described in the title of the Act, every al-
ternate section of land desis^nated by even num-
bers, for six sections in width on each side of the
road ; and in case any of these sections had been
sold, or were subject to a preemption claim,
then the State was authorizea to select from the
lands of the United States, contiguous to the
tier of sections before mentioned, so much
land in sections and parts of sections as should
make up the full complement of land included
in the concessions in the Act. The Act further
provided, that the sections and parts of sections
of lands which, by the grant, might remain to
the United States within six miles on each side
of the road, should not be sold for leas than
double Uie minimum price of the public lands,
when sold. To comply with the requirements
of this Act, the Commissioner of the General
Land Office withdrew from entry or sale the
land on either side of the track of the road,
until the State of Illinois could make the selec-
tions that were authorized by it. These were
completed in 1852, and during that year the
President of the United States, by a proclama-
tion, directed the sale of those sections and parts
of sections along the line of the road that had

NoTB.--Pr««mption HpTite. See note to U. 8. v.
Fitzfferald, 40 U. 8. (15 Pet.), 407.

695

407-418

BUF&EHB COUBT OF TBS UnITBD StATBS.

Djic. Tbbx .

remained to the United States.after ihe satisfac-
tion of the grant to Illinois. Such of the sec-
tions as were not sold became subject to private
entry. The section of land described in the
plaintiff's bill, a portion of which forms the
subject of this suit, was one of these, and was

Surchased at private sale at the Land Office, in
[ovember, 1855, by a person under whom the
plaintiff derives his claim, and who has the
usual receipt given by the receiver of the Land
Office.

The conflicting claim against which the ap-
pellee seeks reliei originates in an entry by the
appellant in Noveml^r. 1856, as having a pre-
emption right under a settlement begun in Oc-
tober, 1855, before the date of the entry on
which the title of the appellee is founded. A
patent issued to the appellant as having the
superior claim. The object of the bill is to re-
verse the decision of the officers of the Land Of-
fice, and to obtain a relinquishment of the legal
title evinced b^ this patent, and the only ques-
tion presented is^ whether the lan^ was the sub-
ject of a preemption right in November, 1855.

The 10th section of the Act of the 4th Sep-
tember, 1841 (5 Stat, at L., 458), confers upoq
the beneficiaries of that Act, ''who shall make
a settlement in person on the public lands to
which the Indian title has been extinguished,
and which shall have been survey^ prior
thereto, and who shall improve and inhabit the
same, as specified in the Act, a right of preemp-
tion to one quarter section of land." Among
the exceptions in the Act to the exercise of this
right of preemption, is one that includes "sec-
tions of lands reserved to the United States, al-
ternate to other sections granted to any of the
States for the construction of any canal, rail-
road or other public improvement." 5 Stat, at
L., 486.

Subsequent Acts of Congress extend the pre-
emption privilege to lands not surveyed at the
time of the settlement, and confer privileges
upon settlers on school lands, and on lands re-
served for private claims. Mar. 3, 1848; 5 Stat.
atL., 620, sees. 8, 9.

In 1853 the preemption laws, as thev now
exist, were extended to the reserved sections of
public lands along the lines of all the railroads,
wherever public lands have been granted by
Acts of Congress, in cases where the settlement
and improvements had been made prior to the
final allotment of the alternate sections to such
railroads by the General Land Office. Mar. 8,
1858; 10 Stat, at L., 244.

In the administration of these laws, the Ex-
ecutive Department of the Government has de-
cided, that after the restoration to market of
the lands embraced in the exception we have
quoted from the Act of 1841, and when they
have become subject to entry at private sale,
thev lose their character as reserved lands, and
will then be subject to the privileges of pre-
emption in favor of settlers. The policy of the
Federal Government in favor of settlers upon
public lands has been liberal. It recognizes
their superior equity, to become the purchasers
of a limited extent of land comprehending their
improvements, over that of any other person.

By the Act of 1841 (5 Stat, at L., 458), the
preemption privilege in favor of actual settlers
was extended over all the public lands of the
United States that were fitted for agricultural

696

poses and prepared market. Later statutcss en-
larged the privilege, so as to embrace lands not
subject to sale or entry, and clearlv evince that
the actual settler is the most favoreu of the entire
class of purchasers. No Act of Congress baa
defined the meaning of the term * 'reserve," as
applied to lands in these various Acts, nor de-
termined explicitly when these alternate sections
lose their character as reserves. But all other
public lands fitted for agricultural purposes,
after they have been offeml at public aale, are
affected by the privilege of the actual settler to
have the preference of entry. No reason of

gublic policy exists to exclude this class of pub-
c lands from the operation of the same law,
under under the same conditions. No violence is
done to the language of the Act by limiting the
exception to the temporary withdrawal oi the
lands from the market, and the liberal policy
of Congress in favor of the actual settler is
better accomplished b^ a restrictive rather than
extensive interpretation of the exceptions!
clause in the Act. We, therefore, sanction the
construction adopted in the Land Office.

The circuit court overruled the demurrer of
the defendant to the bill, and made a decree in
conformity to the prayer of the bill. This is
error.

The decree of the circuit court is revered, and
the cauM ia remanded to the circuit court, with
directions to dismiss the biU, with costs,

Citedr-^ 111., 866 ; 23 Ind., 94.

JOSEPH H. ADLER, LEWIS SCRIFF,
SOLOMON ADLER Ain) LOBE RLNDS-
KOFF, Plff8.inEr,,

AARON D. FENTON, OLIVER H. LEE,

WM. H. DAVIS AMD MERRITT T. COLR

(See S. C. 24 How.. 407^13)

Insolvent debtor may alienate his property pett-
ing suits against him-— general crediicr cannot
bring action to set aside deed as fraudulent to
creditors.

Chancery will not interfere to prevent an tnaolv-
ent debtor from allenatin? his property to avoid
an existing' or prospective debt, even when tuere to
a suit peodlQg to eetablisb it.

A creditor acquires a lifcn upon the laads of hif
debtor by a Judgment; and upon the personal
goods of the debtor, by the delivery of an execu-
tion to tlio sberiff. It is only by these liens that a
creditor has any vested or speoiflc rig-ht in the
property of bis debtor.

Before these liens are acquired, the debtor bas
full dominion over his property; he may convert
one species of property into another, and he may
alienate to a purchaser.

The rigrhts of the debtor and thoee of a creditor ju«
iefloed by positive rules, and cannot be contf»-
vened or varied by any interposition of equity.

A general creditor cannot bring an action on the
case Sffalnst his debtor or against tboee oomblning
and colluding with him to make dispositions of his
property, although the object of thoee dispoattioiis
oe to hinder, delay and defraud oreditora.

Argued Feb, 6, 1861. Decided FA. 18, 1861

N ERROR to the District Court of the United
States for the District of Wisconsin.

Nora.— ITVaud in avoidanee of deeds. See note to
Harding v. Handy, 24 U. 8. (U Wheat.), IQB.

66 r. s.

1860.

Adlbr v. Fbntok.

407-41S

This was an action on the case brought by
the present defendants in error in the court be-
low.

Upon the trial below, the iury, under the
charge of the court, rendered a Judgment for the
plaintiff. The defendant brought the case to
this court upon various exceptions.

The case rally appears in the opinion of the
court.

Messrs, James S. Brown and J. R. Doo-
little» for the plaintiffs in error:

We contend that a creditor, as such, having
neither Judgment nor writ, has no interest in
his debtor's fraud.

Wiggins v. Armstrong, 2 Johns. Ch., 144;
TaU V. Liggat, 2 Leigh, 84: Beck ▼. Burdett, 1
Paige, 306; 9 Wend., 565.

If this be conceded, it follows that he can be
legally affected by no conspiracy which relates
merely to the removal or destruction of that
property, whatever be the motive of the act.
£ven should it result in the ruin of his debtor
and the final /loss of the debt, it becomes dam-
num absque ii\furia.

See, also, Williams v. Broton, 4 Johns. Ch.,
682.

Mr. William P. Lynde, for defendants in
error:

Whenever there is fraud or deceit by the one
party and injury to the other, or damnum cum
ir^uria, then an action will lie.

Janes v. Parker, 1 Cow., 446; Tappan v.
Powers, 2 Hall. 77; 8 Bl. Com., 122; 8 Rob.
Pr., 423; Adams v. Page, 7 Pick., 542; Hop-
kins V. Bebee, 26 Pa., 86; Upton v. Vail, 6
Johns., 182; Meredith v. Johns, 1 Hen. & M.,
585; CottereU v. Jones, 11 C. B., 717; Smith v.
TonstaU, Carthew, 8.

A creditor without Jud^ent or execution,
and even before his debt is due, may sue par-
ties at law in an action on the case, who con-
spire to defeat the right of collection, by fraud-
ulently concealing and converting the debtor's
goods.

Kelsey v. Murphy, 26 Pa.. 84; Mott v. Dan-
forth, 6 Watts, 304; Mtnrison v. WitheriU, 8
Berg. & R., 502.

Tiie action is for a wrong independent of con-
tract. The amount of the indebtedness is shown
in ascertaining the damages. It is not univer-
sally true that when, by agreement,an act is to
be done on a future day, no action can be
brought for a breach of the agreement till the
day for doing the act in question has arrived.

See Hochster ^r. DeLa Tour, 2 El. & B., 678;
Short V. St(me, 8 Q. B.. 858; Ford v. Tiley, 6
Bam. & C. 325; Lovdockv, Franklyn, 8 Q. B.,
371; BowdeUY, Parsons, 10 East, 859.

Mr. Justice Campbell delivered the opinion
of the court:

This action was instituted by the defendants
in error in the district court, as creditors of two
of the plaintiffs in error, Adler & Schiff , upon
the complaint that this firm had combined and
conspired with their co-defendants in the court
below to dispose of their property fraudulentlv,
so as to hinder and defeat their creditors in the
collection of their lawful demands, by means
of which fraudulent acts they affirm they suf-
fered vexation and expense, and finally incurred
the loss of their debt.

Bee 24 How.

The defendants pleaded the general issue.
Upon the trial the plaintiffs proved that Adler
& Schiff were traders in Milwaukee, and to carry
on their business, in August, 1857, purchased
of the plaintiffs, and other merchants in New
York, upon credit, a large quantity of merchan-
dise, which, with their other property, shortly
after its delivery at Milwaukee, was assigned
to one of their co-defendants, for the ostensible
purpose of paying their debts, but really with
the purpose of more effectually concealing it
from the pursuit of their creditors.

There was testimony conducing to convict all
the defendants of a conunon des&n to accom-
pl ish this purpose. The plaintiff s had extended
a credit to Adler & Schiff of two, four and six
months. They caused an attachment to issue
against this firm upon all their debt which had
become due at the time these transactions oc-
curred, which was levied upon sufficient prop-
erty t^ satisfy it, and afterwards, and before
the maturity of their remaining demand, this
suit was commenced. At the time of the trial,
this demand was their only claim against Adler
& Schiff.

The defendants requested the court to instruct
the Jury, " that a creditor at large, as such, has
no legal interest in the goods of his debtor, and
cannot maintain an action for any damages done
to such property; and that if the defendants
had been guilty of a conspiracy to remove the
propertv of a debtor, and thereby to defraud
his creditors, a creditor at large, not having a
present right of action against such debtor,
has not such an interest in the subject of the
fraud as to enable him to maintain an action for
damages against the defendants, and that the
declaration discloses no cause of action against
the defendants." The court declined to give
this instruction, but charged the Jury '* that the
plaintiffs sold their soods to Adler & Schiff on
credit: they had no interest in the goods sold,
or in the other property of these defendants,
but an interest in the debt owing for the goods
so sold on credit. And if the defendants have
been guilty of a conspiracy to remove the prop-
erty of Adler & Schiff, and they did so remove
their property, with intent to defraud the plaint-
iffs in the collection of their debt when it should
become payable, even though it was not paya-
ble when such removal was effected, the plaint-
iffs have a cause of action after the debt be-
came payable. " To enable the plaintiffs to sus-
tain an action on the case like the present, it
must be shown that the defendants have done
some wrong, that is. have violated some right
of theirs, and that damage has resulted as a di-
rect and proximate consequence from the com-
mission of that wrong. The action cannot be
sustained, because there has been a conspiracy
or combination to do injurious acts. In Savue
V. Boberts, 1 Ld. Raym., 374, Lord Holt said,
*' it was objected at the bar aeainst these old
cases, that they were grounded upon a conspir-
acy, which is of an odious nature and, there-
fore, sufficient ground for an action by itself.
But to this objection he answered, that conspir-
acy is not the ground of these actions, but the
damages done to the party; for an action will
not lie for the greatest conspiracy imaginable if
nothing be put in execution." There are cases
of injurious acts for which a suit will not lie

697

407-413

SuPRElffE GOUBT OF TTIB UmTED StATBB.

Drc. Tbbm.

unless there be fraud or malice concurring to
cliaracterize and distinguish them. But in these
cases the act must be tortious, and there must
be consequent damage. An act legal in itself,
and violating no right, cannot be made action-
able on account of the motive which superin-
duced it. It is the province of ethics to con-
sider of actions in their relation to motives, but
jurisprudence deals with actions in their rela-
tion to law. and for the most part independent-
ly of the motive. In Hutchins v. HutcMns, 7
Hill (N. Y.), 104. the defendants had success-
fully conspired to induce a testator by fraudu-
lent representations to alter a will he had made
in favor of the plaintiff.

The court said, " for injuries to health, liber-
ty and reputation, or to rights of property, per-
sonal or real, the law has furnished appropriate
remedies. The former are violations of the ab-
solute rights of the person, from which damage
results as a legal consequence. As to the latter,
the party aggrieved must not only establish that
the alleged tort or trespass has been committed,
but must aver and prove his right or interest in
the property or thing affected, before he can be
deemed tahave sustained damages for whibh an
action will lie." And because the plaintiff had
a mere possibility of benefit, and was deprived
only of hopes and expectations, it was decided
that the action in that case would not lie. In
Stevenson v. Newnham, 18 C. B., 285. it was de-
termined, that when the act complained of is
not unlawful per m, the charactenzing it as ma-
licious and wrongful will not be sufficient to
sustain the action. In the present suit, the
plaintiffs do not allege that they were defrauded
in the contract of sale of their merchandise,
although there is abundant testimony to show
that the purchases were made by Adler & Schiff ,
with the intention of defrauding their vendors.
But the plaintiffs, by electing to sue for the
price, have waived that fraud and confirmed
the sale. Adler & Schiff were the lawful own-
ers of the property at the time this suit was com-
menced. They had the legal right to use and
enjoy it to the exclusion of others, and no one
had any right to interfere with their use or dis-
position ; none, unless there be a right conferred
by the law upon a creditor to prevent the ac-
complishment of fraud by his debtor, and to
pursue him, and others assisting him, for a re-
vocation of acts done to hinder, delay or defraud
him, in the collection of his demand.

The authorities are clear, that chancery will
not interfere to prevent an insolvent debtor from
alienating his property to avoid an existing or
prospective debt, even when there is a suit pend-
ing to establish it. In Aforan v. Dawes, Hopkins
Ch., 865. the court says: " Our laws determine
with accuracy the time and manner in which
the property of a debtor ceases to be subject to
his dispissition, and becomes subject to therights
of his creditor. A creditor acquires a lien upon
the lands of his debtor by a judgment, and upon
the personal goods of the debtor by the delivery
of an execution to the sheriff. It is only by these
liens that a creditor has any vested or specific
right in the property of his aebtor. Before these
liens are required, the debtor has full dominion
over his property; he may convert one species
of property into another, and he may alienate
to a purchaser. The rights of the debtor, and

698

those of a creditor, are thus defined by poBitive
rules; and the points at which the power of tbe
debtor ceases and the right of the creditor com-
mences, are clearly established. These regala-
tions cannot be contravened or varied by any
interposition of equity. There are cases in which
the violation of the rights of a creditor, w^ithin
these limits, has formed the subject of an action
at law against third persons. Smith v. TongUUl,
Carth., 8; PenrodY. Mitch^, 8 Serg. &R., 522;
Kelsy V. Murphy, 26 Pa. St., 78; Totes v. Joyc^,
11 Johns.. 186. But the analogies of the law.
and the doctrine of adjudged cases, will not al-
low of an extension, by the courts, of the remedy
employed in those cases in favor of a general
creditor. This subject was discussed much at
large in Lamb v. Stone, 11 Pick.. 527.

*' The plaintiff complained of the fraud of
the defendant in purchasing the property of his
absconding debtor, in order to aid and abet bim
in the fraudulent purpose of evading the pay-
ment of his debt. The court ask, what dama^
has the plaintiff sustained by the transfer of hU
debtor's property? He has lost no lien, for he
had none. No attachment has been defeated,
for none had been made. He has not lost the
custody of his debtor's body, for he had not ar-
rested him. He has not b^n prevented from
attaching the property, or arresting the body of
his debtor; for he had never procured any writ
of attachment against him. He has lost no
claim upon, or interest in the property, for he
never acquired either. The most that can be
said Ib, that he intended to attach the property,
and the wrongful act of the defendant has pre-
vented him from executing this intention. *
* * On the whole, it does not appear that the
tort of the defendant caused any damage to the
plaintiff. But even if so, yet it is too remote,
indefinite and contingent to be the ground of an
action." The same court reaffirmed this doc-
trine in Weliingten v. Small, 8 Gush. , 146.

Unquestionably, the claims of morality and
justice, as well as the legitimate interests of
creditors, require there should be protectioo
against those acts of an insolvent or dishonest
debtor that are contrary to the prescriptions ot
law, and are unfaithful and injurious. But tbe
Legislature must determine upon the remedies
appropriate for this end ; and the difficulty of
the subject is evinced by the diversity in the
systems of different States for adjusting the re-
lations of creditor and debtor, consistently with
equity and humanity. Bankrupt and insolvent
laws, laws allowing of attachment and seques-
tration of the debtor*s estate, and for the revo-
cation of fraudulent conveyances, creditor's bills
and criminal prosecutions for fraud or conspir-
acy, are some of the modes that have been
adopted for the purpose. In the abeenoe of spe-
cial legislation, we may safely a^rm that a gen-
eral creditor cannot brmg an action on the case
against his debtor, or against those combinine
or colluding with him to make dispoaitioos ci^
his property, although the object of those dis-
positions be to hinder, delay and defraud credit-
ors.

The charge of the district judge is erroTMtms,
and the judgment of that court is rewrsed, and
the cause remanded for further proceeding

Cited~6 Am. Rep., 848 (84 Md., 400

« U.S.

1860.

Uniok Steamship Co. v. N. Y. & Va. Stbamshif CJo.

807-815

THE UNION STEAMSHIP COMPANY OP
PHILADELPHIA, Claimant and Owner
of the Steamship Pbmnstlyania, her
Tackle, «S5C.

THE NEW YORK & VIRGINIA STEAM-
SHIP COMPANY.

(See S. C, 2i How., 807-815.)

CoUuion by inevitable aeciderU — where damagee
must faU—tchere one or both partiee in fauU,
who UabU for damages — whcU is ineviiaile ac-
cident— negligence, what is — starboarding the
helm — intuffidtnt excuse.

Collision between two steamboats where It Is
conceded that the collision was not occasioned by
any fault on the part of those In charge of the in-
jured vessel, but it is Insisted that the coUidingr
steamer was also witbout fault, and that the col-
lision was the result of inevitable accident.

Where a collision occurs exolusiveiy from nat-
ural causes, and without any negliflrence or fault
either on the part of the owners of the respective
vessels, or of those intrusted with their control and
management, the rule of law is, that the loss must
rest where it fell ; on the principle that no one is
responsible for such an accident. If it was produced
by causes over which human agency could ezer-
oiAe no control.

But that rule has no application, whatever, to a
case where negligence or fault is shown to have
been committed on either side.

If the fault was one committed by the libelant
alone, proof of that fact is of itself a sufficient de-
fense; or if the respondent alone committed the
fault, then the libelant is entitled to recover; and
if both were in fault, then the damages must be
equally apportioned between them.

It is only when the disaster happens from nat-
ural causes, and without negligence or fault on
either side, that the defense of accident can be ad-
mitted.

Inevitable accident, as applied to cases of this
description, must be understood to mean a "col-
lision which occurs when both parties have en-
deavored, by every means in their power, with
cnre and caution, and a proper display of nautical
skill, to prevent the occurrence of the accident."

It is not inevitable accident where a master pro-
ceeds carelessly on his voyage, and afterwards cir-
cumstances arise, when it is too late for him to do
what is fit and proper to be done.

He must show that he acted seasonably, and that
he " did everything which an experienced mariner
could do, adopting ordinary caution," and that the
collision ensued in spite of such exertions.

Where it was so dark that the lights of the ap-
proaching steamer could not be seen, it was negli-
gence in the master, while his steamer was pro-
ceeding at the rate of six miles an hour, to remain
in the saloon, whollv inattentive to the peculiar
dangers incident to the character of the night.

If it was not unusually dark, then it is clear that
there was gross negligence on the part of those in
charge of the deck.

The great fault committed, was that of putting
the helm to starboard. Instead of keeping the
cwurae or porting it, when it become known that
the other steamer was approaching.

The excuse given for it by the pDot, that he sup-
posed his own steamer was backing, only adds to
the magnitude of the error, as it shows that the
order was given without knowing what its eifeot
-would be.

Argued Feb. IS, 1861. Decided Feb. £S, 1861.

APPEAL from the Circuit Court of the United
States for the Eastern District of Virginia.
This was a case growing out of a collision.
The libel was filed by the present appellees in
the District Court of the United States for the
Eastern District of Virginia. The court de-
Nora.— OottMon ; ndeefor avftiding. Steamer mut-
ing steamer. 8eeinot« to Williamson v. Barrett, 54
U. 8. (13 How.), lOL

Bee d4 How.

creed in favor of the libelants; and the claim-
ants, the present appellants, appealed to the
circuit court, by wluch court the decree of the
district court was affirmed. The claimants ap-
pealed to this court.
The case is further stated in the opinion.

Messrs. Robert P. Kane and A. A.
Smithy for the appellant.

Mr. William F. Watson, for the appel-
lees.

Mr. Jusitice Clifford delivered the opinion
of the court:

This is an appeal from a decree of the Cir-
cuit Court of the United States for the Eastern
District of Virginia, sitting in admiralty. The
libel was filed in the district court by the ap-
pellees, on the 18th day of June, 1895. It was
a proceeding in rem against the steamship Penn-
sylvania, and was instituted to recover com-
I)ensation for certain damage done to the
steamship Jamestown, by means of a collision
which occurred between those steamers in
Elizabeth River, on the night of the 7th of
January, 1855, some five or six miles below the
port of Norfolk, in the State of Virginia. At
the time of the collision, The Jamestown was
on her regular weekly trip from the port of
Norfolk to Richmond, in the same State, and
The Pennsylvania was proceeding up the river
to Norfolk, in the prosecution of her regular
semi-monthly trip from Philadelphia to her
place of destination. Libelants allege that
The Jamestown was pursuing her usual and
proper course down the river, and that the
collision occurred in consequence of the im-
proper and unskillful management of those in
charge of the other steamer. Process was duly
served, ana the respondents appeared and
answered to the suit. They admitted the col-
lision but alleged, in effect, that it occurred in
consequence of the intense darkness of the
tiight, occasioned by a dense fog. witbout any
such negligence or fault as alleged in the libel,
and in spite of every possible precaution on the
part of tliose in charge of their steamer to pre-
vent it. A decree was entered for the libelants
in the district court, which was afllrined, on
appeal, in the circuit court, and thereupon the
respondents appealed to this court. It is now
conceded by the respondents that the collision
was not occasioned by any fault on the part of
those in charge of the injured vessel, but it
is insisted in their behalf that the colliding
steamer was also without fault, and that the
collision waa Uie result of inevitable accident.
To establish that defense, they rely entirely
upon the character of the night, as shown by
the evidence, and the circumstances attending
the disaster. From the evidence, it appears
that The Jamestown left the wharf at Norfolk
on the 7th of January, 1855, about eleven or
half past eleven o'clock at night, as alleged in the
libel. When she started, there was a thick fog
in the harbor, but she met with no difficulty in
passing out, and it so far cleared awav in about
half an hour that those in charge of her deck,
as she proceeded down the river, could see the
lights and even the hulls of vessels ahead, and
the land on the eastern shore. Several wit-
nesses also testify that the moon had risen, and
that stars were occasionally visible, though they
admit that it was still quite foggy, and that

699

807-816

SUFBSMB Ck>UBT OV THE UkITBD BtATBS.

Dsc. Tkrm,

there was a heavy mist on the water. Two
competent lookouts were accordingly stationed
at the usual place in the forecastle, and the
signal lights of the steamer were properly dis-
played. Those precautions had been taken at
the time the steamer left the wharf, but about
the time she passed the naval hospital, the
master, as he had been accustomed to do on
similar occasions, left the quarter deck, and
took a position in the rigging of the steamer,
some ten feet above the hurricane deck. Leav-
ing the lookouts properly stationed in the fore-
castle to perform their usual duties, he doubt-
less chose that more elevated situation to get a
less obstructed view of distant objects, and he
testifies that he could then see a mile and a
half ahead, and the evidence furnishes no good
reason to doubt the truth of his statement.

Intending to take the eastern side of the chan-
nel, another precaution also became necessary,
so as not to incur the hazard of running the
steamer aground ; and to guard against any such
danger, he directed the mate to heave ihe lead
at snort intervals, and to report to him the
soundings; and the order was faithfully obeyed.
Having taken these precautions, he continued
to prosecute the voyage at a moderate rate of
speed, sometimes stopping the engine when the
fog shut in. and occasionally ringing the bell
and sounding the whistle ; and the steamer, pur-
suing her regular course, rounded Lambert's
Point in perfect safety, passing so near to the
buoy located there that it was seen by the mas-
ter from his position in the rigging, and par-
ticularly noticed. On arriving there, it was
necessary to change the course of the steamer;
and inasmuch as he had noticed the buoy, he
was enabled to perform that duty without dan-
ger of mistake. Orders were accordingly given
to the wheelsman to set the course north one
fourth east, and to run by the compass. Dur-
ing all this time the master remained in the
i^£^g^O£^> ^^^ ^^ testifies that after the steamer
round^ the point, he could see from the buoy
to Craney Island light ship, which, according to
his estimate, is a mile and a half. Presently,
however, as the steamer advanced, he saw an-
other light, on the larboard bow of the steamer,
and finding upon inquiry that the wheelsman
had not seen it, he called his attention to the
fact that there were two lights, expressing the
opinion, at the same time, that the one last dis-
covered was the light of The Pennsylvania
coming up the river. His own steamer at that
time was heading north, half east, and he di-
rected the wheelsman to port the helm, so as to
keep both lights well on the larboard bow,
which had the effect gradually to sheer the
steamer still closer to the eastern side of the
channel. She had previously been running in
about four fathoms of water, but the mate soon
reported that the soundings showed only three,
and as she advanced, he informed the master
that there was but two and a half fathoms, and
cautioned him that there was danger of running
aground. At this time the master saw the sig-
nal lights and hull of The Pennsylvania, as she
passed the light ship, on the western side of the
channel. Immediate orders were then given to
ring the bell and sound the whistle, and the
master testifies that the signals were answered
from the approachhig steamer. Shortly after-
wards, the mate reported that the soundings

700

showed but ten feet of water, and immediately
upon receiving that information he gave the
necessary orders to stop the machinery, and re-
verse the engine. Both orders were promptly
obeved, and it was then the master first discov-
ered that the approaching steamer had altered
her course, and was heading diagonally across
the channel towards The Jamestown. Tbey
were then less than a (quarter of a mile apart .
and seeing that a collision was almost inevita-
ble, he instantly directed the alarm bell to be
rung, and the whistle of the steamer to be
sounded; and as there was nothing more that
he could do to avoid the danger, he gave warn
ing to the men in the forecastle, and left the
rigging, and returned to the quarter deck.
Further reference to the circumstances preced-
ing the collision, so far as respects the injured
steamer, is unnecessary at this stage of the in-
vestisntion. According to the evidence, it seems
that The Pennsylvania arrived off Cape Henry
at an early hour in the evening of the day of
the collision, but in consequence of the fo^
and the difficulties of the navigation, she did
not enter the river till after eleven o'clock at
night. She proceeded up the river at th^ rate
of about six miles an hour, and the mate, who
was the acting pilot after she entered the river,
and had charge of her deck, admits that she ran
venr close to the before mentioned light ship,
ana that her course at that time was south, half
east, and it is not possible to doubt that if she
had continued on that course a short time long-
er. all danger would have been avoided. Such,
however, was not the fact, as is clearlv shown
by the pilot himself, and we refer to his testi-
mony in preference to that of the master, be-
cause the latter remained in the saloon onlil
just before the collision occurred. Among other
things.' the pilot admits, that shortly after hh
steamer passed the lisht ship, he gave the order
to starboard the hehn; and what seems even
more remarkable, in cases of this description,
he acknowledges that he gave the order after
he knew that another steamer was approaching,
thoueh he denies that he had seen her lights.
His theory is, and he accordingly testifies, tliat
he first gave the order to stop and back; and
inasmuch as that order had been executed, and
the steamer had actually commenced to back,
that putting the helm a-starboard had the same
effect as porting the helm would have produced
if the steamer had been going ahead. But it is
a sufficient answer to that theory, as applied Uy
this case, to say that the evidence shows, beyond
the reach of doubt, that the steamer was still ad-
vancing at the rate at least of three or four miles
anhour,so that, upon his own theory, he commit-
ted an error, and according to his own testimo-
ny he committed it with a knowledge of the
approaching danger. Three or four witnesses,
including the master of the colliding steamer,
testify that she was advancing three or four
miles an hour when the collision occurred, and
the damage done to the injured steamer proves
to a demonstration that her headway must have
been very considerable. On the contrary, the
injured steamer had nearly stopped, and being
already as close to the eastern siae of the chan-
nel as the means of navigation would allow,
she was almost as powerless to prevent the col-
lision as if she had been lashed to the wharf
from which she started. It was under these

1860.

PBBm V. Cabbt.

465-508

circumstances that the two steamers came to-
other, and the evinence shows that the collid-
ing steamer struck the other on the port bow
near the forward gangway, some thirty or forty
feet abaft the stem. As described by the wit-
nesses, it was a full blow at right anglep, and
had the effect to force the stem of the colliding
steamer some six feet into the hull of the other,
tearing up the deck of the forecastle a third
part of the way across the veasel, and breaking
into two pieces six or eight of the largest tim-
bers. Looking at the whole circumstances of
the collision, it is vain for the respondents to
suppose that this court can hold that it was the
result of inevitable accident. Where the col-
lision occurs exclusively from natural causes,
and without any negligence or fault either on
the part of the owners of the respective vessels,
or of those intrusted with their control and
management, the rule of law is, that the loss
must rest where it fell ; on the principle that no
one is responsible for such an accident, if it
was produced by causes over which human
agency could exercise no control. Stainback v.
Roe, 14 How.. 533; 1 Pars. M. L., 187. But
that rule can have no application whatever to
a case where negligence or fault is shown to
have been committed on either side; for if the
fault was one committed by the libelant alone,
proof of that fact is of itself a sufficient defense ;
or if the respondent alone committed the fault,
then the libelant ib entitled to recover; and
clearly, if both were in fault, then the damages
must be equally apportioned between them.
Plainly, therefore, it is only when the disaster
happens from natural causes, and without neg-
ligence or fault on either side, that the defense
set up in this case can be admitted. Inevitable
accident, as applied to cases of this description,
must be understood to mean *' a collision whicli
occurs when both parties have endeavoiled, by
every means in their power, with due care and
caution, and a proper display of nautical skill,
to prevent the occurrence of the accident. The
Ixwhlibo, 8 W. Rob., 318; The James Gray v.
The John Fraeer, 21 How., 184. It is not in-
evitable accident, as was well remarked by the
learned judge in the case of The JiUiet SrMne,
6 Notes of Cases, 684, where a master proceeds
carelessly on his voyage, and afterwards cir-
cumstances arise, when it is too late for him to
do what is fit and proper to be done. " He must
show that he acted seasonably, and that he
** did everything which an experienced mari-
ner could do, adopting ordinary caution," and
that the collision ensued in spite of such exer-
tions. The Bom, 7 Jur., 881. Unless the rule
were so, it would follow that the master might
neglect the special precautions which are often
necessary in a dark night, and when a collision
had occurred in consequence of such neglect,
he might successfully defend himself upon the
ground that the disaster had happened from the
character of the night, and not from any want
of exertion on his part to prevent it. Tlie Bo-
Uivier, 40 Eng. L. & £q., 25; Th4 Burapa, 2
Eng. L. & Eq., 564; The Mellona, 5 Notes of
Cases, 558. Applying these principles to the
present case, it is obvious that the defense set
up by the respondents cannot be sustained.
They not only fail to show that the steamer was
without fault, but the testimony of those in
charge of her incontestably proves that they

See 24 How.

were guilty of negligence in more than one par-
ticular. Both steamers were in the prosecution
of their regular and stated trips and, of course,
those in charge of them knew, or ought to have
known, that they were liable to meet each other
on the route; and if it was so dark that the
lights of an approaching steamer could not be
seen, it was negligence m the master, while his
steamer was proceeding at the rate of six miles
an hour, to remain in the saloon, wholly inat-
tentive to the peculiar dangers incident to the
character of the night; ana if it was not unu-
sually dark, then it is clear that there was gross
negligence on the part of those in charge of the
deck. It is shown by the evidence that the
colliding steamer had two lookouts; but it is
not shown what, if any. duty they performed
in the emergency, or that any inquiries were
made of them, either when the course of the
steamer was changed near the light ship, or when
the pilot heard the noise made by the wheels of
the approaching steamer. But the great fault
comoutted on the occasion was that of putting
the helm to starboard, instead of keepiiig the
course or porting it when it became known that
the other steamer was approaching; and the
excuse ^ven for it by the pilot, that he sup-
posed his own steamer was backing, only adds
to the magnitude of the error, as it shows that
the order was given without knowing what its
effect would be, which could only nave hap-
pened from indifference or inattention to duty.
Fbr these reasons, toe are of the opinion tltat
the decision of the circuit court was correct, and
the decree is, accordingly, affirmed, with costs,

Clted-W U. 8. (8 Wall.), 658 ; 79 U. 8. (12 Wall.), 43 :
81 U. 8. (U Wall.), 216, 366 ; 88 U. 8. (21 Wall.), 17 ; 90
tr. 8. (23 WaU.), 13; 91 U. 8., 215; 93 17. 8., 319; 96 U.
8.,610;102U. 8.,203;3 Cliff ., 469, 637 : 4Cliff..l69; 1
Holmes, 18.

CHA.RLE8 McMICKEN PERIN, CLYDE
PERIN, AND MARY E. PERIN, Infants, by
their Father and Next Friend, Franklin
Pbrin, Appts,,

FREEMAN G. CAREY, WM. CR08SMAN,
WM. M. T. HEWSON, THE CITY OF
CINCINNATI, ELIZABETH RANDALL,
DAVID P. STILLE and ELIZABETH,
ms WiFB. AND ANDREW McMICKEN.
(8ee8. C.,24 How., 4A6-608.)

Witt, conveying property to a city for charitable
uses, is taJUd — city corporation may take devises
and bequests in trust for charitable uses — prrf-
erence of pa/rticular classes of persons as bene-
ficiaries, M valid — what devises are charities —
Ohio Legislature,

Where a testator devised to the City of Cincin-
nati, and its suooessors. real and personal estate,
in iruBU for the purpose of building and main-
taining two ooUe^es for the education of boys

Note.— IFTuit ia a charity, and bequests valid tor
chOfTiloLble purposes and those not. dee m>te to Vi-
dali V. Girard'B BxrB.,43 U. 8. (2 How.), 127. Devise
in trustees for charitable uses and to unincorporated
assoctations, Validitv of particular devUses and be-
quests, ValidUy of GnarUabie endowments not gov-
erned by Statute 43 Eli9.,ch,4. See note to Ingrlis v.
Trustees Sailor's 8nuir Harbor, 28 U. 8. (3 Pet.), 99.

701

465-508

SXTPSBJCB COUBT 07 THE UNinBD STATES.

Dec. Term,

and girls, the surplus to be applied to eduoatlon
and support of poor orphans, preference to be
fflven to his relations and desoendants : held^hat
the doctrines founded upon the Statute of 43 £Uiz.,
eh. 4, in relation to charitable trusts to corpora-
tions, either municipal or private, have oeen
adopted by the courts of equity in Ohio, but not by
express l^slation ; nor was that necessary to ffive
courts of equity in Ohio that Jurisdiction.

The Bnfflish Statutes of Mortmain were never in
force in the Eni; llsh colonics ; and if they were ever
considered to be so in the State of Ohio, they were
repealed by the State Act of 1806.

The City of Cincinnati, as a Corporation, Is capa-
ble of tfliking, in trust, devi ses and bequests for
charitable uses, and can take and administer the
devises and bequests in the will.

Those devises and bequests named are charities,
in a leflral sense; and are valid in equity, and mav
be enforced in equity by its Jurisdiction In such
matters without the intervention of legislation by
the State of Ohio.

The direction in the will, that the real estate de-
vised should not be alienated, makes no perpetuity
in the sense forbidden by the law, but only a per-
petuity allowed by law and equity in the cases of
charitable trusts.

There is no uncertainty in the devises and be-
quests as to the beneficiaries of testator's intention ;
and his preference of particular persons, as to who
should be pupils in the colleges which he meant to
found, was a lawful exercise of his rightful power
to make the devises and bequests.

The disposition which he makes of anv surplus
after the complete organization of the colleires is a
good charitable use for poor white male and female
orphans.

Legislation of Ohio upon the subject of corpora-
tions, by the Act of April 9, 1862, does not stand in
the way of carrying into effect the devises and be-
quests of the will.

Argued Jan. SO, 186 J. Decided Feb. 26, 1861.

APPEAL from the Circuit Court of the United
States for the Southern District of Ohio.

This was a bill in equity filed by the com-
plainants, the present appellants, collateral heirs
at law of one Charles McMicken, in the court
below, for the purpose of invalidating the last
will and testament of the said Charles Mc-
Micken.

The provisions of the will in question appear
in the opinion of the court. The objections to
the will set out in the bill are as follows:

Ist. ** Said City of Cincinnati was formerly a
municipal Corporation, created and having cer-
tain powers conferred upon it by an Act of In-
corporation of th& Legislature of the State of
Ohio, but it now exists only as apolitical divis-
ion of a State under a general law having a uni-
form operation throughout the State, and is
without anv power or authority to accept said
devises or bequests, to acquire or hold the title
to the said property mentioned in the said de-
vises or bequests for the purposes therein ex-
pressed, or to execute the trusts or any of them
therein set forth and declared.

!^. " Said Charles McMicken, deceased, has
undertaken.by said alleged devises and bequests,
to render a large amount of real estate above
described, situate in said City of Cincinnati in
said State of Ohio, and an Indefinite amount
of real estate to be hereafter purchased in said
City of Cincinnati, foreyer unalienable, con-
trary to the law and public policy of said State.

8. ** There are no persons mentioned or re-
ferred to as beneficiaries under the trust at-
tempted to be created by said will, who are so
described that they are entitled to and can claim
the benefit to said trusts or any of them, and the
same are, therefore, void for uncertainty.

4th. "By the terms of said will, the estab-
lishment of the regulations necessary to carry

702

out the objects of the endowment attempted to
be made, and the power to appoint directors of
the institutions therein named, are vested in the
corporate authorities of the City of Cincinnati;
but there are no persons, either artificial or nat-
ural, who fall within or are sufficiently identi-
fied by said description.

5th. " The trusts attempted to be created by
said will are uncertain and illegal for the fur-
ther reason that the distribution of the trust
fund between the two objects of the education
of white boys and girls and the support of po(»r
white male and female orphans, is to be lejft to
the unrestrained discretion of the City of Cin-
cinnati, or of the corporate authorities of the
said City of Cincinnati.

6th. ** The trusts attempted to be created by
said will for the support of poor white female
orphans is illegal and void, because, without
authority of law, and in violation of the stat-
utes and' public policy of the State of Ohio, it
is therein requested that before they shall n-
ceive any benefits therefrom, their guardian, or
those in whose custody they are. shall have
first entirely relinquished the control of them to
the said City, and provided that those orphans
who may have remained until they have reached
any age between fourteen and eighteen jear$s
shall be bound out by the said City to some
proper art, trade, occupation or emplojment"

The circuit court sustruned the demurrer of
the defendants, and dismissed the bill of com-
plaint with costs, from which decree the com-
plainants have taken this appeal.

Messrs. T. Ewing^, F. Perin and H.
Headingfton* for appellants:

We claim, first, that the devise and bequest
is void, on the ground that the trustee is mca-
pable of taking and executing the trust, and
the t^tuis que ^r«^«f are dependent on the selec-
tion of the trustee and, therefore, there can never
be either trustee or oestuis que trust.

We will consider this point first, irrespective
of the law of charities, under the ordinar>' rule
of equity.

If the trustee be incompetent to take, and the
cestui que trust uncertain or incompetent, the
estate descends unincumbered to the heir; but
if the trustee can take the estate, but cannot
execute the trusts, and the cestui que trust h in-
capable of taking, or dependent on an act of
the trustee to designate him, or call him IdU)
being, and the trustee cannot do the act, or if in
any way it become impossible that the c€tU*ii
que trust should come into being, the trustee
holds for the benefit of the heir.

King v. MUdieU, 8 Pet., »49; Moricew. Biahai'.
of Durham, 10 Ves., 536; Atty Qen. y. Bisiuvp
of Oxf&rd, 1 Bro. C. C, 444, noU q; HiU.
Trust., 118.

The prime object or destination ot the fund
devised, is the erection of two colleges, one for
boys and one for girls, and the education theretn
of such of the testator's relations and their de-
scendants, his legatees and their desoendants.
&c., &c., as should apply to and be selected br
the City.

It was also provided that the land devis*^
and thereafter purchased for the benefit of the
trust should be inalienable forever, and ihsu
the colleges should be immortal and free from
legislative control. Now, if the City of On-
cinnati cannot take charge of this prime desii-

It60.

Pekui v. Cab&t.

465-50

nation of the fund, independently of all else, it
cannot execute the trust.

Atty Gen. v. BUhop, 1 Bro. C. C. 444, note
g; Atty-Qen. v. Oaulding, 2 Bro. C. C, 427,
4;i0; Qrieces v. Case, 1 Ves., Jr. , 548. 551 ; Cluip'
man v. Brown, 6 Ves., 404; AUy (hn. v.
Hinxman, 2 Jac. & W., 270, 278.

The 6rBt question then is, can the City take
and execute the trusts to build colleges and su-
perintend them forever for the education of
the descendants of the relatives and devisees of
Charles McMicken, whether rich or poor, with-
out regard to residence.

The City derives all its powers from the Stat-
ute of May 1, 1852.

Many specific powers are enumerated, under
none of which could it exercise this or like
trusts. The 18th section contained this clause:
*' to exercise such other powers and to have
such other privileges as are incident to munici-
pal corporations of like character or degree,
not inconsistant with this Act or the general
laws of this State."

We are to determine, then, what are the gen-
eral powers of municipal corporations. Such
corporations are confined strictly to the letter
of their charters.

7 Ohio, part 1, 232; (Mlins v. Hatch, 18 Ohio,
524; New London v. Brainard, 22 Conn., 555;
Hodges v. City of Buffalo, 2 Den., 110.

Corporations in the United States are, with
few exceptions, creatures of statutory creation.
They have just such powers as the statute gives
them directly or by implication.

Head v. Providence Ins. Co., 2 Cranch, 167;
Dartmouth Col. v. Woodward, 4 Wheat., 686;
Bank v. Dandridge, 12 Wheat., 68; Charles
River Bridge v. Warren Bridge, 11 Pet., 544;
Bank V. Earl, 18 Pet., 587; Perrine v. Canal
Co., 9 How., 184.
The Ohio decisions conform to the above.
OaUia Co. v. Holeomb, 7 Ohio, part 1, 282;
BankofChiUeothey, Town of ChiUieotJie,! Ohio,
part 2, 85, 86; 5 Ohio, 898; Bank v. Swayne, 8
Ohio, 286; CoUins v. Hatch, 18 Ohio, 523.

Such was the law in Ohio in 1852, and the
Act of that year should be construed in con-
formity therewith.

There have been two subsequent decisions.
Bartholomew v, Bentley, 1 Ohio St., 41; Straus
V. Eagle Ins. Co., 5 Ohio St., 60.

Now, if we examine the charter of this Citv
by the light of these principles, and compare it
with the terms of the trust, we shall find them
absolutely irreconcilable. The trust, there-
fore, ^nd the devise which creates it, must be
void, or they must stand without the support
of the City as trustee.

The City cannot take, as discretionary trustee,
for any person or any object not within the
scope of its own proper function.

The Legislature has deemed an express pro-
vision necessary to authorize the City to
erect and maintain infirmaries for the accom-
modation of their poor (Swan, p. 978, sec. 77);
to erect, regulate and maintain a house of ref-
uge for children under 16, convicted of of-
fenses, to erect city prisons (sec. 82); but the
power to found colleges is nowhere expressly
granted, and cannot be implied, as it is not
necessary to carry out any of the expressly
granted powers, nor is it incident to the exist-
ence of the Corporation.

See 24 How.

See, also, McDouogh v. Murdoch, 15 How.,
410; King v. Mitchell, 8 Pet., 849; Malim, v.
Kdghley, 2 Ves., Jr., 834; Briggs v. Penny, 8
McN. & Gk>rdon, ch. 557.

II. We maintain that this devise, void on
general principles, cannot be sustained as a
charity.

The peculiar course of dc'cisions under the
head of charities, finds no warrant in the
doctrines of the common law, or the practice
of courts in equity prior to the Statute of Eliz-
abeth

10 Co., 26; 1 Co., 25; 4 Wheat., 85; 8 Pet.,
115; 18 Beavan, 256; 17 Beavan, 495; 12
Beavan, 118; 10 Beavan, 209, 210; 7 Jurist.
751; 11 Jurist, 681; 8 Bl. Com.. 878. 375; 4
Kent's Com., 508. 504; 2 Beavan, 588; 28
Beavan, 248; 24 Beavan. 299, 383; MagUly.
Brown, Brightly, 880; 2 How.. 179. note; 4
N. Y., 880.

Whatever doubt may exist upon the question
of jurisdiction, it is now settled beyond dispute
that the power which the Chancellor exercises
over donations to charitable uses, whether it
existed before the Statute of 43 Elizabeth,
or not, so far as it differs from the power he
exercised in the other cases of trusts, does not
belong to the court of chancery as a court of
equity, nor is it a part of its judicial power and
jurisdiction. It is a branch of the prerogative
power of King as parens patrim which he ex-
ercises by the Chancellor.

58 U. S. (17 How.). 385, 892; 9 How., 79; 4
Wheat.. 48; 14 N. Y., 380; 2 Sto. Eq.. Jur.,
sees. 1188. 1190, 1191.

The course of decision in England under the
Statute of Elizabeth is not entitled to the
special favor of our courts. They are entitled
to favor just as far as the law favors them and
no farther. If they be specially favored, the
inheritance of the heir must be speciallv disfa-
vored. Such devises as these are said to be
beneficial to the public just the same, whether
the public or an individual be interested, and
surely equitv cannot take from the heir the in-
heritance which is his by law, simply because
the public will profit by devesting him.

See, on this subject, Stat. 9 Ga., 2, ch. 86;
2 Am. b., 616; 7 Ves., 42, 77, 87; 4 Wheat.,
48, 49; 2 Sto. Ea. Jur., sees. 1193, 1194; Wheel-
er V. Smith, 9 How., 78; Fontain v. Batenel,
58 U. S. (17 How.), 387, 894-396.

Bt it is said there has been a course of lejds-
lation in Ohio tending to the same result with
the Statute of Elizabeth, and that, pro tanto at
least, the decisions under that statute ought to
be regarded. An analysis of those laws will.
I thiuK.set these questions of legislative sanction
at rest. They are six in number, providing,

1st. That a devise to the poor of a township
shall vest the estate in the trustees of the town-
ship, for the use of the poor.

Swan, 612, sec. 14.

2d. A devise to the State of Ohio, or to any
person whomsoever, in trust for the common
school fund, shall be vested in the common
school fund.

Swan, 882, sec. 5.

8d. The respective Township Boards of Educa-
tion shall have power to take and hold in trust
for the use and benefit of any ' ' central or high
school or sub-district school m the township."

Swan, 852.

708

465-508

SUPRBMB COUBT OF THB UNITBD StATBS.

Dec. Tmbm,

4th. The trustees of the lunatic asylum may
take and hold in trust any lands, &c., conveyed,
&c. , to be applied to any purpose connected
with the institution.

Swan, 556 and 127.

5th. Townships which have been lawfully
laid off and designated shall have power to re-
ceive any devise, &c., to the township for the
benefit of the township, either for a public
square or other useful purpose specified in such
devise, &c., and shall hold the same in trust
for the township for the purposes specified in
such conveyance.

Swan, 992, sec. 1.

6th. The trustees of any university, college
or academy (created according to the provb-
ions of theAct in which the authority is found),
may hold in trust any property devised, be
queathed or donated upon any specific trust
consistent with the objects of such corporation.

Swan, 192, sec. 8.

Now, all these provisions are very distinct
and exact, and require no loose or irregular
construction. On the contrary, they seem in-
tended to prevent it by laying down plain rules
for conveyances to all such uses as the Ohio
Legislature thought proper to regard with fa-
vor; and if any of the requisites of an ordinary
conveyance in trust is oispensed with, it is
written down in plain terms.

The Statute of March 26, 1856, is relied on
by defendant's counsel.

But it cannot be supposed that this Act, un-
der any ordinary construction, can reach the
case; but enlarged and extended under the
Statute of EIiziU)eth, it might answer any pur-
pose to which chancellors should please to ap-
ply it. According to the ordinary rules of con-
struction, it has the reverse effect. The Leg-
islature had the subject of donation for educa-
tional purposes before them. They provided
for schools and academies, but did not choose
to provide in like manner for colleges. And
the testator did not think fit to give his land or
money to a school or academy under the con-
trol of trustees selected by the court of common
pleas.

While denyine the application of the Statute
of Elizbeth in Ohio, we are safe in saying that
this devise could not be sustained in the English
chancery by the present settled construction
of the law under that Act. There is no ex-
pression of a general charitable intent dehors
the defined object, and equity could not apply
it ey pres to any other like cnarity.

Atty Oen. v. Whitchurch, 3 Ves., 145; Car-
hyny. French, 4 Ves., 481; Clark v. Taylor ^
21 Eng. L. &E., 80», 809.

There are some familiar cases where corpo-
rations or associations made trustees were in-
competent to execute the trust; in which the
Legislatures, as parens patria, having passed
enabling Acts granting the power, as m case of
The Saucn-'s Snvg Harbor in New York, The
CHrwrd College in Pennsylvania, and Ths Mc-
Intire Poor School in Ohio.

But the Constitution of Ohio of 1851 does
not admit, in future, of such enabling statutes.
The Legislature of that State cannot now con-
fer upon a corporation any special powers.

Art. 18. sec. 1, Swan, 27.

There is no judicial decision in Ohio, even
prior to the Constitution of 1,851, which would

704

Bustidn this trust. The first case that was sup-
posed to involve the English doctrine of charity
was that of TheMclnUre Foot School, 9 Ohio,
262. The court held that the Corporation thus
empowered took the estate as a contingent re-
mainder, and this is all that was decided in that
case.

The case of Urmey's Exre. v. Wooden^ 1 Ohio
St., 160. is also relied on. In that there "was a
competent trustee and a eentui que trutC recog-
nized bv statute.

We claim, further, that this trust is void, on
the general grounds that it makes the colleges it
creates immortal, and that it creates a perpetuity
in the lands with which it endows them.

1. The City is trustee, and Uiough its char-
ter is subject to repeal, there must be. In the
very nature of things, organizations which will
be its successors ad inflnUum; the trustwhich the
city Corporation and its successors must there-
fore endure, and the colleges exist forever. If
the City can accept the trust,it constitutes a con-
tract, Uie validity of which no law of State can
ever impair; thererore, either the trust is not
void, or the colleges are immortal and the lands
devised and hereafter to be acquired are so ab-
solutely in mortmain that neither a corpora-
tion nor man nor law will have, over it, tiie
power of alienation.

2. Colleges created according to law have
not this immunity from destruction or change.
The law under which they may be chartered
\b subject to repeal or amendment, and there
can be no vested right to corporate powers in
those created under the Constitution of 1S51.

8. The Sute of Ohio has abolished entails,
and the issue of the first tenant in entail takes
in fee simple.

See Swan. 855. 198.

4. The law may not be evaded by making
trustee of an immortal bein^. Equity limits an
estate in trust, as the law hmits a legal estate

1 Vem.,168.

The cestui que trust cannot take an estate of
the trustee of longer duration, or bound by
more permanent restraints against alienation,
than if the legal title were made directly to
himself; and an estate, either at law or in eq
uity, which exceeds the limits allowed by law
within which property ma^ be rendered in-
alienable, is void in its creation, and incapable
of modification so as to establish it to the extent
to which it mieht have been originally carried.

Leake v. BoSirhson, 2 Mer., ^8; Southamp-
ton V. Hertford, 2 Ves. & B., 54; Andrew v.
y, r, Bible Soc., 4 Sand., 157; BiUyard r.
MtUer, 10 Pa., 835.

Mr. O. E. Pug^h and Meurs^ Tafll 4k
Pernr» for appellees:

I. The doctrines founded upon the Statute of
48d Eliz., ch. 4, have been adopted by the
courts of Ohio, and are recognized in that State
by express legislation.

Brown v. Manning, 6 Ohio, 803; BrfaiU v.
McCandleu, 7 Ohio, part 2, 186; Ma»n v
Munccut&r, 9 Wheat., 445; WHUamsv. F%r9t
Pres, Soc., 1 Ohio St., 478, 501; Mclniire B»r
School v.ZanesviUe Canal Co., 9 Ohio. 908, 287;
ZanesviUe Canal Co. v. City of Zane$vilU,20 Ohio,
488; Uffney v. Wooden, 1 Ohio St., 1«4; Attor-
nen- Generals' Act, Uay Ist, 1852. sec 14;
Swan's Stat., 51,52; Ihrby v. Derby, 4 R L,
489.

e« U.S.

1860.

Pjsbik v. Cabbt.

465-508

The original Jutisdiction of courts of equity
to protect and preserve such charitable trusts
as this under Mr. McMicken*8 will, has been
recognized and thoroug;hl7 established both by
statute and Judicial decision, not only in Ohio,
where it is now the settled law, but in nearly
all the States of the Union.

We are advised that this court is to be aaked
to review and overrule the case of Vidaly,
Philadelphia, so far as it recognizes the origi-
nal jurisdiction of the court of equity over
chanties, prior to and independent of the
Statute of Elizabeth. Never was Uiere a case
more thoroughly investigated than that. After
the enactment of 48 Elizbeth.it was easy for the
English courts to refer cases of the kind to the
statute. The most thorough investigation of
the subject is found in the Irish and American
courts. Engli^ cases, however, are abundant
sustaining the original jurisdiction of the court
of equity.

See Moggridge v. Thackwett, 8 Bro. Ch., 517;
AUyOen, v. Mayor of Dublin, 1 Bligh. N. R.,
847 ; Tneorporated Society of DubUn v. HichardSf
1 Drury & Warran, 298.

The case of The Baptist Ass. v. ffao't, 4
Wheat, 1, is distinguishable from this.

Without going further into the English cases,
we will refer to the cases showing how the cur-
rent opinion stands in the courts of the States
of the Union. The court is familiar with
the position of the courts of Virginia and
Maryland on the subject, and the history of the
coiurse of decisions in those States.

It should be premised that that class of char-
ities where the testator did not select anytbine
among the numerous objects of charity, ana
which was helped out bv the King's preroga-
tive, has not been upheld by the Ajnerican
courts, neither has the cy pres doctrine been
popular in the state courts, although that has
not been universally rejected. But the state
courts have, with strong concurrence, sustained
the validity of charitable trusts, as lar^ly as
they have been sustained in England, with the
exceptions above named.

See Whitman v. Lex, 17 Serg. & R.. 89;
PhUaddphid v. WiUs, 3 Rawle, 170; Sarah
Zane's WUl, Brightly. 367; IkmesUc and Foreign
Missionary Soc„ 30 Pa.,426: 9 Pa.. 425; 9 Pa..
438; 10 Pa.. 23; WiUiams v. WiUiams, 8 N. Y.,
525; 14 N. Y.. 880; Leonardo, Burr, 18 N.
Y., 96; 35 N. H., 445; 88 N. H., 459; 14 Pick.,
241; 16 Pick., 107; 12 Met., 250; 7 Vt, 241;
17 Conn., 182; 24 Conn., 850; 4 R. I.. 414;
Dickson v. Montgomery, 1 Swan, 848; Ocus v.
Bass, 3 Sneed. 211; 4 Dana, 868; 8 Dana. 38;
7 B. Mon., 617; 19 Ala., 825; 7 Smedes & M.,
668; 20 Tex., 89; 1 Ired. Eq., 4d6;2Ired. Eq.,
9, 255; 4 Ired. Eq., 19. 26; 6 Ired. Eq.. 130;
1 Rich. Eq., 99; 1 Hawks.. 96; iGa., 420; 17
Ark., 483; 16 III, 225; 29 Mo.. 37.

Twenty-two of the States have adopted, by
express aecisions of their highest courts, the
doctrines of charity. Against it, there is not one,
except Virginia and Maryland. The decisions
of Louisiana cannot bear upon this question.
The decisions of this court bearing upon this
question are:

4 Wheat., 1; 8 Pet., 119; 2 How., 127; 9
How.,55; 15How.,400; 58 U. S.(17How.), 882.

II. The devises and bequests are to the City
of Cincinnati for its own use as a Corporation,

8ee 24 How. U. S., Book 16.

and are valid, therefore, without regard to the
Statute of 48 Elizabeth.

1. There is no statute of mortmain in Ohio,
nor any exceptions against bodies corporate in
the Act relating to last wills and testaments.

HelfenstiM v.Oarra/rd, 7 Ohio, part 1st, 275;
Hall V. Ashby, 9 Ohio, 96. 98; Crawford v.
Chapman, 17 Ohio. 449, 552. 453.

2. The City is a Corporation authorized bv
law to take and hold property, real or personal,
by deed or will, for both the purposes desig-
nated.

Municioal Corporation Act of May 3d, 1852,
sees. 18. 84; Swan's Stat., 960. 964; Vidalv.
Philadelphia, 2 How., 186-190; McDonogh
V. Murdoch, 15 How., 406. 407; ColUns v.
Hatch, 18 Ohio, 524; Statutes of Ohio, cited;
Act of Jan. 14, 1853, Ohio Lawp, Vol. II., p.
503; Act of March 14, 1858, Swan's Stat., 610;
Act of March 11, 1853, Swan, 988, 989; Act of
April 29. 1854, Swan, 991 a, 991 h; Act of
March 8. 1831. Swan, 41; Act of March 12,
1858, Swan, 48. 44; Act of March 11. 1858,
Swan, 588; PhMps v. Bury, 2 T. R, 858.

III. The City of Cincinnati has the legal ca-
pacity to take the title of property given to it
by deed or will, in trust for a vaUd charity,
though it be not certain that such trust falls
within the specified purposes of the Corpora-
tion, in which case, the State only, and not the
heirs, can intervene to prevent it from hold-
ing a title and executing the trust.

Banyan v. Coster, 14 Pet., 122; Ooundie v.
Northampton Water Co , 7 Pa., 289, 249;
Leamre v. HUlegas, 7 Serg. & R.. 820; Sheaffe
V. O'Nea, 1 Mass., 257. 258; Fairf ax y. punter,
7 Cranch, 608; Co. Litt., 2.

The theory of the plaintiffs' counsel gives this
point some importance; the objection, as we
understand it, is purely technical. It ia that
there is a want of a party capable of holding
the legal title and performing the trusts at the
time when the testator died, and this fact de-
stroys a trust which woiild otherwise be
good, and no other court has jurisdiction to
support the trust by the appointment of a trust-
ee that can peform it.

The consequences claimed would not follow,
even with the objections to the power of the
Corporation well founded. Our present pur-
pose, however, is to show that the objection
Itself has no foundation in law. This point is
well settled by the following authorities:

Saverlakev. North, 4 Johns. Ch.. 878; Mc-
Indo V. St. Louis, 10 Mo., 576; Ooundie v.
Northampton Water Co., 7 Pa.. 239; Banks
V. Poitiaux, 3 Rand., 136; vhambers v. City of
St. Louis, 29 Mo., 572; Bunyany. CosUr, 14
Pet., 122; Vidalv. Phaadelphia,2 How.. 187;
Bairdy. Bank of Washington, 11 Serg. & R..
418; Leazurev. HiUega%,l Serg. <& R.,319; Webb
Moler, 8 Ohio, 552; Wade v. Am. Col. Sac., 1
Smedes &M.. 697.

Angell & Ames in their work on Corporation,
section 152, have laid down as a doctrine sus-
tained by the authorities, that where a general
power " to have, hold, purchase, receive," &c.,
IS limited in amount, and qualified by a pro-
viso, "that nevertheless, such lands "such
said corporation" should ''be enabled to pur-
chase and hold," ** should only extend to such
lots as should be necessary for a bank and oc-
cupied for its ordinary purposes." that even in

45 ;o£t

465-508

SUPKXHB COUBT 09 THB UnTTBD STATBS.

Dsc. Tjcbm,

that case the State only can question the taking
and holding the property excluded by the pro-
viso.

These authorities go directly to the point that
the Corporation may take the title in a case of
this kind, and thereby preserve the trust.

Chambers v. Oraham and VidcU v. PhUadd-
phia, established not only that the title passed
to the corporation, but that such passing of the
title was efficient to cut off the heirs of the tes-
tator and save the trust for the charitable pur-
poses declared bv the testator. This doctrine
does not set aside the principle that corpora-
tions derive all their powers from their char-
ter. In these cases, the power is granted in
the charter and it is the limit it is sought to im-
ply. The court would not attempt to assign a
limit by implication in the proc^ings where
the State is not a party.

If the Corporation uses a power for other pur-
poses than those intended, it is a breach of its
implied contract with the State,and to the State
only is it answerable; but that such express
power may be exercised by the Corporation,
cannot be denied by any other party than the
State, or any other proceedings than such as is
instituted to inquire into the very question.
There is not a case to be found in the reports
where a corporation, with the expressed power
granted in its charter to take property, real and
personal, without any limitation expressed has
been held incapable of taking the property giv-
en for a valid, charitable trust.

3. The City of Cincinnati has capacity to
acquire and hold the property, and to execute
the trust under this will

1 Brooke, Abr., 336, sees. 10, 40, 389; JBo^
landv.Boins, 2 Leon., 121; 1 Sanders, Uses
and Trusts, 388; Penn v. Lord BaUimare. 1
Ves.,453; AttyQen. v. London. 3 Br. Ch., 171.
(143); VUy of Coventry v. AUyGen., 7 Bro. P.
C. , 235 ; Drummer v. Coi^. of Chippenham, 14
Ves., 252; Beverly v. AttyOen., 6 H. L. Cas.,
310; Gh-eenv. Rutherforth, 1 Ves., 462; Mayor
South Moulton V. Atty Oen.,27 Eng. L. & E..
17; 9 Sim.. 30, 49, 610; Whicker v. Hume, 14
Beav.; 517; Mmyor, cfec., v. A"«w«, 3 Rawle. 170;
Domestic and Foreign Miss. Soc, 80 Pa., 425;
Town of Hamden v. Rice, 24 Conn., 350; Wade
V. Am. Col. Soc., 7 Smedes & M., 663; Chapin
V. Sch^l District, 35 N. H., 453: 88 N. H.,
450: Bartlet v. King, 12 Mass., 545: Hadley v.
Hopkins Acad., 14 Pick., 240; Phila. Bap. Ass.
V. Hart, 4 Wheat., 1; 9 Ohio, 287; Chambers v.
City of Si. Louis, 29 Mo., 672; MeDonogh v.
Murdoch, 15 How., 367;

IV. The devises and bequests are fpr the
benefit of those denominations of persons and
to endow colleges and asylums particularly de
cribed ; they are valid in equity, therefore, with-
out any trustee and independently of the Stat-
ute of Elizabeth.

McCa/i'tee v. The Orphan Asy. Soe., 9 Cow.,
484; Bartlett v. Nye, 4 Met., 378; Baptist Asso-
ciation V. Hart, 4 Wheat.,1 ; Inglis v. TheSatior*s
Snug Harbor, 3 Pet., 99; Vidal v. Philadelphia, 2
How., 127; McDonogh v. Murdoch, 15 How.,
3Q7; Smithy. Swormstedt, 16 How., 288: Mc-
Intire Poor School v. ZanesviUe Canal Co., 9
Ohio, 203, 287; Statutes of Ohio cited; Act of
May 8, 1852 concerning wills, sec. 67; Swan,
Stat., 1034: Act of March 26, 1856, "to provide
for the government of schools and academics

706

specially endowed; 58 Ohio Laws, 83, 34; Act
of March 11, 1858, for the better management
of orphan asylums,'' Swan Stat, 588; Pbntain
V. Bavend, 68 U. S. (17 How.). 869; Clark v,
Taylor,2\ Eng. L. &E.,38; Wheeler y Smith,
9 How., 55.

V. McMicken's direction that certain real es-
tate should not be alienated (sec 82), is only a
condition subsequent; and whether valid or in
valid, cannot affect the devise.

McDonogh v. Murdoch, 15 How., 410, 411,
412; Mclntire Poet School v. ZanemZfe Can.
Co., 9 Ohio, 218.

VI. It furnishes no ground for objection that
the apportionment of bounty as between the
colleges and the asylum will depend sonnewhat
on circumstances, or even the discretion of mu
nicipal authority.

Vidal V. PhOaddphia, 2 How., 127; MeDon-
ogh V. Murdoch, 15 How., 867; Pickering t.
ShotweU, 10 Penn., 28.

VII. The statutes of Ohio authorize such
disposition of orphan and destitute children as
the 23d section of McMicken's will contemp-
lates.

Act of March 12, 1853, concerning appretlcea
and servants, sees. 1, 2, 8, 4; Swan, Stat., 43.
44; Act of March 11, 1858; for the better man-
agement of orphan asylums, see 2 Swan, &;at.,
588; Amendment of March 25, 1854, Swan.
Stat., 588.

VIII. It furnishes no ground of objection
that McMicken stipulated for the preference of
particular persons as pupils or beneficiaries
whether such person be his own relatives or
the children of certain friends or others.

AttyQen. v. Earl of Lonsdale, 1 Sim., 105;
Wright v. Linn, 9 Penn., 438.

IX. It is of no consequence whether the col>
leges intended by McMicken }ye or be not with-
in the Act of April 9, 1852, * * to enable the trust-
ees of colleges, academies, universities or other
institutions, for the purpose of promotincr edu-
cation, to become corporate bodies.'* Or its
supplement of March 12, 1858, Swan. Stat..
193, 196.

The colleges need not be incorporated, inas-
much as the title of all the property is verted in
the City of Cincinnati, and the City is a Corpo-
ration with perpetual succession, if this were
otherwise, the Act of March 26, 1856, wotikl be
amply sufficient.

Ohio Laws, Vol. LIII.. p. 88.

Mr. Justice Wayne delivered the opinion of
the court :

The appellants here were the complainants in
the court below.

The object of their bill is to set aside the de-
vises and bequests in the will of Charles Mc>
Micken to the Citv of Cincinnati, in trust for
the foundation and maintenance of two colleffps

The testator says: ** Having long cherished
the desire to found an institution where white
boys and fdrls may be taught, not only a knowl-
of their duty to their Creator and their fellow
men, but also receive the benefit of a aound.
thorough, and practical English education, and
such as might fit them for the active duties of
life, as well as instruction in all the higher
branches of knowledge, except denominatiooal
theology, to the extent thiit I he same are ih>«
or may be hereafter taught in any of the ««< i:

1860.

FjfiBIN T. CaB&T.

46&-508

lar colleges or universities of the highest grade
in the country, I feel grateful to God that
through His kmd providence I have been suf-
ficiently favored to gratify the wish of my heart.
I therefore give, devise, and bequeath to the
City of Cincinnati, and its successors, for the
purpose of building, establishing and maintain-
mtc, as far as practicable, after my decease, two
colleges for the education of boys and girls, all
the following real and personal estate, m trust
forever, to wit:" describing the property in
nine clauses of the thirty-first article of the will.
He then proceeds to declare that none of the
real estate devised, whether improved or other-
wise, or which the City may purchase for the
benefit of the colleges, should at any time be
sold, but that the buildings upon any part of it
should be kept in repair out of the revenues of
his estate. In the event, however, of dilapida-
tion, fire, or other cause, or if it shall be deemed
expedient to have a larger income, he directs
houses to be taken down, and that they are to
be rebuilt out of the income of his estate. He
further authorizes purchases to be made of
other property, buildings to be put up on his
vacant lots, and designates a part of the eastern
boundary of the grounds devoted to the college
for the boys for the erection of boarding houses
for the accomodation of the students, from
which a revenue may be derived. The testator
then declares where the colleges shall be locat-
ed, that there might be a separation between
that for the boys and that for the girls. There
are other particulars under this article of the
will which we need not recite, as they have no
bearing upon the controversy made by the bill.
Passing over the 88d article of the will for the
same reason, the next article in the will is a di-
rection that the Holv Bible of the Protestant
version, as contained in the Old and New Tes-
taments, shall be used as a book of instruction
in the colleges. Next, it is declared that in all
applications for admission to the colleges, that
preference should be given 'Ho any and all of the
testator's relations and descendants, to all and any
of his legatees and their descendants, and to
Mrs. McMicken and her descendants." Then
he directs: "If, after the organization and es-
tablishment of the institution," and the admis-
sion of as many 'pupils as in the discretion of
the City have been received, there shall remain
a sufficient surplus of funds, that the same shall
be applied to making additional buildings, and
to the support of poor white male and female
orphans, neither of whose parents are living,
&c., &c., preference to be given to my relations
and collateral descendants, Sk., &c. ; that they
were to receive a sound English education. &c.,
&c. ; and afterwards, directions are given as to
the mode of receiving such poor white male and
female orphans, and the privileges to be allowed
under certain circumstances. The testator, in
the thirty- fourth article of his will, declares
that " the establishment of the regulations nee-
essary to carry oiU the objects of my endowment
I leaoe to the tcisdom and discretion of the cor-
poraU authorities of the City of CineinnaUy who
shall have power to appoint directors to said in-
stitution." The last article of the will relates
to the devises and bequests to the City, and di-
rections as to paying the accounts of the trust.
The testator then nominates executors, and
they are the appellees in Uiis appeal.

See 24 How.

This statement has been made, that the de-
vises and bequests of the testator may be fully
disclosed, and the merit of them as a charitable
use may be fully understood.

Our first observation is. that it was his in-
tention to establish primarilv two colleges for
boys and girls, and then a third for the support
of poor white male and female orphans, neither
of whose parents were living, and who were
without any means of support, who were to re-
ceive a sound English education. This third
school was to be founded bv applying to the
purpose the surplus funds which might remain
after the complete organization of the colleges.
(86th article of the will.) The testator antici-
pated that there would be such a surplus, as he
left it in the discretion of the City to determine
the number of the pupils who were to be ad-
mitted to the t^olleges. We must then keep in
mind the thirty-first and thirty-sixth articles of
the will in considering it, though they are but
contingent! V connect^ by the happening of a
surplus in the way just mentioned. For, now,
if the first is subject to a failure as a gift for
charitable purposes, the devises and bequests
may be good under the second. Our attention,
however, will be chiefiy given to the thirty-first
section and its clauses, as under that it was
principally argued by counsel.

The learned sergeant. Sir Francis Moore,
who drew the Statute of 43 Elizabeth, ch. 4, says,
in his exposition of it: ** As in all other grants,
so in a gift to a charitable use, four things are
principally to be considered : 1. The ability of
the donor. 2. The capacity of the donee. 8.
The instrument or means whereby it is given.
4. The thing itself which is or may be given to
a charitable use." And then, by way of cau-
tion to donors, he says: ** There are five things
which cannot be granted to such a use: 1.
Thin^ that yield no profit. 2. Things that
are incident to others, and inseparable. 3.
Possibilities of interest. 4. Conditions — mean-
ing that such thin^ are from their nature in-
susceptible of serving such a purpose;" and
then he adds the 5th: '* Copyholds, if in any
way pre judical to the lord. We shall not
consider them numerically, but both seem to
be the natural way to discuss such a gift when
its validity is disputed. We shall follow it in
those particulars as briefly as we can.

No question is made, however, in this case,
as to the execution of the will nor as to the ca-
pacity of the devisor. It is insisted, though,
that the devises and bequests to the donee, the
City of Cincinnati, are void, because the City
has not the capacity to take them, and also
that they create a perpetuity from being in-
alienable, which is contrarj^ to law.

Charity, in a legal sense, is rather a matter of
description than of definition; and the word
** perpetuity" in law is only determined by
the circumstances of such cases. But for the
purpose of this case, the objection to the valid-
ity of the charity on account of its perpetuity,
we will place under Mr. Sanders' definition in
his Essay upon Uses and Trusts. 196: "A per-
petuity may be defined to be a future limita-
tion, restraining the owner of the estate from
aliening the fee of the property, discharged of
such future use or estate, before the event is
determined or the period is arrived when such
future use or estate is to arise. If that event or

707

465-508

Sttfbbms ov Coubt thb UmTBD Statbb.

Doc. Tkbm,

period be within the bounds prescribed hj law,
it is jiot a perpetuity." It is then a limitation
upon the jus disponendi of property, upon the
common law right of every man to dispose of
his land " to any other private man at ms own
discretion. " And one class of those limitations
is technically termed *' alienation in mortmain,
and to charitable uses." Alienation in mort-
main, in its primary signification, is an aliena-
tion of lands or tenements to any corporation,
aggregate, ecclesiastical or temporal, the conse-
quence of which in former times was, that by
allowing lands to become vested in objects en-
dued with perpetuity of duration, the lords
were deprived of escheats and other feudal

Eroflts, and the general policy of the common
iw, which favored the free circulation of
property was frustrated, although it is true
that at the common law the power of purchas-
ing lands was incident to every corporation.
The effect of these statutes deprived every cor-
poration in England, spiritual or secular, from
acquiring, either by purchase or gift, real prop-
erty of any description, without a general li-
cense from the Crown enabling it to hold lands
in mortmain, or a special license in reference
to any particular acquisition. These restraints
were 8ubse(][uently relaxed in many particulars,
including gifts to a corporation for purposes of
education. But this case does not require us
to particularize them; our only purpose for
having alluded to statutes of mortmain being
to show, from the view taken of them from an
early day by the courts in England, that de-
vises to corporations, which generally cannot
take lands under a will, were lield good when
made in favor of charities, and that such gifts,
from the purposes to which thc^ were to m ap-
plied, and the ownership to which they are sub-
jected, have had the protection of courts of
equity to prevent any alienation of them on the
part of the person or body interested with the
offices of ffiving them effect ; and that in all such
cases land has oeen decreed by courts of equity
to be practically inalienable, or that a perpetuity
of them exists in corporations when they are
charitable gifts.

HiUam's case, Duke, 80, 875; Mayor of Bris-
tol V. Whitton, 1988. Duke. 81, 877; Mayor of
Beadmg v. Lane, 1601, Duke, 81, 861; Lewis
on Perpetuity, 684; Chrises Hospital v. Grain-

fer, 1 Macn. & G., 460; Oriffin v. Oraham, 1
lawks, 180; State v. Gerard, 2Ired. Eq., 210.
The objection, that the devises and bequests
create a perpetuity, cannot be maintained un-
less they are forbidden by the law of Ohio.
And if a perpetuity was forbidden, the chari-
table trust would not fail, but would be held
good and carried out in equity.

We are told that the 1st and 2d sees, of the
18th article of the Constitution, in connection
with the legislation of the State under them,
prevent an estate in perpetuity from being
made in Ohio. And for showing the bearing
of them upon this case, we were referred to an
Act of Ohio to restrain the entailment of real
estates. 2 Swan, sees. 855, 856.

We are unable to see anv fair connection be-
tween them. The 1st and 2d sees, of the 18th
article of the Constitution were, that the Gen-
eral Assembly shall pass no special Act Confer-
ring coporate powers. Sec. 2. Corporations
may be formed under general laws, but all

708

such may frcMn time to time be altered or re-
pealed— that is, though they ma^ be formed
under general laws, that the Legislature may
alter or repeal them. That bv the provisioa
they meant to retain their legislative powers to
give larger powers than a corporation might
have had, to reform them in any particular that
might become necessary, that of a violation of
the contract excepted. The Act to restrict the
entailment of real estates obviously applies to
individuals exclusively, and not at all to corpo-
rations, and especially to such of them as may
take and hold charitable sifts in perpetuity.

The first Act passed unaer the Constitution of
1851, relating to corporations, was to enable
the trustees of colleges, academies, universiUes,
and other institutions for promoting education,
to become bodies corporate. We wiU give it in
its terms, for nothing in the legislation of that
State can show more satisfactonly than it does,
that public spirit there is, in harmony with and
fully up to that of the age, upon the subject of
education. The language of the 1st aecUon
is, that any number of persons, not leas than
five, desiring to establish a college, university,
or other institution for the purpose of promot-
ing education, religion or morality, agriculture
and the fine arts, may, by complying with tl»
provisions of the Act, become a iKxiy corporate
and politic, with perpetual succession, and may
assume a corporate name, by which they maV
sue and be sued, plead and be impleaded, in aD
courts of law and equity ; may have a corporate
seal, and the same alter or break at pleasure:
may hold all kinds of estate, real, personal and
mixed, which they may acquire by purchase,
donation, devise, or otherwise, necessary to ac-
complish the objects of the corporation; and
further, the trustees of any university, college
or academy, may hold in trust any propertv
devised, or bequeathed, "or donated to such
institution, upon an^ specific.trust oonststent
with the objects of said corporation; also, when
anv number of persons shall have procured by
subscription, donation or devise, purchase, or
otherwise, the sum of $500 for the purpose of
establishing an academy, thev may become a
body corporate, &c. , &c., ana do all acts and
Uiings necessary for the promotion of educa-
tion and the general interests of such academy.
Time and the occasion will not permit as to
give more of this liberal and enlightened stat-
ute and of the Supplemental Acts passed in
August, 1852, and March, 1853. 2 Swan,aecs.
195, 196.

There is nothing in either of them in any
way interfering with the power of before exist-
ing coroorations, to become the trustees of char-
itS}\e devises and bequests for education, and
to hold them in perpetuity. There is rather a
disposition manifested to enlarge and confirm
their power to do so, and to give to other cor-
porations under the Act certainty and security in
the administration of such trusts. The hiSp^-
lature has succeeded in giving to corporati^is.
for the promotion of education, what the learned
gentlemen who brought this bill said were the
requisites of a corporation: lawful existence;
artificial capacity and perpetuity of existence:
and, we add, the unquestioned enjoyment of all
these privileges, which courts of equity have
said for more than two hundred years they were
entitled to, in the construction of devises and

1860.

Pbbin v. Cabby.

465-S08

gifts for charity, and* for the administration of
them.

It was conceded in the argument, that the
trusts in this will fall within the description of
public trusts or charitable uses, as recognized
in England since the Statute of 48 £lizabeth,ch.
4, notwithstanding that statute is not in force in
Ohio, and, in our opinion, never was. as we
shall show presently.

Charities had their origin in the great com-
mand, to love thy neighbor as thyself. But when
the Emperor Constantine permitted his subjects
to bequeath their property to the church, it was
soon abused; so much so, that afterwards. when
it became too common to give land to religious
uses, consistently with the free circulation of
property, the supreme authority of every nation
in !Europe, where Christianity prevaileo, found
it necessary to limit such devises by statutes of
mortmain.

In France, by the ancient constitutions of that
Kingdom, churches, communities, chapters, col-
leges, convents, &c., were not permitted to ac-
quire or hold immovable property. Dumou-
lin sur, 1st art., 51 De la Cou., Paris. This in-
capacity after a long time was relaxed, and they
were allowed to hold, by license of the King.

In Spain, the communities mentioned before
could neither acquire nor hold property, unless
by authority of the severely; out in England,
corporations had the capacity to take property
by the common law. Co. Litt. , 09. They were
rendered incapable of purchasing without the
King's license by a succession of statutes from
Magna Charta, 9 Henry III. to 9 Geo. II.

They are known as the Statutes of Mortmain ;
that is, as it was the privilege of anyone, be-
fore such statute restrained it, to leave his prop-
erty of every kind by testament to whom he
pl^ed, and for such purposes, charitable or
otherwise, as he chose; and the will was, in
every particular, administered according to the
testator*s intentions, sometimes by the courts of
common law, and at others by a court in chan-
cery, as may be seen from the cases in Duke and
other writers upon charities. The question,
then, under such a condition of the law in Ohio,
where there was no statute of mortmain, cannot
be in this case, whether chancery had such a
jurisdiction, or whether Ohio had adopted in
whole or in part the common law, but whether
Ohio, in the construction of her judicial system,
did not mean to give to those courts which were
to have equity jurisdiction cognizance of trusts
made by wills for charitable uses, as well as of
other trusts; and whether the ludges in Ohio
have not uniformly entertained it upon that
principle. We cannot be mistaken in the con-
clusion that they have done so from the cases
cited on both sides in the argument of this case,
the larger number of which we have verified
by examination.

And we are more confirmed in what has just
been said, for the English Statutes of Mortmain
were never in England supposed to have been
meant to extend to her Colonies, and were never
in force in those of them in America which be
came independent States, but by legislative
adoption.

First, it will be observed in all commentaries
upon those statutes they are termed local or po-
litical laws, meant to suppress a public mischief
and abuse in England. The Stat, of 48 Eliza-
See d4 How.

beth is entitled, "An Act to redress the misem-
ployment of lands, goods and stocks of money,
heretofore given to charitable uses." The mode
and manner for the enforcement of it in any
particular did not exist in any one of the En-
glish Colonies. There was not in either of them
a Lord Keeper or Lord, Chancellor, or any corre-
sponding officer to mature the regulations en-
joined by the Act for its enforcement. There
were not in the Colonies any abuses to redress
for the misemployment of lands, goods or money
heretofore given to charitable uses; further,
there were not then in an^ one of them those
religious institutions which the monarchs of
Europe deemed it politic to restrain from hold-
inelands.

The statute, after beginning with a statement
of the abuses to be controlled, declares that for
the redress of them it shall be the duty of the
Lord Chancellor or Lord Keeper of the great
seal for the time being, and for the Chancellor
of the Duchy of Lancaster for the time being,
to award commissions, &c., into all or any part
of the realm, for the purpose of executing the,
(&c., statute, and the realm or kingdom of
England, in statutory i)arlance, as well in the
time of Elizabeth as now, " meant the kingdom
over which her municipal laws or the common
law had jurisdiction, and did not include either
Wales, Scotland or Ireland, or any other part of
the King's dominions, except the territory of En-
gland only." 1 Bl. Com., sec. 4, p. 93, Wendell.

And in the same section, after having enum-
erated those dominions which had b^n sub-
iected by statute or otherwise to the laws of
England, and such as had not been, all being id-
jacent to England, Blackstone says; our more
distant plantations in America or elsewhere,are
also in some respects subject to English law.
But that must be linderstood with ver^ many
and very great restrictions. Such colonies carry
with them only so much of the English law as
is applicable to their own situation and the con-
dition of an infant Colony; such, for instance,
as the general rules of inheritance and of protec-
tion from personal injuries. Pp. 107, 108, mar-
ginal. But we are not left to inferences to estab-
lish the locality of the operation of the Statutes
of Mortmain to England, and that they never
had any force in the Colonies. The whole sub-
ject in all its generality was ably discussed and
decided in the High Court of Chancery in En-
gland some forty years since. In that case,
AttyGen. v. Stewart, 2 Mer., 148, the question
being whether the Statute of Mortmain, 9 Oeo.
II., extended to the Island of Grenada, in the
West Indies, it was ruled that it did not, and
that none of the English Mortmain Acts were of
force in the Colonies.

Without, then, a particular enactment for
such purpose, the Statute of 43 Eliz., ch. 4,
could never have been in force in Ohio. Nor do
we think it to be a point of judicial uncertainty
there, for we cannot find a decision in the courts
of Ohio directly declaring that it ever was.

The law was adopted in terms from the Stat-
ute of Virginia by the governor and judges of
the Territory. 1 Chase, 190. Whatever may
have been its validity in other respects, it did
not comprehend the Statute of Elizat)eth. For
though it was a remedial statute to correct ab-
uses, it was a restraining statute of the common
law right of every man to dispose of his prop-

709

4eiMS08

BxTFBSldE COUKT 09 TRB UnITBD StATBA. #

Dec. Tbuc.

erty, by will, as he pleased. The law taken from
Yirffinia for Ohio made statutes and acts of
Parliament in aid of the common law. which
were of a general nature, and not local to that
kingdom, of force in Ohio. It was not in aid
of the common law, but being reetrictiYe of it,
it should have, as to the places assigned for its
operation, a strict interpretation.

But whether we are right or not so. in re-
spect to the law adopted from Virginia, and
passed in the Territorial Leffislature of Ohio, it
is certain that in the year 1806 it was repealed;
and that since the Statute of Elizabeth has
had BO force in Ohio as a statute, though the

iudges of that State, without any assumption,
lave applied its principles to all cases of chari-
table devises as a part of chancery iurisdiction.
It certainly was right in them and a duty to
carry out the charitable intentions of a testator
by the same principles that his will was exe-
cuted in every other respect, when the Legisla-
ture was silent in respect to such devises, or
had given no other rule concerning them.

No more was done by them in Ohio than was
done in every other State in this Union where
the Statute of ^Elizabeth had not been adopted
by legislative enactment.

But in justice to the subject we cannot leave
it without saying that original chancery juris-
diction over charities existed in England, and
was exercised there, before the Statute of
Elizabeth was passed; also, that it has now be-
come an established principle of American
law, that courts of chancery will sustain and
protect such a gift, devise or bequest, or ded-
ication of property to public charitable uses,
provided the same is consistent with local laws
and public policy, where the object of the ^ft
is a dedication specific and capable of being
carried into effect according to the intentions
of the donor. In confirmation of this we refer
to the cases collected in Angell <& Ames upon
Corporations, private and aggregate, 6th edi-
tion, 182, 177, and from pages 170 to 180, in-
clusive.

And this court, in Vidal v. Mayor of Phila-
delphia, 2 How., 127, reviewed its opinion to
the contrary of what has just been said in the
case of The Bapt. Am. v. Hart, 4 Wheat., 1, and
admitted, whatever doubts had been expressed
in that opinion, that they had been removed by
later and more satisfactory sources of informa-
tion.

And in VidcWa case the court went on to
say: *'It may, therefore, be considered as set-
tled, that chancery has an original and neces-
sary jurisdiction m respect to devises and be
quests in trust to persons competent to take for
cliaritable purposes, when the general object
is specific and certain, and not contrary to any
positive rule of law."

2 Kent's Com., 287, 288, 4th ed.; Gibson v.
MeCaU, 1 Rich. (S. C.) Law, 174; AUyQen.
V. JoUy, 1 Uich. (S. C.) Law, 176 n,; Sohier
V. St. Paul*$ Church, 12 Met. (Mass.), 250;
BeaU V. /^Iw, 4 Ga., 404; MUlerY. ChiUenden, 2
Clarke (la.). 816: and WUlianu v. WiUiami,
Opinion by Judge Denio, 8 N.Y., 525.

We also refer to the opinion of Mr. JusUce
Baldwin, which led the way upon this question
of Jurisdiction in the United States in the will
of Sarah Zane in pamphlet, Cir. Co. in Penn-
svlvania, April Term, 1838; and to Mr, JusUee

710

Storjr's Essay in the Appendix to 3 Pet , 481 to
602, inclusive.

The same results have been announced by
the decisions in Ohio: MelrUyre Boor School
V. The Zanemlle Can. A Mfg. Co., 9 Ohio. 203,
does so. Lane, Ch. J., avoiding Uie discussion
of the extent of chanceir jurisdiction over
charities, independently of the statute, says:
But one of the earliest claims of eveiy ao^al
community upon its law-givers is an ade<}uate
protection to its property and institutiou^,
which subserve public uses, or are devoted to
its elevation, <&c. ; and, in a proper case, the
courts of one State might be driven into the
recognition of some principle analogous to that
contained in the Statute of Elizabeth as a nec-
essary element of our jurisprudence. But with-
out reference to these considerations, where a
trust is clearly defined, and a trustee exists
capable of holding the property and executing
the trust, it has never been doubted that chaiT-
cery has jurisdiction over it by its own inber
ent au^ority, not derived from the atatate, nor
resulting from its functions as parens pciina.
The same ruling was made afterwards in 15
Ohio, 593. and in 18 Ohio, 600, and the main
point in both of them could not have been de
cided without maintaining the jurisdiction in
chancery over charitable uses, independently
of the Statute of Elizabeth. The same may be
assumed of the case growing out of the will in
20 Ohio, 483. Inde^, it was assumed that no
case in Ohio of a charitable trust has been ju
dicially maintained, or could have been valid
under the universal admission that the Statute
of the 43 Elizabeth, ch. 4, was not in force in
Ohio, unless the courts there had acted from the
conviction that in such cases chancery had a
jurisdiction over them by its own authority.

We shall now consider the objections which
were made by the counsel for the appellants to
the validity of the devises and bequests of Mr.
McMicken, that the City of Cincinnati has not
the capacity to take them and to execute the
trusts of the will, and that no other trustee can
be appointed.

In our view, the answers to them from tfat-
opposing counsel were decisive. No incapac-
ity of the City of Cincinnati to take in this in-
stance can be inferred from its charter. It hjs
the power to acquire, to hold, and possets,
real and personal property, &c , Ac., and to
exercise such other powers and to have such
other privileges as are incident to municipal
corporations of a like character and degrW.
not inconsistent with this Act or the seoerai
laws of the State. Swan, 960. It was aomitttd
in the argument, that the section Just read coo
fers power upon the City to acquire and h<ti>i
real estate for the legitimate objects of the Cltj.
These objects are enumerated m many partJM:-
ulars directly connected with its powers m
govern the City; and in the nineteen sectkia*
following that cited, there is not a sentence «ir
word from which an inference can be m»dt
that the Legislature meant to deprive the Cut
of Cincinnati from taking and administerinie
charitable trusts. Indeed, such a course wouiii
have been inconsistent with the LegiaUturr f
caution in its enactments under the OunMitu
tion of 1851. It would be doing great inju^
tice to the Legislature even to suppose that it
meant, in passing an Act for the govenuneat

1860.

Pbrik v. Oahey.

465-56d

of corporations, under the provisions of the
Constitution, that it designed to enroach upon
that of the judiciary, or to alter the whole
power of chancery in respect to charitable
uses, and the long established practice of cor-
porations, private and municipal, to receive
them as trustees, and to administer them ac
cording to the Intention of donors. So far
from any intention to interfere with such a'
privileire in the City of Cincinnati, we infer
from previous and subsequent legislation that
it was to have an important agency in carrying
out the 6th article of the ^^^^^^i^^^^^n in re-
spect to education. We allade to the Act for
the better organization and classification of the
common schools of Cincinnati and Dayton,
passed in the year 1846 (Ohio Local Laws, 91),
and to that of the 27th January, 1858, both
now in force. In the first, the trustees and
visitors of common schools in the City of Cin-
cinnati, with the consent of the city council,
have the power to establish and maintain out
of any funds under the control of the trustees
and visitors, such other grades of schools than
those already established as they may deem ex-
pedient for such purpose. !l^urther. by the
68th sec. of the State School Law, Swan, 852,
passed in January, 1856, power is given to
Township Boards of Education, and their suc-
cessors in office, to take and hold in trust for
the use of central or high schools, or sub dis-
trict schools, in the township, any grant or do-
nation, or bequests of money, or other personal
property, to be applied to the support of such
public schools. Again, in Ohio Laws, 83.
March 26, 1856, it is declared that whenever
anyone gives lands or money for the endow-
ment of a school or academy, not previously
established, and shall not provide for the man-
agement of it, that the court of common pleas
shall appoint trustees with corporate powers.
That Act provides also for the management of
charities when the founders have not given di-
rections; and another Act (Swan, 193, 1856)
provides how colleges may be incorporated by
their own act, and now trustees of an endow-
ment may also become a corporation by their
own Act. These Acts have been cited to show
that Ohio, in her legislation, has made munic-
ipal corporations trustees for charity devises
and bequests, and that the management of
them is a duty. They also prove thai the
privilege to take them is one given and imposed
by law.

After a close examination of all the legisla-
tion of Ohio relating to corporations, and its
system of education, we have not been able to
detect any sentence or word going to show any
intent to alter the law as it stood before the adopt
tion of the Constitution of 1851, in respect to a
corporation receiving and taking, either by tes-
tament or donation, property for a charity, or
to prevent them from having trustees for the
execution of it according to the intention of the
donor. To take such pnvileges from them can
only be done by statute expressly, and not by
any implications by statutes, or from any num-
ber of sections in statutes analogous to the sub-
ject, containing directions for the management
of corporations. The law is, that where the
corporation has a legal capacity to take real or
personal estate, then it may take and hold it
upon trust in the same manner and to the same

Bee 24 How.

extent as private persons may do. It is true
that if the trust be repugnant or inconsistent
with the proper purposes for which it was cre-
ated, that may furnish a good reason why it
may not be compelled to execute it. In such a
case, the trust itself being good, will be exe-
cuted under the authority of a court of equity.
Neither is there any positive objection, in point
of law, to a corporation taking property upon
trust n«t strictly within the scope of the direct
purposes of its institutions, but collateral to
them, as for the benefit of a stranger or anoth-
er corporation. But if the purposes of the
trust be germain to the objects of the corpora-
tion, if they relate to matters which will pro-
mote and perfect these objects, if they tend
to the suppression of vice and immorality, to
the advancement of the public health and or-
der, and to the promotion of trade, industry and
happiness, where is the law to be found which '
prohibits the corporation from taking the de-
vise upon such trust in a State where the Stat-
utes of Mortmain do not exist, the corporatfion
itself having an estate as well by devise as other-
wisie? We Know of no authority which incul-
cates such a doctrine, or prohibits the execution
of such trusts, even though the act of incorpo-
ration may have for its main objects mere civil
and municipal government and powers. 2 How. ,
190. This court announced the same principle
again in the case of MeDorwgh v. Murdoch, 15
How., 867, with other and new illustrations, and
with direct reference to the capacity of a corpo-
ration to take such trusts, if within its general
objects, or such as were collateral or inci-
dental to its main purpose. There is nothing
in the Ohio Statute of Wills to prevent corpora-
tions from taking by devise. Much was also
said in the argument, denying the legality of
the trusts, in consequence of tne uncertainty of
the beneficiaries, and because the relatives of
the testator were to have the preference. As
to the first, white boys and girls make as dis-
tinctive a Btatus of a class who are to be the first
beneficiaries of the trust, and the words in the
86th section, that ** if any surplus shall remain,
Ssc., it shall be applied to the support of poor
white male and female orphans, neither of
whose parents are living, and who are without
any means of support, make as certain a de-
scription as could have been expressed.

It seems to us. now, that the objection rela-
tive to the condition of the beneficiaries is at
variance with the established primary rule in
respect to a charity, not only with reference to
the Statute of 48 Elizabeth, ch.4,but to a charity
under the common law. The answer is, that a
charity is a gift to a general public use, which
extends to the rich as well as to the poor.
Jones Y. Tfii2ZtV>i7M, 2Amb.. ch. 651. Generally,
devises and bequests having for their object es-
tablishments of learning are considered as inven
to charitable uses, under the Statute of Eliza-
beth, ^^-G^n. V. Earl of Lonsdale,! Sim., 105;
but that does not make a devise good to a college
for purposes not of a collegiate character, in-
tended chiefiy to gratify the vanity of the tes-
tator. And we cannot be mistaken, that a de-
vise to a corporation in trust for any person is
good, and will be effectuated in equity. 1 Bro.
Ch. Cas., 81. And a fortwri, a devise to a
charitable corporation, in trust for any other
charitable use, would be good. All property

711

552-^5?

SuFABlClt Ck>imT OF TttK UnTTBD STAfttl.

Dec. Tkrh.

held for public purposes is held as a charitable
use, in the legal sense of the term "charity."
Law Library, VoL LXXX., p. 116, Grant,
Corporations.

We will not pursue the subject further; for,
without having discussed either of the six ob-
jections made m the bill of the complainants,
or the points made by counsel in support of the
demurrer to the bill, numerically, Doth have
been under our examination ; for all were ap-
propriately in the argument of the cause, and
in this opinion we meant to decide all of them,
and have done so.

We cannot announce them moreexpressiyely
than they were urged in argument.

1. The doctrines founded upon the Statute
of 48 Elizabeth, ch. 4, in relation to chuitable
trusts to corporations, either municipal or i>ri-
yate, have been adopted by the courts of equity
in Ohio, but not by express legislation; nor was
that necessary to give courts of equity in Oliio
that Jurisdiction.

2. The English Statutes of Mortmain were
never in force in the Enelish Colonies; and if
they were ever considered to be so in the State
of Ohio, it must have been from that resolution
by the governor and judges in her territorial
condition; and if so, they were repealed by the
Act of 1806.

8 The City of Cincinnati, as a Corporation, is
capable of taking in trust devises and bequests
for charitable uses, and can take and adminis-
ter the devises and requests in the will of C.
McMicken.

4. Those devises and bequests are charities,
in a legal sense, and are valid in equitjr, and
may be enforced in equity by its Jurisdiction in
such matters without the intervention of legis-
lation by the State of Ohio.

5. McMicken's direction, in section 82 of his
will, that the real estate devised should not be
^ienated, makes no perpetuity in the sense for
bidden by the law, but only a perpetuity al-
lowed by law and equity in the cases of chari-
table trusts.

6. There is no uncertainty in the devises and
bequests as to the beneflcianes of his intention:
ana his preference of particular persons, as to
who should be pupils in the colleges which
he meant to found, was a lawful exercise of
his rightful power to make the devises and be-
quests.

7. The disposition which he makes of any
surplus after the complete organization of the
colfeges is a good charitable use for poor white
male and female orphans.

8. Legislation of Ohio upon the subject of cor-
porations by the Act of April 9, 1852, does not
stand in the way of carrying into effect the de-
vises and bequests of the will.

This cause was areued on both sides with
such learning and ability, that we feel it to be
onl^ right to the profession to acknowledge the
assistance given to us in forming our conclu-
sions; and our only regret is, that It should nec-
essarily have extended this opinion to a greater
length than we wished it to be.

We thaU direct the afflrmanee of the deeree,dia-
misting the bill, by the court below.

Cited-ttS U. ?., 312; 8 Woods, 4T8, 477; S9 Am.
Bep., eoe. 610 (1 MoArtbur, 641).

712

GEORGE W. DAY, BOWEN MATLOCK,
ISAAC H. FROTHINGHAM Aim GEO.
W. WARNER. Plffs, in Er„

W. A. WASHBURN Ain> JOHN A. KEITH.

(See S. C, U How.. 35E&-957.)

Chancery onlyyivee preference to erediiore havkig
tpecijic Uene; but wiU.tnthaut Judgment or «w-
eution, enforce pro rata dilution if tmetfund,
for benefit of ereditorSt among thorn.

The oourt of chanoery does not give anj specifle
lien to a creditor at large, aminst nls debtor, fur-
ther than he has acquired at law.

It is only when he has obtained a JudgineDt and
execution in seeking- to subject the property of his
debtor in the hands of third persons, or to reach

I>roperty not accessible to an execution, that a
egfU preference is acquired, which a oourt of
chancery will enforce.

Where creditors have not reduced their demands
to judgment and execution before seeking' relief
against a fraudulent assignment of the debtor, tbey
cannot set up any daim to a preference over the
other creditors or object to an equitable distribu-
tion of the assets among aU the creditors.

Where a specific fund has been assigned or
pledged for the benefit of creditors, chanoery upon
its own principles, distributes the fund pro rata
among all the creditors, unless preference is glren
in the pledge or asslgnment'of the fund.

If a bill is filed to enforce a trust, no judgment or
execution is necessary as preliminary steps to the
interposition of the oourt; but In that case the
complainants are not entitled to a preference,
where none is given to them in the trust deed.

Where the bill is filed to set aside the deed as
fraudulent, to defeat the preference given therein
to other creditors, the objection that the demands
of complainants had not been reduced to judgment
and execution before filing the biU, Is fatal to the
relief sought, if taken in time.

When such objection was waived, the court was
right in proceeding to make a ratable distzflmtloo
among all the creditors.

Submitted F^. SI, 1861, Bedded Mar. S, 1S61.

IN ERROR to the Circuit Court of the United
States for the District of Indiana.

The case is fully stated by the court.

Mes&n. WiUiam Henderson and K. W.
T]iompson» for plaintiffs in error:

Ist. Can the complainants, not being lodg-
ment creditors of Washburn, maintain this bul
in chancery to reach his equitable assets in the
hands of his assignee, to whom he has fraudu-
lently assigned them?

The bill avers that Washburn had no ml
estate upon which a judgment at law would be
a lien; that he had no personal property, what-
ever, subject to execution ; these facts are ad-
mitted by the answer. What, then, was to be
gained by the complainants first suing at law,
and obtaining a Judgment, and having an exe-
cution returned nuUa bona f It woulcT be doing
a useless thing. The law does not require a
par^ to do a useless thing.

We think the law well settled, "that if a
claim is to be satisfied out of a fund which is
accessible only by the aid of a court of chancery.
application may be made in the first instance to
that court, which will not require that the claim
should be first established in a court of law.

RueeeU y. ClarKe Exec , 7 Cranch, 69; (/Britn
y. CouUerj 2 Blackf., 421; PiaU v. St. Clair, 6
Ohio, 227.

2d. The other creditors of Waahbum, none
of whom were Judgment creditors, were not
necessary parties to the bill. If the object of

1860.

Day ▼. WASHdualf.

85^67

the bill had b^n to enforce the due execution
of the asaignment, then there would have been
some plausibility in making them parties. The
claim of the complainants being antagonistic to
the assignment, it was only necessary to make
the assignor and assignee defendants.

1 Dan. Ch. Pr.', 802; 8to. Eq. PI., 315, 316;
Burr, on Ass., 599; Edmeifton y. Lj/de, 1 Paige,
687; Bogers v. Bcwers, 8 Paige, 378, 879; BiU-
ler V. Jafray, 13 Ind., 504.

8d. The complainants contend that by filing
their bill to avoid the assignment they thereby
obtained a specific lien on the assets in the
hands of the assignee and were, under the law
of the case, entitled to be fully paid to the ex-
clusion of the other creditors whose equity is
not superior to complainants. It is a well es-
tablished rule in equity, " that when the equi-
ties are equal, that title which is prior in tune
shall prevail."

1 Story, Eq. Jur.,400.

This rule applies as well to a case like the
one before the court as to equities growing out
of conveyances. With regard to cases like this,
the general rule is laid down by numerous ad-
judications, that a creditor may file a bill in his
own name for his sole benefit, or he may file in
behalf of himself and all others who may be
entitled and may choose to come in. If he pro-
ceeds on his own account alone, and no lien has
been gained or can be acquired at law, he ac-
quires a specific lien by filing the bill, and is
entitled to priority over other creditors,

1 Am. Lead. Gas., 85; EdmeBton v. Lyde,
before referred to, 1 P^ge, 687; Coming v.
WhiU, 3 Paige, 567; Butler v, Jaffray, 13 Ind..
504; Famham v. Campbell, 10 Paige, 598-601;
Weed V. Pierce, 9 Cow., 733. 738; U, 8, Bank
V. Burke, 4 Blackf., 141; Miers v. ZanewOle
<fec„ Turnpike Co,, 18 Ohio, 197; Douglase v.
HueUm, 6 Ohio. 156: Wakeman v. Qnnw, 4
Paige, 38; RumUY. Lasher, 4B&Th„2S2; Burr,
on Ass.. 600, 601; Hulfb8 v. Bancroft, 4 Ind.,
888; 1 Kent, note to 2GS, 364.

Musrs, McDonald and Porter, for de-
fendants in error:

Some authorities state that where a creditor's
bill is filed to reach assets of a purely equitable
nature, it is not incumbent upon the creditor to
show that he had first obtained a judgment at
law. but it is believed that the better opinion is
the other way.

McEhoain v. WiUia, 9 Wend., 548; 1 Man.
Mich.. 446.

But where the assets are not of that nature,
and especially in all cases where the demand is
of a legal nature, the averment is indispensable.

Hendricks v. Robinson, 3 Johns. Oh., 396; 1
Am. Lead. Gas., 84, and numerous cases there
cited.

The complainants in the present case en-
deavor to dispense with this averment by an al-
legation that Washburn has no property upon
which a judgment or execution would be a lien.

But there are other averments in the bill
showing just the contrary. The property being
such that a judgment would have been a lien
on the real estate, and an execution on the per-
sonalty, the demurrer ought to have been sus-
tained.

Before the court proceeded to render a dedree
certain, other creditors of Washburn, whose
named appear in the record, presented a sup-

Bm 24 How.

piemen tal bill and applied upon motion to be
admitted as co-complainants, and to be per-
mitted to establish their claims and to partici-
pate equitably in the distribution of the assets.
The motion was granted. The court after-
wards found the assignment to be fraudulent
and void, and decreed that the moneys in the
hands of Keith should be distributed ratably
among the creditors who were parties to the
record.

Whether the decree, so far as it directs a
ratable distribution of the assets, was right or
not, is not now before the court. The appel-
lees do not and did not object to such ratable
distribution. The question, so far as relates to
that, is a question bistween the appellants and
their co-complainants, and the latter are not
made parties to the appeal. Of course, there-
fore, nothing affecting their interest will be ad-
judicated by this court.

7 Pet., 899; 16 Pet., 531.

If this view were not correct, still the appel-
lants cannot reverse that part of the decree. 1.
Because they do not assign for error, in their
brief or otherwise, that the court improperly ad-
mitted as complainants the other creditors. 3.
The decree was for the ratable distribution of
money so far as the appellants complain of it;
and the creditors, admitted as co-complainants,
were the first to aver specifically, that Keith had
moneys in his possession. So far, therefore, as
diligence is concerned in reference to the very
thing to which Uie decree applies, these second
complainants were more diligent tnan the appel-
lants. 8. In equity there is no preference be-
tween creditors.

Purdy V. Doyle, 1 Paige, 558; Codioise v.
GMston, 10 Johns., 507; MorriceY. Bank of Eng-
land, cases Ump, Talbot. 316; Robinson v. The
Bank, 18Ga., 108.

It is admitted that there are cases the other
way, but it is believed that the better opinion
coincides with that of Chancellor Walworth in
the case first cited.

Mr, Justice Nelson delivered the opinion of
the court:

This is an appeal from a decree of the Oir-
cuit Court of the United States for the District
of Indiana.

The bill was filed in the court below by two
mercantile firms, creditors of Washburn, against
him and the assignee of his property, for the
purpose of setting aside the assignment as
fraudulent against creditors, and that the prop-
erty might be applied in satisfaction of the com-
plidnants' demands. These demands were sim-
ple contract debts, not reduced to judgment.

The defendants demurred to the bill, and as-
signed, as the ground uf the demurrer, the want
of equity.

The court overruled the demurrer, and the
defendants answered separately, among other
things denying all fraud in the assigDmcnt.
Replications were filed to the answers.

In this stage of the case, the other creditors
of Washburn applied by petition to the court
to be made parties to the bill, charging fraud in
the assignment, and praying that it might be
set aside, and the property and effects of the
debtor be subjected to the payment of all his
debts, and be divided equafiy among all the
creditors.

71«

8d&-407

SUPRBIIB COXJBT 09 TBB UhITBD 8tATIB8.

Bea Tebm,

The court ordered that these petitioninjc
creditors, become co-complainants, and referred
the case to a master to take an account of what
was due to each of the complainants, which
account was duly taken, and a report made to
the court; and afterwards the defendant, Keith,
was ordered to bring into court the amount of
moneys admitted by him to be in his hands,
made out of the assigned property, amounting
to the sum of $3,437; and then, at a subsequent
day in the term, the court oyerruled a motion
made, on behalf of the two firms who filed the
bill, to have the moneys in court applied to
the payment of their debts in preference to the
other creditors; and adjudged the assignment
fraudulent as to creditors, and direct^ that
the whole fund be distributed ratably among
all of them, according to their respectiye de-
mands, and referred the case to a master to
make the distribution ; and, on his report, con-
firmed the same.

The case is before us on appeal by the two
firms who filed the bill, alleging for error the
refusal of the court to giye them preference in
the distribution of the assets.

The proceedings in the case haye not been
conducted with much regularity, but the prin-
ciples of equity goyemingthe rights of the par-
ties concerned are yery well settled, and the
application of them to the facts as presented
will satisfactorily dispose of it.

The court of chancery does not giye any
specific lien to a creditor at large, agunst his
debtor, furtfater then he has acquir^ at law;
for, as he did not trust the debtor on the faith
of such lien, it would be unjust to giye him a
preference oyer other creditof^, and uus defeat
2k pro rata distribution, which equity fayors,
unless preyented by the rules of law. It is only
when he has obtained a judgment and execu-
tion in seeking to subject the property of his
debtor in the hands of third persons, or to
reach property not accessible to an execution,
that a legal preference is acquired, which a
court of cnancery will enforce. 2 Johns. Oh.,
2»3;4 Johns. Ch., 691.

\ The two firms, therefore, who filled the bill,
the appellants here not haying reduced their
demands to judgment and execution before
seeking relief against the fraudulent assign-
ment of the debtor, are not in a situation to set
up any claim to a preference oyer tlie other co-
complainants, or to object to an equitable dis-
tribution of the assets among all the creditors.

Indeed, the principle upon which the bill
seems to haye been drawn, and is nov? sought
to be sustained, would preclude any preference
in fayor of the appellants — which is, that the
debtor's property, in the hands of the assi^ee,
constituted a fund for the benefit of creditors,
which a court of equity only could reach, and
hence that the creditor had a right to the inter-
position of the court without first obtaining a
judgment and execution. It is true, where a
specific fund has been assigned or pledged for
the benefit of creditors, and it is necessary to go
into a court of chancery to make a distribution
among them, the equitable lien of each credit-
or upon the fund lays a sufiicient foundation
for the interposition of the court. It will en-
force this equitable lien thus arising out of the
assignment or pledge for^the benefit of the credit-
ors, in the exercise of its own appropriate ju-

714

risdiction. But in all these cases.chanceiy.upon
its own principles, distributes the iuxi^pro rata
among all the creditors, unless preference is
giyenln the pledge or assignment of the fund.
In the pressnt case, as the assignment was
made to^eith.in trust for the benefit of credit-
ors, if the bill had been filed to enforce the
trust, no judgment or execution would have
been necessary, as preliminarjr steps to the in-
terposition of the court; but in that case the
appellants would not haye been entitled to a
preference, as none was giyen to them in the
trust deed, but the contrary.

For this reason, doubtless, the bill was filed
to set aside the deed as fraudulent, with a yiew
to defeat the preferences giyen therein to other
creditors. The objection that the demands of
the appellants had not been reduced to judg-
ment and execution before filing the bill, would
haye been fatal to the relief sought, if taken in
time by the defendants. It was waiyed, how-
eyer, l)oth as respected the appellant and the
other complainants; and as the court was left
unembarrassed by the objection, it was right in
proceeding to dispose of the property and ef-
fects of the debtor, and to make Uie proper ap-
plication of them; and as we haye seen, neither
of the creditors had acquired a preference st
law, the application in chancery, upon its own
principles, was a ratable distribution among all
the creditors, as decreed by the court below.

Decree aJ^rvMd.

8. C— 88 How.. 809.

Cited-«0 U. S. (2 Wall.), 196; 101 U. S., 091; 9
Ben., 16.

LESSEE OF ROBT. W. SMITH awd CAREY
W. BUTT, Plff. in Er„

WM. McCANN.

(See 8. C, 24 How., 896-407.)

In Maryland, ^ectment is the proper action to tnf
title to land»— -plaintiff must show a legal titU
— cannot recover on equitdbie titU-^pur-
ehaser under execution must show legal ti-
tle in debtor — naked legal title of trustee nM
sufkierU to recover on — pard evidence inad-
missible to enlarge estate of trustee — trwi
Jraudulent as to creditors — trustee bound bf
trusts.

In Maryland the distinction between coxnmoa
law and equitr, asknovrn to the BaipUsh law. hi^
been constantly preserved in Its system of Juris-
prudence ; and the action of ejectment is the ooiy
mode of trying: a title to lande.

In that action the lessor of the plaintiff moat
show a legral title ; he cannot support the action
upon an equitable title, nor is the defendant r^
quired to show any title in himself : and If the
plaintiff makes out a prima facie legral title, tbedt^
fendant may show. an elder and superior one in a
stranerer, and thereby defeat the action.

The purchaser under a >I. fa. when compelled to
brin^ an ejectment to obtain the possession, most
show a legal title to the land ; and. oonsequeiitJj.
must show thattheidebtor, at the time of the levy,
hadaleffallitie.

If the debtor had but an equitable title, the pu^
chaser is compelled to gro into equity, and obuia
a legal one before he can support an actiCMD of eji'ct-
ment against the party in possession.

It is not every legal interest that is made liable to
sale on a fi,fa. ; the debtor must have a tieMAdsi
interest in the property.

64 U.S.

1860.

Sicith's Lessbb y. McCakk.

898^07

Where the deed to the debtor only convesred to
him a naked legtil title as a trustee for others, he
took under it no interest that could be seized and
sold bv the Marshal upon a>l /a. ; and the deed of
the Marshal, therefore, conveyed no title to the
plaintiff.

Standing only upon this title, derived under this
deed, and showing no other title, the plaintiff cer-
tainly could not recover in an action of ejectment.

Evidence to prove that the trusts in the deed are
fraudulent, and that the deed was executed to hin-
der and defraud creditors, is not admissible to show
that the grantee had a beneficial interest in the
property, liable to be seized and sold for the pay-
ment of his debts.

Parol evidence is inadmissible to enlarge the es-
tate of a trustee, and to show that he had not
merely a barren legal title, but a beneficial interest,
which was liable for the payment of his debts.

If the evidence was admissible, the fraudulent
character of the trusts, as against his creditors,
could not enlarge his legal interest beyond the
terms of the deed.

As between the trustee and the centuis que trusU
the trustee can have no equity against the express
trusts to which he assented.

Where the ceatuU que trust are not before the
court, an inquiry into the validity of the trusts
cannot be made.

Argued Feb, 11, 1861. Decided Mar. 6, 1861.

IN ERROR to the Circuit Court of the United
States for the District of Maryland.

This was an action of ejectment commenced
in the court below by the present plaintiff in
error.

The case is fully stated by the court.

Messrs. Francis Lee Smith andH* Win-
ter Davis, for plaintiffs in error:

The plaintiffs in error insist that the instruc-
tion given to the Jury by the court below is er-
roneous.

McMeehen v. Marman, 8 Gill & J., 57, 73.
74. 75; JaeksanY. Ghraham, 8 Cai., 188: Jack-
^ son v. Scott, 18 Johns., 94; Jackson v. Parker,
9 Cow., 83; Jackson v. Walker, 4 Wend., 462:
Culbertson v. Martin, 2 Yeates, 443; Reming-
ton V. Linthicum, 14 Pet., 84; Young v. Algeo,
8 WatU, 223, 227; Jackson y. Bush, 10 Johns.,
223.

In ejectment against a defendant in an exe-
cution or those claiming under him, the pur-
chasiT of land at a sheriff's sale, having com-
plied with the terms of sale, is entitled as
plaintiff to recover the possession against said
defendant or his alienee, and the defendant
will not be permitted to controvert the title by
showing it to be defective, or by setting up a
better outstanding title in a third person.

Remington v. Linthicum, McMeehen v. Mar-
man, above cited, also Cooper v. OdOtraith, 3
Wash. C. C 546. 550; Jackson v. Chase, 2
Johns., 84; Jackson y. Pierce, 2 Johns., 221;
Jackson v. Deyo, 3 Johns., 422; Bayard y. Cole-
fax, i^ Wash. C. C..88; Cox, Digest, 272. sec.
41 ; Jackson v. Davis, 18 Johns., 7; Jackson v.
Van Slyek, 8 Johns.. 487.

The trusts in the deed from Brown and wife
to Richard D. Fenby being fraudulent and
void, the deed passed an absolute title to Fenby,
of the land in controversy.

2 Bac. Abr., Bouvier's ed., 298, 305; HugJies
V. Edwards, 9 Wheat.. 493.

The terms of trust, in the deed from Brown
and wife to Fenby, not beinc: established by
any evidence aliunde, the said trust can be con-
sidered as existing, if at all, only from the date
of the deed.

Hill, Trust., top. pa. 86, 87, note 2.

Bee 24 How. %

Messrs. J. Mason Campbell and James
Malcolm, for defendant in error:

In support of the correctness of the instruc-
tion, the defendant in error will rely on the
following points and authorities:

1. ThM action of ejectment being brought in
Maryland, and the common law of that State
being unchanged, the plaintiff must show in
evidence a legal title, to enable him to recover.
The Maryland Statute (1810, ch. 160), which
authorizes a sale on execution at law, of equi-
table estates, does not change an equitable into
a legal^ title, and a purchaser must assert his
rights in their appropriate form.

CarroU v. Norwood. 5 Harr. & J., 155; WU-
son V. Inloes, U Gill & J., 851; Hammond v.
Inloes, 4 Md., 138.

The deed, from Brown and wife to Fenby,

given in evidence, gave him but a dry legal ti-
e with no beneficial interest in himseliT and
so vested nothing in him which could be at-
tached or taken in execution upon process
against him.

Hmiston v. Nowland, 7 Gill. <&J.. 493.

The plaintiffs in error seek, by a charge of
fraud against the deed, to extinguish the trust.
But if the deed be void against creditors, the
Statute of Elizabeth avoids it in toto. If the
deed be wholly void, for fraud or any other
cause, then the foundation of the plaintiffs' ti-
tle fails, for without it Fenby had no estate.

Mackiev. Cairns, Hopk. Ch.. 405; 5 Cow.,
580; 17 Me., 369; 4 Yerg.'. 164; Goodhue v.
Berrien, 2 Sandf. Ch., 630; StaU v. Bank of
Maryland, 6 Gill & J.. 231.

Mr. Chief Justice Taney delivered the opin-
ion of the court:

This case comes up upon a writ of error to
revise the judgment of the Circuit Court for
the District of Maryland, in an action of eject-
ment, brought by the plaintiff in error a^inst
the defendant, to recover certain lands lymg in
that State.

The plaintiff, in order to show title to the
land claimed, offered in evidence, that Smith
& Butt, lessors of the plaintiff, having sold
cotton to Fenby <& Brother, of Baltimore, in
1857. drew on them for the sum due, and their
bills were protested to the amount of $18,708.
They, thereupon, brought suit on the 3d of June,
1857, and recovered judgment in the circidt
court on the 6th of April. 1858; and on the 10th
of the same month they issued a fieri facias,
which was.on the same day, levied by the Mar-
shal on the land in controversy; and after-
wards, on the 2d of September next following,
sold at public auction. At this sale the lessors
of the plaintiff were the purchasers, and re-
ceived from the Marshal a deed in due form.

The plaintiff further proved that a certain
Robert D. Brown was sdsed in fee of the land
at the times hereinafter mentioned, and read in
evidence a deed from him and his wife, dated
April 6th. 1857, whereby they conveyed it to
Richard D. Fenby. one of the defendants,
against whom the judgment was afterwards
obtained, stating at the time he offered it in
evidence, that he impeached the trusts in the
deed for fraud, ana intended to show such
trusts to be void against him.

The deed purports to be in consideration of
$7,800.60, and recited that the land was pur-

716

898-407

SuFBBicB CetmT 09 TBB TJkitbd Statbb.

Dec. Tbbm,

chased by Fenby, from Brown, on the 18th of
March, 1852, and then grants to Fenby, "as
trustee," the lands in question in fee simple, in
" trust" for the sole'and separate benefit of Jane
Fenby, the wife of the said Richard D. Fenbv,
for and during the term of her natural life, in
all respectQ as If she was a feme »ole, free from
all liability for the debts of her husband, and
from and immediately after the deatli of the
said Jane Fenby, in trust for such child or
children and descendants of a deceased child or
children of the said Jane, as she may leave liv-
ing at the time of her death. Such child, chil-
dren, and descendants, to takeo^ stirpes.

The deed gives authority to Fenby to sell and
dispose of any part of the trust property, and to
invest the proceeds in safe securities upon the
same trusts.

The plaintiff further offered evidence tending
to prove that Fenby was hopelessly insolvent
when this deed was made, and that he was in
possession of the land from the time he pur-
chased it in 1852.

The defendant (McCann) then read in evi-
dence a deed from Fenby to him, dated March
23d, 1858, purporting to be made in execution
of the power conferred by the trust deed, and
conveying the property in fee simple in consid-
eration of $22,000.

And the plaintiff thereupon offered evidence
tending to show that this deed was intended to
cover tne previous fraud of the one to Fenby;
that McOann was privy to this design, and co-
operated in it; that he paid no money; and that
notwithstanding this deed, Fenby continued in
possession after the land had been advertised
for sale by the Marshal, and that the possession
was delivered to MoGann only a few days be-
fore the sale was actually made.

The defendant offered evidence for the pur-
pose of rebutting the charge of fraud against
Fenby and himself, and upon the whole testi-
mony as offered, several instructions to the lurv
were moved for by each of the parties, which
were all refused, and the followmg instruction
given by the court:

•' The deed from Robert P. Brown to Rich-
ard D. Fenby, of the 6th of April, 1857, con-
veyed only a naked legal interest to said Fenby,
which could not be levied on and sold under a
fl. fa. issued on a Judgment against him, he
having no beneficial interest therein. And as
the plaintiff, to sustain this action, has offered
the said deed in evidence, and as without it
there is no evidence of any legal title whatever
in said Fenby at the date of the levying of
said fi. fa,, or at any other time, the plaintiff
cannot recover in this action."

As this instruction disposed of the case, it is
unnecessary to state at large the prayers offered
by the respective parties, or the testimony upon
which the^ respectively relied to prove or dis-
prove the imputations of fraud.

In discussing the question thus presented by
the decision of the court below, it is proper to
state, that in Maryland tlie distinction between
common law and equity, as known td the En-
glish law, has been constantly preserved in its
system of jurisprudence; and the action of
ejectment is the only mode of trying a title to
lands. And in that action the lessor of the
plaintiff must show a legal title in himself to
the land he claims, and the right of possession

under it, at the time of the demise laid In the
declaration, and at time of the trial. He cannot
support the action upon an equitable title, how-
ever clear and indisputable it may be. but must
seek his remedy in chancery; nor is the defoid*
ant req^uired to show any title in himself, and if
the plaintiff makes out ti prima fade l^gal title,
the defendant may show an eloer and sapmor
one in a stranger, and thereby defeat the action.

The law upon this subject is briefly and
clearly stated by the Court of Appeals of the
State, in 11 Gill & J., 858, and 4 Md., 140, 173.

We state the law of Maryland upon this sub-
ject, because very few of the States have pre-
served the distinction between legal and equi-
table titles to land. And in States where there
is no court of equity, the courts of common law
necessarily deal with equitable interests as if
the^ were legal, and exercise powers over them
which are unknown to courts of common law,
where a separate chancery Jurisdiction is es-
tablished. Cases, therefore, decided in States
which have no courts of equity, as contradis-
tinguished from courts of common law, can
have no application to this case so far as trusts
or any other equitable interest is involved. And
even m States where the chancery Jurisdiction
has been preserved, the decisions of their re-
spective courts do not always harmonise in
marking the line of •division between law and
equitv. And as the title to real property,
whether legal or equitable, and the mode of as-
serting that title m courts of justice, depend
altogether upon the laws of the State in which
the land is situated, cases like that now before
the court are questions of local law only, in
which we must oe guided by the decisions of
the state tribunals.

Since the passage of the Act of Oeorge II. ,
which made land in theAmerican Colonies liable
to be sold under a fi. fa. issued upon a Judg-
ment in a court of common law, the process of
extent has fallen into disuse, and is regarded
as obsolete in Maryland. But this statute did
not interfere with the established distinction
between law and equity, and an equitable inter-
est could not be seized under a fi. fa, until
the law of Maryland was in this respect altered
by an Act of Assembly of the State in 1810.
But this law does not convert the equitable in-
terest into a legal one, in the hands of the pur-
chaser. He buys precisely the interest which
the debtor had at the time the execution was
levied; and if he purchased an equitable inter-
est and desires to perfect his title, he must go
into equity, where the court will decree a con-
vevance to him from the holder of the legal
title, if he shows that the debtor was entitled
to It at the time of the levy.

But the Statute of deorse II. which author-
ized the sale of lands under a fi.fa., did not
authorize the sheriff to deliver them, nor the
court to issue the writ of hab. fat. pass, nptm
the return of the process. And the result of
this was, that the purchaser was compelled to
bring an ejectment to obtain the possession, in
which, as we have already said, he must show
a legal title to the land; and, consequently, must
show that the debtor, at the time of the levy, hsd
a legal title, and such a title as was subject to
seizure and sale under the fieri facias. And if
the debtor had but an equitable title, the pur-
chaser was compelled to go into equity, and ob-

1860.

Ex Parts Eentuckt y. Dennison.

66-110

tftin a legal one before he could support an
action of ejectment against the party in posses-
sion. A more summary process in certain cases
has been since proviaea, by a law of the State
passed in 1825. But up to that time the princi-
ples above stated were the settled law of the
8tate; and remain so, except in so far as they
are altered by that Act of Assembly. It is un-
necessary to state the provisions of that Act,
because the plantiff did not proceed under it
He has resorted to the action of ejectment to
obtain possession, and cannot recover, unless he
can show a legal title to the premises. It is not,
however, every legal interest that is made liable
to sale on a^. fa. The debtor must have a ben-
eficial interest in the property. And in HoutHon
Y. Netcldni, 7 Gill & J., 498, where a party had
sold the land to another honafde, but had not
conveyed the legal title, the court held that the
title remaining in the vendors was a barren legal
title, in trust for the purchaser, and could not
be sold for the payment of his debts. And a still
later case, Matihewi v. Ward, 10 Gill & J. .443,
451, 452, where land had been conveyed to a
trustee,in trust for third per8ons,and the cestuis
que inut had died without heirs, the court de-
cided that the land escheated to the State, al-
though the heirs of the trustee to whom the
legal estate was conveyed were still living, and
said that ** the rights of such trustee, who is a
mere instrument, are treated with no respect,
and the State deals with the property as her
own."

We proceed to apply these principles to the
case before us. The deed toFenby, in plain and
unambiguous words, conveyed to him a naked
legal title; he took under it no interest that
could be seized and sold by the MureOial upon
a fi. fa.; and the deed of the Marshal, therefore,
conveyed no title to the lessors of the plaintiff.
8tandmff onlv upon this title, derived under
this deed to FenbV, and diowing no other title,
be certainly could not recover in an action of
ejectment.

But the plaintiff offers evidence to prove
that the trusts in the deed are fraudulent, and
that Fenby purchased the land and procured the
deed from Brown in this form.in order to hinder
and defraud his creditors. And he offers this
proof to show that Fenbv had a beneficial inter-
est in the property, liable to be seized and sold
for the payment of his debts.

The proposition to enlarge or change the legal
estate of the grantee in a deed, by parol evi-
dence, against the plain words oi the instru-
ment, is without precedent in any court of com-
mon law. And in the case of Remington v.
LinthieumM Pet., 84; relied on by the plaintiff,
the evidence was offered, not to change the estate
limited in the grant, but to show that the grant
was fraudulent and utterly void, and conveyed
no interest whatever to the ntmtee named in it
The party offering the evidence did not claim
under that deed, but against it And if, in this
case, the evidence was offered for a like pur-
pose, and the deed proved to be fraudulent and
Yoid, it would defeat the plaintiff's action in-
stead of supporting it

He does not, however, offer the parol evidence
for this purpose, but offers it to enlarge the es-
tate of Fenby, and to show that he had not
merely a barren legal title, but a beneficial in-
terest, which was liable for the payment of his

See 24 How.

debts. But if the evidence were admissible, we
do not preceive how the fraudulent character
of the trusts, as against his creditors, could en-
large his legal interest beyond the terms of the
deed. It is true he paid the money for the
property. And if this circumstance could be
supposed to create a resulting trust for the bene-
fit of Fenby, it would be a mere equitable right
exclusively within the jurisdiction of a court of
chancery, and a court of common law could
neither enforce it nor notice it; and consequent-
ly it would not be a title upon which an action
of ejectment could be maintained. But it ob-
viously is not a case to which the doctrine of
resulting trusts can be applied ; for, as between
Fenby and the eestuis que trust, he can have no
equity against the express trusts to which he as-
sented, and which, indeed, according to the
plaintiff's allegation, he procured to m made.
And when the deed is offered in evidence by the
plaintiff , in order to derive to himself a legal title
under it, the interests and estates thereby con-
veyed cannet be enlarged or diminished bv
testimony dehor%\ii<^ deed. The deed must speak
for itself.

If these trusts are fraudulent, the lessors of
the plaintiff have a plain and ample remedy in
the court of chancery, which has the exclusive
iurisdiction of trusts and trust estates. In that
forum all of the parties interested in the con-
troversy can be brought before the court, and
heard in defense of their respective claims. But
as the case now stands, the only interest which
the plaintiff seeks to impeach is that of the
centuis que trust; yet they are not before the
court, nor can they, by any process, be made
parties in this ejectment suit, nor even be per-
mitted to make themselves parties if they de-
sired to do so, and cannot have an opportunity
of adducing testimony in defense of their rights.
Under such circumstances, an inquiry into the
validity of these trusts would not only be in-
consistent with the established principles and
Iurisdiction of courts of common law, but also
inconsistent with that great fundamental rule
in the administration of justice, which requires
that evervone shall have an opportunity of de-
fending his rights before judgment is pro-
nounced against him.

I7i£ judgment of the eirewU court is, therefore,
(\fflnned.

Cited— 1 McLean, 647, 91 U, 8., 861.

Ex parte In the Matter op THE COMMON-
WEALTH OF KENTUCKY, one of the
United States of America, by BERIAH
MAGOFFIN, Governor, and the Executive
Authority thereof, BetUioner,

WILLIAM DENNI80N, Governor of the

State of Ohio.

(See 8. C, U How., 66-110.)

NoTB.— Mandamus, uhen wiU issue. See note to
M'auny ▼. Silliman, 15 (7. S. (e Wheat.)* 369. Extra-
dition of persons accused of crime, on demand of
foreign oovemments.

The surrender of f agitives f rem Justloe ashe-
tween the States depends on art. 4, ace. 2, of the

717

66-110

SUFREME CQUBT OF THB UnITSD StATBS.

Dec. Tshm,

JurisdieHon of this court — toJien conferred by the
Constitution, may be exercised mthout further
Act of Congress — whjen State is a party, suit
may be in name of the goternor — mandamus —
delivery, by one State^offugiti'oesfrom another—
constitutional provisions in regard to — what of-
fenses they include — tJie right is absolute — prac-
tice— Act of 1793 — executive certificate conclu-
sive— duty to deliver — no power to coerce gover-
nor.

This oourt may exercise its original Jurisdiction
in suits against a State, under the auttiority con-
ferred by the Constitution and existing Acts of Con-
gress.

In ail cases where original Jurisdiction is given
by the Constitution, this court has authority to ex-
ercise it without «ny further Act of Congress to
regulate its process or confer Jurisdiction, and the
court may regulate and mold the process it use8,in
such manner as in its Judgment will best promote
the purposes of Justice.

Where the State is a party, plaintiff or defendant,
the governor represents the State; and the suit may
be, in form, a suit by him as governor In behalf of
the State, where the State is plaintiff ; and he must
be summoned or notified as the o£Bcer representing
the State, where the State is defendant.

The writ of mandamu» does not issue from or by
any prerogative power, and is nothing more than
the ordinary process of a court of Justice, to which
everyone is entitled where it is the appropriate
process for asserting the right he claims.

The words (in the u . S. Constitution as to delivery
by one state of fugitives from another) ** treason,
felony, or other crime," embrace every act forbid-
den and made punishable by a law of the State.

The word '^crime" of itself includes every offense
from the highest to the lowest in the grade of of-
fenses, and inoludes what are called " misdemean-
ors " as well as treason j|nd felony.

History and reason for this article in the Consti-
tution, stated.

It included, and was intended to include, every
offense made punishable by the law of the State in
which it was committed, and gives the right to the
executive authority of the State to demand the f u-
flrltive from the executive authority of the State
in whiob he is found.

The right given to "demand** implies that it is an
absolute right; and there is a correlative obligation
to deliver, without any reference to the character
of the crime charged, or to the policy or laws of the
State to which the fugitive has fled.

The executive authority of the State is not au-
thorized by this article to make the demand, unless
the party is charged in the regular course of Judi-
cial proceedings.

The executive authority of the State upon which
the demand is made, should be satisfied by compe-
tent proof that the party is so charged. The pro-
ceeding, when duly authenticated, u his authority
for arresting the offender.

The duty of providing by law the regulations nec-
essary to carry this compact into execution, is de-
volved upon Congress.

The Act of 1793, February 12th, as far as relates to
this subject, recited.

The Judicial acts which are necessary to authorise

the demand are plainly specified in the Act of Cod-
gress ; and the certificate of the executive author-
ity is made conclusive as to their verity when pre-
sented to the Executive of the State where the fugi-
tive is found.

He has no right to look behind them, or to ques-
tion them, or to look into the character of the
crime specified in the Judicial proceedings. The
duty which he is to perform is merely ministerial.

That he must inquire and decide who is the par-
son demanded, is not a discretionary duty up<ni
which he is to exercise any Judgment, but is a mere
ministerial duty.

Whether the charge is legally and aufllclently laid
in the Indictment is a Judicial question to be de-
cided by the courts of the State in which the crtme
was committed, and not by the executive authority
of the State upon which the demand is made.

The Act of Congress declares, that ** it shall be
the duty of the executive authority of the State,"
to cause the fugitive to be arrested and secured,
and delivered to the agent of the demanding State.

The words " it shall be the duty *' were not used
as mandatory and compulsory, but as dedanuory
of the moral duty which this compact created.

If the governor refuses to discharge bis duty,
there is no power delegated to the General Govern-
ment, either through the Judicial Department or
any other department, to use any coercive means
to compel him.

Argued Feb, 20, 1861. Decided Mar. U, 186L

ON PETITION for a mandamus, or for a rule
on William Denoison, the Governor of Ohio,
to show cause why a mandamus should not be
issued by this court, commanding him to cause
Willis Lago. a fugitive from Justice, to be de-
livered up to be removed to the State of Ken-
tucky, having jurisdiction of the crime with
which he is charged. The petition was filed
and the motion for mandamus, or for a rule to
show cause made by Mr. Thomas D. Monroe, Jr.

The court ordered that the motion be set down
for argument three weeks thereafter, and that
a copy of the order and petition and exhibits be
seryed on the Governor of Ohio. The petition
of the Commonwealth of Kentucky by Beriah
Magoflin, Governor, filed as above, set forth
suMtantially the following state of facts:

The Grand Jury of Woodford County, Ken-
tucky, indicted ^Villis Lago under an Act of
the State of Kentucky which became a law July
Ist, 1S52, and which is still in force in Ken-
tucky, which is as follows:

Sec. 1. If any free person, not having hiwfnl
or in good faith a color of claim thereto, shall
steal or shall seduce or entice a slave to leave
his owner or possessor, or if he shall make, or
furnish, or aid. or advise in the making or fur-
nishing a forged or false pass or deed of eman-
cipation or other writing purporting to liberate
a slave, or if in any manner he aid or aasisi a

Constitution of the U. S. As between the United
States and foreign governments, the U. S. has al-
ways declined to surrender criminals unless bound
by a treaty to do so. International law does not
require it. Wheat. Int. Law., 171 ; 1 Op. Atty-Oen.,
510; 1 Kent*s Com., 39, n. ; Hurd. Hab. Corp., 675; 2
Op. Atty-6en., 359 ; Case of Jose Ferreira dos San-
tos, 2 Brock. Marsh., 492; U. 8. v. Davis, 2 Sumn.,
482; Matter of Metzger. 6 How., 176; 6 Op. Atty-
Gen., 85; 1 Op. Atty-Gen., 68 ; 3 Atty-Gen., 661 ; 7
Op. Atty-Gen., 536.

To authorize arrest and removal from the State or
country, it must appear on the application that the
crime was committed in the State or country from
which the requisition proceeds. Ex parte Smith, 3
McLean, 121 ; 8. C, 6 Law. Rep., 57 ; 8 Op. Atty-Gen.,
215: 1 Op. Atty-Gen., 83 ; 8 Op. Atty-Gen., 306 ; case
of Vojrt, 14, Op. Atty-Gen., J»l.

No State can deliver up fugitive, to foreign gt)v-
emment. 8 Op. Atty-Gen., 550 ; Holmes v. Jenni-
son. 30 n. 8. (14 Pet.), 540.

Nor can state courts interfere with the surrender.

718

Marshal may disregard their prooen. 6 0p. Atty-
Gen.,227, 237, 270, 2W, 466, 718 ; 7 Op. Atty-Gen^ 4HS.

Requisitions should issue from supreme politici]
authority of demanding State and be addressed to
Secretary of State. 8 Op. Atty-Gen., 240 ;. 4 Op. Atty-
Gen., 201 ; 7 Op. Atty-Oen., 6; 8 Op. Atty-Qea., 49.

It need not be founded on an indictment or on a
warrant issued on one. British Prisoners, 1 Wood.
2 M., 66 ; In Re Thomas, 12 Biatchf ., 970.

In complaint for warrant of extraditlon,tbe crime
must be dearly set forth and facts oonstitutinjr it
stated. It n6ed not aver personal knowledge. Tn
Re Farez, 7 Biatchf., 84 ; 7 Blatohf ., 34m 401 : 2 Abb.
U. 8., 346 ; 40 How. Pr., 107 ; Ex parte Van Hoveo.
4 Dill., 411 ; 22 Int. Rev. Roc., 217.

No person will be surrendered to a f oralga powvr
where the United States has jurisdiction to punish
him for the oflT ense charged. Op. Atty-Gen.^ : BL>p.
Atty-Gen., 215, 300; In Re Vogt, 18 Int. Bev^Bec lA.

Court will not revise decision of oomraisBioner oo
the question of fact as to criminality of aocuaed. or
as to weight of evidence. In Be Stupp, ti Biatchf..

66 U. ».

18G0.

Ex Pabtb Eentuckt v. Dbnkibon.

66-110

slave to make his escape or attempt to make his
escape from such owner or possessor, he shall
be confined in the penitentiary for a period
of not less than two nor more than twenty
years. /

Sec. 2. A free person convicted of an attempt
to persuade or entice away a slave from the serv-
ice of his master or owner or the person in
possession of the slave, or if convicted of the
attempt to persuade or induce hy any means a
slave to run away from his master or owner or
person in possession of him. shall be confined
in the penitentiary for a period not less than
two years nor more than twenty-five years.

February 10th. 1860, Beriah MagofBn, Gov-
ernor of Kentucky, made demand upon Will-
iam Dennison, the Governor of Ohio, for the
person of said Willis Lago, as a fugitive from
justice, the said Lago having fled from Een-
tuckv after the commission of the alleged crime,
and being found in the State of Ohio, to be de-
livered up and removed to the State of Ken-
tucky, having Jurisdiction of the crime. This
demand was accompanied by a copy of the
indictment above mentioned. One William S.
Manson was appointed agent of the executive
authority of Kentucky to receive the said fugi-
tive. Said Manson duly presented the above
demand and copy of indictment to the Govern-
or of Ohio.

Governor Dennison referred the matter to the
Attorney-General of Ohio, and after receiving
the opinion of the Attornev-Gteneral, he refused
to deliver up the fugitive Lago, and transmitted
to the Gk)vernor of Kentuckv, as his reason
therefor, the opinion of the Attorney- General
of Ohio. In this opinion the Attorney-General,
after stating that the offense was not treason or
felony, though it was a crime under the law of
Kentucky, went on to say that the offense
charged was not a crime in Ohio, nor was it an
offense affecting the public safety, nor was it
Tnalurn in se. He stated as his opinion that the
rule which should govern cases like the present
was that which " holds the power " (that is, the
power of delivering up fugitives from justice
from another State on the demand of the Exec-
utive of that State), *' to be limited to such acts
as constitute either treason or felony by the
common law, as that stood when the Constitu-
tion was adopted, or which are regarded as
crimes by the usage and laws of all civilized
nations." He also added, that even in such cases
the power of the Executive of a State to deliver
up fugitives from justice was only to be exer-

cised in accordance with a sound legal discre-
tion. Governor MagofQn replied to the letter
of the Governor of Ohio, transmitting the opin-
ion of the Attorney- General, at considerable
length, criticising that opinion and stating, as
the true doctrine, that it was for each State to
determine for itself what were or were not
crimes within the meaning of the Constitution
and the Acts of Congress, and that the execu-
tive of the State called upon to deliver up the
fugitives had no discretion in the matter.

Governor Dennison made no reply to this let-
ter of Governor Magoffin, but in the language
of the petition " still fails and refuses, in viola-
tion of his legal obligation under the Constitu-
tion and laws of the united States, and of the
rights and dignity of the Commonwealth of
Kentucky, to cause such fugitive from justice,
Willis Lago, to be arrested and delivered to
said agent, William S. Manson, to be removed
to the State of Kentuckv, having jurisdiction
of the crime with which he is charged.

Upon the above state of facts, the application
for mandamuB came up for argument.

Messrs. Cooper, H. Marshall, J. W.
SteTenson, Crittenden and Thos. B.
Monroe, Jr., in support of the motion.

The extradition of Lago has been duly de-
manded by the €k>vernor of Kentucky from
the Gk)vernor of Ohio, but the latter '* refused
and still refuses " to surrender Lago, and this
refusal, it is insisted, is a '* violation " by the
Governor of Ohio "of his legal obligation
under the Constitution and lawsof the United
States." Hereupon application is made in the
name of the *' Commonwealth of Kentucky to
the Supreme Court of the United States, pray-
ing it to issue, as an act of original iurisdlction,
the writ of mandamus against William Denni-
son, Governor of Ohio, compelling him to de-
liver up said Lago."

I. The Commonwealth of Kentucky is, prop-
erly, the plaintiff in this case.

Tapping on Mandamus^ 289.

The duty prescribed by the Constitution and
law was to have been performed bj the defend-
ant, Dennison, as the officer wieldmg the exec-
utive authority of the State of Ohio. He is,
therefore, the proper person against whom to
institute the proceedings.

II. Is mandamvs the proper remedy? It has
been used since the days of Edward 11. in En-
gland, and has been the suppletory police power
of the kingdom.

See Tapp. on Mand., 5-30; Cowp., 378, 2

501 : In Re MacdoDDell, 11 Blatchf., 170; Matter of
Vandervelfen, 14 Blatchf .. 137 ; Matter of Wahl, 15
Blatcbf ., 334 ; Matter of Wiefrand, 14 Blatchf., 370.

Extradition proceedinp-s do not involve, in their
nature, the lig-ntto accused not to be prosecuted
upon any other charge than that upon which his
extradition is asked. U . S. v. Lawrence, 18 Blatchf.,
2»5.

Persons may be surrendered under a treaty made
after crime was committed and after he came to the
U ■ S. He has not acquired a right of asylum. In Re
Giacomo, 12 Blatchf., 391.

The President may decline to surrender even
after accused has been held and court has refused
to dlHcbargre on haheofn corpus, on ground case is not
within treaty, or for want of sufficient evidence.
In Re Stupp, 12 Blatchf., 501.

As to the offenses for which extradition may be
bad, see the various treaties and the following de-
cisions. 8 Op. Atty-Gen., 106 ; 7 Op. Atty-Gcn., 642 ;
e Op. Atty-Gen:, 85, 431, 642, 761 ; Matter of Metzger,
5 N. T. liOg. Obs.,83; Gibson's case, 12 Op. Atty-

gee 24 How.

Gen., 320; Deserter's case, 12 Op. Atty-Gen., 463;
Farez' case, 2 Abb. U. S., 846 : 7 Blatchf., 846 ; 40 How.
Pr., 107; In AeStupp, 11 Blatchf., 124.

Proof of criminality should be full enough before
magistrate to warrant commitment for trial. Ex
parte Kaine 8 Blatchf.. 1 ; U. S. v. Warr.3 N. Y. Leg.
Obs., 346 ; Matter of Heilbronn, 12 N. Y. Leg. Obs.,
65 : 4 Op. Atty-Gen., 201, 830; In Re Kelley, 2 Low.,
389. In Re Macdonnell, 18 Int. Rev. Uec, 11 ; In Re
Farez, cited above.

Inquiry will not be into grade of guilt. In Re
Palmer, J8 Int. Rev. Rec., 84.

As to the evidence to be produced and its authen-
tication and the proceedings before magistrate or
oommiesioner, see Ex parte Ross, 2 Bond, 252 ; in Re
Heinrich, 5 Blatchf., 414; In Re Dugan.2 Low., 367 ;
In Re Macdonnell, 11 Blatchf., 170 ; In Re Stupp, 12
Blatchf., 601; In Re Farez, cited above; In Re
Thomas, 12 Blatchf., 370.

Alleged fugitive from Justice may be arrested a
second time on a new complaint. 6 Op. Atty-Gen.,
691.

719

66-110

BtnrBBlCB COUBT OF THB UKITBD BtATBS.

Due. Terv,

Bam. A C, 198, Burrows. 1265. 1268; 15 East.
135; 8BI.. Ck)in., 110.

In this court it is ackuowledged as an action,
a case, rather than as a '* prerogative writ."

12 Pet., 614; 2 Pet.. 450.

It is not by the office of the person to whom
the writ is directed, but the nature of the thmg
to be done, that the propriety of issuing a man-
damus is to be determined.

1 Cranch, 170; 8 How.. 99.
' There is no remedy for the grievance inflicted
on the 8tat« of Kentucky by the refusal of €k>v-
emor Dennison. unless the mandamus applied
for will lie. If mandamus will lie in any case
where the Supreme Court exercises original
jurisdiction, all considerations and all conditions
concur to point it out as the proper remedy in
this case; for,

1 . The duty to be performed is single, simple,
only ministerial, and public in its nature and
office.

2. The party directed to perform it is cer-
tainly named.

8. No other adequate remedy exists or is pre-
scribed by law.

4. The duty is distinctly prescribed by the
Constitution and the Act of 1798.

5. The office held by Mr. Dennison does not
shield him from the performance; "it is the
nature of the duty which determines the pro-
priety of mandamus as a remedy."

The Supreme Court of the United States has
never adjudicated the question of this remedy
as now it is presented.

In U. 8, V. Lawrence, 8 Dall., 58 (A. D.
1795). this court was applied to as a court of
original jurisdiction and it entertained the juris-
diction. The case was disposed pf on the point
that the duty of Judge Lawrence involved the
exercise of discretion.

In Marhury v. Madison, 1 Cranch, 75. the
mandamus was refused because the Act of
1789 was unconstitutional in so far as it dis
turbed the constitutional distribution of the
judicial power of this court. The application
was to this court in its original lurisdiction,
whereas the case belonged to'it only under its
appellate jurisdiction.

In Mclntire v. Wood, 7 Cranch. 504. the point
was as to the power of the Circuit Court of the
United States, and the same remark applies to
McClung v. dOUman, 6 Wheat.. 600.

Ex parte Boberts, K Pet.. 216. and Ex parte
Davenport, 6 Pet.. 664, were applications to
control the judge of an inferior court by man-
damus, which was refused because of dfie dis-
cretion the inferior officer had a right to exer-
cise. Ex parte Bradstreet, 8 Pet.. 588; Ex
parte Story, 12 Pet.. 889. were cases addressed
to this court in the exercise of its appellate ju-
risdiction; so was the case of KendaU v. the
U, 8. , 12 Pet. , 52&-655. Ex parte Outhrte, and
all the rest of the cases of the applications for
mandamus, have been to this court as an appel-
late court.

The judicial power of the United States is
vested by the Constitution in the Supreme
Court ana in such inferior court as Congress
may from time to time establish. This power
' ' shall extend *' to a number of classes of cases,
among which is " all cases in law or equity aris-
ing under this Constitution, the laws of the

7«Q

I United States,** Ac., &c, and within the enum-
erated classes "in all cases in which a State shall
be a party, the Supreme Court shall have orig-
inal jurisdiction.*'

It is respectfully submitted, that under these
constitutional grants of power and jurisdic-
tion, this court may debUo jusUHm, entertain
the application for mandamus while a State is
a party, and this without resort to Uie act of
Concress distributing the means of enforcing
the jurisdiction. The judicial power, so far ss
this jurisdiction of the court is concerned, is
vested by the Constitution. It would neither
remain dormant nor would it expire, though
the legislative power had never passed a law tn
authorize certain processes to assert such juris-
diction. We adopt the views t«ken by tike
counsel in the case of The U. 8. y. Piders, 8
DalL, 126.

If mandamus would then be granted by the
court of king's bench, ddrito jusiHue it can be
issued in a case of original jurisdiction upon a
proper showing bv this court, and the express
power is extendea by the 14th sec. of the Judic-
iary Act of 1789. if the writ is neoesaary to tlie
exercise of the jurisdiction belonging to the
court.

If mandamus should not be regarded as '*a
prerogative writ.'* but as an action, a case, it
falls in this matter directly within the vested
power and original jurisdiction of the court,
and can be entertained independently of the
Judiciary Act as a constitutional ** flowo- *' of
this court.

III. The original jurisdiction of this ooort ii
limited to those cases in which foreign ambas-
sadors, ministers, consuls and American States
are interested^ but in this range it has no limit
There is no judge who can interpose to exer-
cise power over them, but this court in its orig-
inal jurisdiction. From the very nature of the
Constitution, the great police power of the tnaa-
damus, as between the States, is a necessity to
the exercise of the jurisdiction conferred on
this court.

It is the case which gives the jurisdiction, not
the court.
Martin v. ffunter^s Lessee, 1 Wheat, 904.

IV . Under the precepts of the law of nations,
the obligation to deliver fugitives from Juatioe
touched only a few classes of criminals — ^those
whose crimes ** touched the State,'* or were so
enormous as to make them ho^es humani generis
— poisoners, assassins. Ac, These were deliv-
ered up when convicted, and sometimea before.
This was done for comi^.

Vattel, book 1. ch. 19; book 2, ch. 6.

The character of this obligaUon was more
frequently rendered certain by treaty. But the
Constitution of the United States has amons the
States of the Union extended and enlarged the
rule of the publicists. Our States obey the de»
mand where a person is charged with treason.
felony or other crime. Crime is synonymoos
with misdemeanor (4 Bl. Com., 5). and includes
every offense below felony, punished by indict-
ment as an offense against the public

9 Wend.. 222.

We know that in the first draft of this
clause of the Constitution the words *'htgh
misdemeanor " were used. They were stjjdLea
out and ** other crime *' inolerted, because

1860.

Ex Pabtb Kbntockt y. Dibmnisok.

66-110

"high misdemeanor" might be technical and
too limited. The f ramere wanted to * * compre-
hend all proper cases."

5 Elliott, 487.

The Constitution is harmonious in its com-
plicated structure. As the Federal Gk>yemment
IS the repository of the power over foreign in-
tercourse; so the inter -state intercourse is estab-
lished upon a fixed and stable basis by dispens-
ing with comity and the rule of the publicists,
and making the obligation to render criminals
to the jurisdiction they have offended, a perfect
obligation in express constitutional compact.
The States have left themselves no discretion on
this subject. They cannot enlarge, diminish,
abridge or modify the constitutional arrange-
ment: '* no State shall, without the consent of
Congress, enter into any agreement or compact
with Another State," &c.

Congress cannot waive an express and man-
<latory provision of the Constitution. A person
chargea with treason, felony or other crime,
4fec., shall be delivered up, &c. Can two of
these States negotiate with each other, a modifi-
cation of this obligation? Certainly not. Can
they with the consent of Congress? Certainly
not. It is a fixed, well defined and perfect
obligation which furnishes all the essentials for
its own execution, if properly considered as an
inter-state obligation, subject to the ludicial
grants of the ^vemment to enforce its due and
proper execution. It expresses plainly what is
to be done. The Executive of the State is a
mere instrument of the Constitution pointed
out by the law, because he holds the executive
authority of his State, and is a sworn officer of
the Constitution of the United States, bound by
his oath to observe its mandate and the laws of
the United States made in pursuance thereof , as
the supreme law of the land, even in preference
to those of his own State.

It would not be within the right or competen-
cy of the State of Ohio to refuse this delivery.
All its departments could not make a law effec-
tive to prevent it. Can its Executive alone avoid
it ? If he can, why may not any one else, no mat-
ter how appointed or in what waj[ qualified?

The State of Ohio must be considered as will-
ing to abide by its constitutional obligations ; for
this refusal is not the act of the government of
the State, it is only the act of its Executive, of
one department of its government. The State
is bound so strongly by the term of the Consti-
tution, it cannot refuse. If, then, it is con-
senting and Kentucky is demanding, and only
Mr. Dennison refusing, it remains to be seen
whether there resides m the Judicial Depart-
ment of the Federal Oovernment power to com-
pel him to the performance of a ministerial duty
assigned to him by law, in order to execute the
inter-sfate covenants inscribed in the Constitu-
tion. In that memorable case of Prigg v. Penn-
sfflvania, 16 Pet., 5S9, several leading princi-
ples of construction were asserted, to the observ-
ance of which we now invite the attention of
this court.

1st. When the end is required, the means are
given. When the duty is enjoined, the ability
to perform it is contemplated to exist on the
part of the functionaries to whom it is intrusted.

2d. The General Government is bound,
through its own Departments, Legislative, Judi-
<3al or Executive, as the case may be, to carry

See 24 How. U. S.. Book 16.

into effect all the rights and duties imposed upon
it by the Constitution.

We are perfectly aware that reliance may be
placed on the very case from which these prin-
ciples are extracted, to prove that the obligation
to deliver the fugitive from justice is '* exclu-
sively federal," and that, therefore, it may be
insisted that Congress cannot direct a State exec-
utive authority to execute it, but must impose
this duty on some person who will be amenable
as belonging to one of the departments of the
Federal Government The court says the obli-
gation is '* exclusively federal," that " the states
cannot be compelled to enforce it." From this
dictum the inference is drawn, that if the person
indicated to perform the duty (though it be only
miniBterial) holds any office under the State
Government, this court cannot or will not com-
pel him to perform the duty, but will wait for
Congress to remodel the legislation of 1708. so
as to make the person exclusively a federal of-
ficer. We resist the propriety of such inference
from the points decided by the court in Prigfa
case. The court alluded to the resort which the
claimant of a fugitive from service must have to
the judiciary to ascertain a fact, in order to sup-
port a right upon the finding of the fact, that
did intimate that the action of the state magis-
tracy was voluntary though valid unless pro-
hibited by the State. In the case of a fugitive
from justice, however, there is no fact to be as-
certained, no question to be adjudicated, no
necessity to appeal to anyone to support a rirht,
but simply to aeliver upon a demand. Wul it
be replied that to afford even this facility Con-
gress must by law indicate who is to perform
the duty? We rejoin that Congress has so in-
dicated by the Act of 1798. As well might the
defendant plead his citizenship or inhabitancy
in Ohio to relieve him, as that he is relieved by
being governor or holding an office by author-
ity of the State. The power of this government
extends so far that the performance of a pub-
lic duty mav be demanded and the incumbent
of a particular office may be required to perform
it, especially where the duty is only ministerial,
though at the same time he may be in office in
the State. We think it Lb eminenUy proper that
the executive authority of the State should be
the power indicated for the performance of this
duty; because that officer is at the same time
sworn to support the Constitution of Uie United
States, and the laws of Congress made in pur
suance thereof ; and because he represents the
state on which the demand is made, and bound
by the constitutional compact on which the de-
mand is founded.

The obligation is said to be ''exclusively fed-
eral." Does it not bind the State of Ohio ? Is
it not from its power the compact subtracts?
We think the State has peculiarly come under
the obligation expressed in the clause in ques-
tion. Its hands are tied by the clause. With-
out the clause it might have been guided by
its own discretion or by comity — now it is
obliged by the terms of the covenant to which
it has consented. It Hiay be it cannot be
compelled to enforce the delivery of the fugi-
tives. It may be the General Government is
compelled through its own department ' ' to car-
ry this into effect; " but that necessity does not
shift the obligation. The citizen owes obedi-
ence to the law, and is under obligation to per-

46 721

66-110

BUFRBMK OOXTRT OF THtt UnITRD ttTATBB.

Dxc. Tkbm,

form the duties the law enjoins. But if he fails,
the court enforces the law and secures the right
which was infringed by the violation of the
duty. Nothing can be more familiar than an
obligation resting upon one party, and the right
and power to enforce its execution vested in
another. We submit very respectfully that this
is lust the case under our Constitution. The
obligation to surrender the fugitive from jus-
tice rests upon the State — the power and duty
to enforce the obligation resides in the General
Government. The State of Virginia failing in
1 790 to deliver certain fugitives upon the demand
of Gov. Mifflin of Pennsylvania, he brought
the facts before the President, and the Act of
1798 was the consequence, whereby the Execu-
tive of the State was directed to perform the
duly answering such demand. Every condi-
tion has been met. They who would escape
the conclusion at which we wish to arrive must
take the position, not onlv that in our system
the States may prohibit the use of their State
agencies to the General Government in carry-
ing the supreme law into effect within their
boundaries; but this further position, that it is
not in the power of the Federal Government to
demand of anyone in a Stute to perform a duty
essential to the execution of the obligations in-
scribed in the Constitution.

We may well ask the Supreme Court to pause
before ruling to this extent. When we remem-
ber that all executive, legislative and judicial
officers in the several States, are required, by the
express letter of the Constitution of the United
States, to be sworn ''to support the Constitu-
tion," and that the " laws of Congress made in
pursuance thereof are the supreme laws of the
land,'* overriding all state laws coming into con-
flict with them — that this body of state officers
is bound solemnly to render obedience primarily
to this supreme law, even in their respective
iurisdictions,and though oppposed to their State
laws, it is difficult to comprehend the wisdom
of that policy which teaches that those States
can prohibit the use of these agencies in carry-
ing into effect those very laws which the State
has consented to observe as the supreme law,
and its agents have been sworn to support as
paramount.

We submit to the court, that the case of Prigg
V. Penvsylvania, 16 Pet., 589, has been modi-
fled by the subsequent decisions of Moore v.
Ths Aople of llUnoU, 14 How.. 18, so far at
least as to authorize state legislation, which is
ancillary to the effectuation of the obligation to
be •* carried into effect " by the federal power.
We hope the court will not carry the exclusive
action of the federal power so far as to say that
it cannot indicate "the executive authority of
a State," as the instrument to perform the pure-
ly ministerial act acquired by the 2d section,^
4th article of the Constitution.

V. The duty required by the Ck)vemor of
Ohio in arresting a fugitive from justice, results
in an express obligation of his State, which he,
as the executive authority of Uiat State, is di-
rected by the Act of 1798 to carry out. He has
no judgment to exercise touching the point of
arrest. He cannot even hear a question on
the point of identity of person that a judge
might hear on futbects corpus. He cannot con-
sider the question of guilt or innocence.

9 Wend., 221.

We refer to Clark's case, because it is a strong
case adjudicated in the better days of the Re-
public, by a patriotic public officer, who strove
only to perform his duty under the law.

May every state executive at pleasure violate
the Constitution in its most direct mandate and
most express obligation? Has the judicial power
an arm not strong enough to reach him? If so,
the obligations of the Constitution may at any
time and under any pretext be avoided ; the in-
strument is a myth.

Governor Dennison has mistaken his power
in this matter, by assuming the discretion to
judge in regard to the alleged crime. The words
of the Constitution are unambiguous. That
the crime is to be judged by the law of the State
through whose Executive the demand is made,
appears from the Constitution itself ; for the
object of the delivery of the fugitive is "that
he may be removed to the State having jurisdic
tion of the crime." To say that the authority
on whom the demand is made shall judge of
the guilt of the party, or of the fact of the crime,
or whether the alleged act is a crime, is to nul-
lify the sense, object and intent of the framerb
of the Con8titution,and to assume a superviacH-y
power by the Executive of a State over the law
making and police powers of another State. The
police power of the States was reserved, and has
never been surrendered to the Federal Govern-
ment.

Moore v. The People of lUinoig, 14 How.. 18;
11 Pet, 189.

The Governor of Ohio, in refusing the de-
mand, has not denied his general responsibility
under the Constitution and Jaw of the United
States to make delivery of a fugitive from ju«^
tice. His refusal was baaed upon the aHegn-
tion that the offense charged in the Kentucky
indictment was not crime, according to the aiir-
niflcation of that word in the Constitution. To
confine the terms to such offense aa was denoin
inated crime at the date of the Constitution
would give a restrictive operation to that ioatni-
ment, which would vastly impair its adaptaiion
to the progress and wants of societv. It would,
in effect, destroy the force of this clause of the
Constitution at its inception; and instead of
placing the States in bonds of mutual obligation
to vindicate the jurisdiction of each other
through future years, would make each a super-
visor of the police powers of the others, and. by
reaaon of conflicting policies in their progress,
would inevitably lead to alienation, confusioii
and ultimate discord. The instrument was not
intended to provide merely for the exigendeft
of a few yeara, but was to endure through a
lapse of ages, the events of which were Ic^ed
up in the inscrutable purposes of Providence;
hence fts powers are expreraed in general terms.

1 Wheat., 805, 826.

It only remains for the counsel for the de-
mandant to say that the State of Kentucky, in
bringing this case before the Supreme Court,
pursues the law as it exists, and asks its enforre-
ment if the law can be enforced. If the Act of
Congress has exceeded the power vested in Ccm-
gress by the Constitution, and we have been
since 1798 acting through instrumenia ovir
which the government has no control. Ken
tucky desires, through the Supreme Court, to
know the fact, so that Congress may without
delay so treat this important subject as hoe-

K U.S.

1860.

Ex Parts Kbntuckt y. Dknnieok.

66-110

after to assure the faithful and prompt execu-
tion of this chiuse of the Constitution. To it
it is a vital question, as to all the other States in
fact, whose institutions are similar to its.

Mr. Christopher P. Wolcott* against the
motion:

I. The Gk)vemment of the United States is
one of limited and enumerated powers, derived
primarily from the specific grants of the Con-
stitution, which is at once the source and the
law of all its being. It is a necessary correla-
tive of this proposition, and one declared by the
fundamental law itself, that each State still re-
tains complete, exclusive and supreme power
over all persons and things within its limits,
where that power has not been dpccially granted
or restrained by the Constitution, and that in
respect to all tliis mass of undelegated and un-
prohibited power, the States stand to each other
and to the General Government as absolutely
foreign nations.

Omom V. Ogden, 9 Wheat.. 208. 208; Brown
V. Mcvryland, 12 Wheat., 419, 443; WUsan v.
Blaek Bird Creek Marsh Co., 2 Pet., 251, 252;
Buckner v. FirOey, 2 Pet., 586, 590; New York
V. Miln, 11 Pet., 102, 136; U. ti. Bank v. Dan-
iel, 12 Pet., 82, 84; Rhode Island v. Massaehu
setts, 12 Pet. 720; License Oases, 5 How., 504,
588.

II. The Judicial Department of the Federal
Government, sharing of necessity the intrinsic
quality which marks that government in its
unity, is also one of limited and specific powers.

The authority of the Judicial Department is
restrained, not only by the limitations specially
affixed to it, but also by those more general
considei^tions which grow out of the verv na-
ture and purpose of a f^eral government, ^hus
the judicial power of the United States cannot
extend to a controversy in which a state may —
even by a purely civil action — ^pursue a citizen
of another State for his violation of its munici-
pal laws. Though in that instance, the contro-
versy would, as to its subject-matter, be one
proper for judicial cognizance in the general
sense of that term, and would, also, in respect
of its parties, fall within the enumerated cases;
yet no tribunal of the United States could en-
tertain it, because all matters of merely internal
concern have been kept by the States for their
own original, exclusive and sovereign control.

Ifew York CUyy. Miln, 11 Pet., 139; License
Cases. 5 How.. 588.

III. The Supreme Court of the United SUtes,
while fettered by each of the conditions so at-
taching to the whole Judicial Department^-of
which It is simply the highest organ — has been
otherwise so narrowly confined as to permit it
to wield in an originsJ form, only a very scant
degree of the scant power confided to the range
of the Judicial Department. Of necessity all ju-
dicial power must be exerted in an original or
appellate form, and the Constitution has de-
clared the precise cases in which, under either
of theoe forms, the judicial power of the United
States may be imparted to the Supreme Court.

The original jtu-isdlction is expressly limited
to —

1. Cases ** affecting ambassadors, other pub-
lic ministers or consuls."

2. Cases ' ' in which a State shall be a party ;"
and "since the adoption of the 11th Amend-
ment— in which a State shall be the plaintiff or
See 24 How.

other pursuing party. " It is not enough that it
may be ** consequentUlly affected or indirectly

Intpreftted "

FbtDler v. Lindsey, 8 Dall, 411; U. 8, v. Pe-
ters, 5 Cranch, 115, 139; Osb<ym v. U. 8. Bank. 9
Wheat., 788, 850; U. 8. Bank v. Planters'
Bank, 9 Wheat., 904, 906; Wheeling Bridge
case, 18 How.. 518, 559.

IV. The Constitution does not of itself vest
any power of action in the Supreme Court. It
simply enables the court — unoer the regulating
control of Congress — to exert judicial authority
in the prescribed cases; but the existence in the
court, of the power itself and the methods and
instruments of its exercise, depend on the affirm-
ative legislative action of Congress. The Su-
preme Court, in respect of both forms of its
jurisdiction, is the organ of the Constitution
and the law.

ChUholm V. Oe(yrgia, 2 Dall., 419. 432. 452;
Marhury v. Madison, 1 Cranch, 137, 173; BoU-
man's csjBie, ex parte, 4 Cranch, 75. 98, 94; Way-
man v. Southard, 10 Wheat, 1, 21, 22; Ne^JO Jer-
sey V. New York, 5 Pet., 283. 290; Orane*s case,
ex parte, 5 Pet.. 190. 198; Rhode Island y, Mas-
sachusetts, 12 Pet., 657.721, 722; KendaU v. U.
8., 12 Pet, 524. 622; Christy's csaes, ex parte, 3
How.. 293, 822.

The Congress exercising its power in this be-
half has regulated the jurisdiction of this court
and its form and mode of proceeding.

1. The original coenizance of this court, as
to cases in which a State is a party has been
limited to '• controversies of a civil nature " — a
limitation not expressed by the Constitution,
and yet certainly effectual.

The Judiciary Act, sec. 18.

2. Power has been given to the Supreme
Court to issue the two named writs, the writ of
prohibition and the ' ' writ of mandamus, in cases
warranted by the principles and usages of law.
to any courts appointed or persons holding
ofi^ce under the authority of the United States.^

Judiciary Act, sec. 18.

The general authority to regulate its modes
of proceeding conferred on this court by the
''Process Act." sec. 2, and to issue "other writs"
ancillary to the exercise of its jurisdiction con-
ferred by the Judiciary Act, sec. 14, does not
enable the court to enlarice the uses of the writ
of mandamus. The express grant of this writ,
as against a specific class of functionaries, is a
clear exclusion of any such authority, and an
emphatic prohibition against the use of the writ
in any other case or for any other purpose.

Christy, ex parte, 8 How.. 293. 322.

V. Arranging in continuous order the ascer-
tained general conditions which limit the exist-
ence and exercise of the original jurisdiction of
the Supreme Court in all possible case^— ex-
cepting only those ** affecting ambassadors,
other public ministers and consuls," of whom
there is now no question — ^it will be seen that
no controversy can gain a foothold here, unless
itbe—

1.^ Appropriate for the action of judicial as
distinguiBhed from political power;

2. Within the scope of "the judicial power
of the United States, as distinguished " from
the general mass of the judicial power reserved
by and to the several States for their own ex-
clusive exercise.

8. Instituted by a State as the * 'entire party "

72)1

6ft-ll0

SUFRBMB COUBT OF THE UnITBD IStATBS.

Dec. TsRit.

plaintiff on the record — in virtue of such direct
legal or equitable interest in the subject-matter
as, according to the ordinary rules applied to
other parties, entitles it to "move" a case at
law or in equity — ^against a party subject to the
control of the court.

4. Of a * * civil " as opposed to one of * ' crimi-
nal " nature.

5. Conducted in a form of proceeding con-
sistent with its subject-matter, with the char-
acter of its parties and with the regulations pre-
scribed bv Congress for the use of that form
of proceeaing.

But the controversy, if a writ of mandamti$
can be so called, moved for bv the present ap-
plication, has no one if all these vital charac-
teristics. For —

VI. The subject-matter of the controversy
excludes it from discussion or adjudication by
any judicial tribunal.

1. It is not appropriate for the action of ju-
dicial power, since it only concerns the execu-
tion of a compact between the States — inde-
pendent as to each other — for the extradition of
fugitive offenders.

Affecting the States at lar^ as to their ex-
terior relation and their reciprocal national
Tights and duties, it is in essence a political
question. Without express provision com-
mitting them under specific regulations to the
Judicisd authoritv, the performance of national
engagements addresses itself to the department
wielding the political power and able to weigh
political considerations. No such valid pro-
vision has been made in respect of this comp«U2t.

Marburh v. Madison, 1 Cranch, 187, 170 ;
U. 8. V. Palmer, 8 Wheat., 610, 634, 670; The
Divina Pastara, 4 Wheat.. 53, 63 ; Foster v.
JfeOeon, 2 Pet., 253, 807. 314; Cherokee Nation
V. Oeo7'gia, 5 Pet., 1 U. 8., v. Arredendo, 6 Pet.,
691, 735.

2. If fit for judicial cognizance under any
circumstances or by any tribunal, the subject
of the proceeding' is, nevertheless, not within
Che scope of the judicial power of the United
States.

(a) The Constitution has not j^ranted any
power to any department of the Federal Gov-
ernment concerning the reclamation of fugi-
tives from justice as between the States. The
provision which it contains in this behalf is a
simple engagement made by the States with
each other — regulating matters of purely state
concern and addressea to the States alone. If,
as an original question, this interpretation could
be doubted, it has become the fixed one by long
usage and aquiescence. Since the foundatian
of ue government, each State has habitually
determined for itself the extent of this obliga-
tion— many of them (and Kentucky is one — 1
Stanton's Kev. Stat., 657) have regulated its
discharge by express enactments — but never
until now has the authority of the Federal
Government been invoked to constrain its ful-
fillment. This practical exposition, acted upon
for nearly eighty years, is too strong and obsti-
nate to be shaken or controlled.

VII. The proceeding is not one in which a
State is the pursuing party on the record ; nor is
any State so interested in its subject matter as to
be entitled to pursue here an^r form of con-
troversy in respect to it; nor is the adverse
party one over whom this court can, under

79S4

any circumstances or by any mode, exercee
any control.

1. The writ of mandofnue is a prerogative
writ issued by the government in its own name
to its own functionaries, to redress or prevent
a wrong done or threatened to itself as a gov-
ernment. If granted in this case, it will be a
proceeding instituted by *' the United Stales of
America against "the Governor of Ohia"
Though the State of Kentucky may be inter-
ested in the performance of that dut^, yet the
writ will issue upon reasons of public policy,
simplv to constrain the discharge of a public
duty imposed bv the authoritjr of the General
Government and essential to its own peculiar
welfare.

2. The Commonwealth of Kentucky has not
such an interest in the discharge of the assert-
ed duty as entitles it to set the writ in motion.
The ground on which it must base its interests
in the extradition of Lago, is simply one i^ase
of that general obligation springing out of the
simple compact itself, which binds evor or-
ganized political community to avenge all in-
juries aimed at the wellbeing or wel&e of its
society.

8. The claim made for the surrender of Lago
must be prosecuted by the executive authority
eo nomine of the Commonwealth of Kentucky.
That *' authority" alone is empowered by the
Constitution to demand the extradition, and bv
parity of reason, can alone institute proceed
ings for its enforcement. But a suit by or
against a state functionary as such, Is not a suit
by or against the State itself.

Osbom V. U. 8. BanJc, 9 Wheat. 858, 859;
U, 8. Bank v. Planters* Bank, 9 Wheat., 904.

4. The official personage against whom the
writ is prayed, is not subject in any foam or
degree to Uie jurisdiction of this court. No
power has been confided to any department of
the Federal Government to impose a duty upon
any functionaries of a State, or to constrain the
discharge of their official concerns.

Mdrhn v. Hunter's Lessee, 1 Wheat., 904.
336; Houston v. Moore, 5 Wheat., 1. 22; Ptigg
V. Pennsj^nia, 16 Pet., 539.

VIII. The controversy raised by the motion
is not of a civil nature. It involves no question
of the rights of persons or the rights of prop-
erty. The power of the court is invoked ma
ply in aid oi the administration of the Criminai
Code of Kentuckv, to the end that it may be
able to try Lago for an imputed offense against
its laws, and. if guilty, to imprison him in it»
penitentiary.

IX. The ori^nal jurisdiction of this €»nrt
cannot be exercised through the method of the
writ of mandamus, and tms disability spring
as well from the inherent nature of the wnt
itself as from the regulations prescribed far it«
use by the legislative power.

1. The writ comes to us from the oommoo
law, and this court has judicially detemiioed
that the common law remedies in the fedeni
tribunals are to be accordiu^ to the principtes
of that law as settled in England {RMnasfk
V. Campbell, 3 Wheat., 212). subject of com«e,
to the modifications made by Congress or under
its authority, and also to such limitations as re-
sult from the constitution of the court and the
nature of the Federal Government. Aooordinx
to these principles, this writ, as tersely defined

66 C.&

1860.

Ex Pabte KsirrucKT v. Dbitkison.

«6-110

by Lord Mansfield, is " a high prero^tive one,
flowing from the King himself, sittmg in the
Court of King's Bench, superintenaing the
police and preserving the peace of the country.

Rex V. Barker, 1 W. Bl., 800. 852

Stated in a different form, the writ at com-
mon law is issued by a tribunal in which not
only the Judicial sovereignty but the prerog-
ative of general superintendency resides, and it
is employed extrajudicially {AwdeUy v. Joye,
Popham, 176) as well as Judicially. Its Judicial
use is to supervise the administration of the
King's Justice by his inferior Judicatures, and
its extrajudicial function is ' 'to preserve peace,
order and good government," by constrain-
ing the prompt and rightful performance
of every public duty confided to any public
functionary or tribunal by Parliament or the
King's charter.

Tapp. Mdnd., sees. 6, 11, 12; Bac. Abr.. tit.
Mandamus, a; Butler's Niri Pritui, 195; Bex v.
Baker, 8 Burr., 1266; Bex v. Bank of England,
2 Barn. & Aid.. 622; Bex v. F^noey, 2 Bam. &
C, 596; Bex v. J}farth Biding, <fo.. 2 Bam. &
C 290; Beg. v. E. G. Bailtcap, 10 Adol &E.,
557; KendaU v. U. 8., 12 Pet., 621.

But this court is one of very special and
limited Jurisdiction. The Judicial sovereignty
in its general sense, does not reside here, and it
has no prerogative power, no police power, no
power to superintend the conduct of public
affairs. The court cannot, under the Constitu-
tion, be empowered to issue the writ of man-
damus save to the inferior judicatures of the
United States in the exercise of its appellate
Jurisdiction.

Marbury v. Madiscm, 1 Cranch, 187. 176;
KendeUl v. U, 8. 12 Pet., 524. 621.

The Judiciary Act, as already noticed, in regu-
lating the conditions under which the great
common law writs may be issued by this court,
has interdicted the employment of this writ,
except as it may, agreeably, to the ** principles
and usages of law,' be directed a^nst ** courts
appointed or persons holding office under the
sovereignty of the United States." The court
has solemnly determined that the Constitution
prohibits it from issuing the writ, except to the
courts of the Federal Government, in the exer-
cise of its appellate jurisdiction.

Marbury v. Madison, 1 Cranch, 187,- 176;
KendaU v. U. 8., 12 Pet., 524, 621.

But the party against whom the writ is now
invoked does not come within either of tiie
categories prescribed by the Judicial Act.

X. The results now attained demonstrate
that the controversy which the present appli-
cation seeks to inaugurate is. in its form and in
its essence, in its whole and its every part and
element, beyond the utmost sweep of the Juris-
diction of this court. The power to compose
this national and political strife does not reside
in this tribunal; the pursuing part^ cannot
cross it threshold ; the party pursued is without
the reach of its arms; ma subject of the differ-
ence has been excluded from its action; and the
writ which it is solicited to grant, has been de-
nied to it as a method for the exercise of its
original Jurisdiction.

Mr. Chief Justice TajiBy delivered the opin-
ion of the court:
The court is sensible of the importance of this

See 24 How.

case, and of the great interest and gravity of the
questions involved in it, and which have been
raised and fully argued at the bar.

Some of them, however, are not bow for the
first time brought to the attention of this court;
and the objections made to the Jurisdiction, and
the form and nature of the process to be issued,
and upon whom it is to be serv^, have all been
heretofore considered and decided, and cannot
now be regarded as open to further dispute.

As earlv as 1792, in the case of Georgia v.
Bra^ora, 2 Dall., 402, the court exercised the
original jurisdiction conferred by the Constitu-
tion, without any further legislation by Con-
gress, to regulate it, than the Act of 1 789. And
no question was then made, nor any doubt then
expressed, as 1 o the authority of the court. The
same power was again exercised wiUiout objec-
tion in the case of Oswoid v. The State of Geor-
gia, in which the court regulated the form and
nature of the process against the State, and di-
rected it to be served on the governor and attor-
ney-general. But in the case of Chisholm v.
Georgia, at Febraary Term, 1798, reported in
2 Dall., 419, the authority of the court in this
respect was questioned, and brought to its at-
tention in the argument of counsel ; and the re-
port shows how carefully and thoroughly the
subject was considered. Each of the Judges de-
livered a separate opinion, in which these ques-
tions, as to the Jurisdiction of the court, and the
mode of exercising it, are elaborately examined.

Mr. Chief JustMe Jay, Mr. JusUee Cushing,
Mr. Justice Wilson, and Mr. Justice Blair, de-
cided in favor of the Jurisdiction, and held that
process served on the governor and attorney-
general was sufficient. Mr. Justice Iredell dif-
fered, and thought that further legislation by
Congress was necessary to give the Jurisdiction,
and regulate the manner in which it should be
exerdsed. But the opinion of the majority of
the court upon these points has always been
since followed. And in the case of New Jersey
V. Ifew York, in 1881, 5 Pet.. 284, Chief Justice
Marshall, in delivering the opinion of the court,
refers to the case of Chisholm v. The S^ate of
Georgia, and to the opinions then delivered, and
the Judgment pronounced, in terms of high re-
spect.and after enumerating the various cases in
which that decision had been acted on. reidfirms
it in the following words:

"It has been settled by our predecessors, on
ffreat deliberation, that this court may exercise
its original Jurisdiction in suits against a State,
under the authoritv conferred by the Constitu-
tion and existing Acts of Congress. The rule
respecting the process, the persons on whom it
is to be served, and the time of service, are fixed.
The course of the court, on the failure of the
State to appear after due service of process, has
been also prescribed."

And in the same case, page 289, he states in
full the process which had l^n established by
the court as a rule of practice in the case of
Grayson v. Virginia, 8 Dall. 820, and ever since
followed. This rule directs, '*that when proc-
ess at common law, or in equity, shall issue
against a State, the same shidl be served upon
the €k)vernor or Chief Executive Magistrate
and the Attomey- General of such State/'

It is equally well settled, that a mandamus
in modem practice is nothing more than an ac-
tion &t law between the parties, and is not now

ee-iio

8UFKJEACB Court of thb Unttbd Statbs.

Dbc. Tbem*

regarded as a prerogative writ. It undoubtedly
came into use by virtue of the prerogative power
of the English Crown, and was subject to regu-
lations and rules which have long since b^n
disused. But the right to the writ, and the
power to issue it, has ceased to depend upon any
prerogative power, and it is now regarded as an
ordinary process in cases to which it is appli-
cable. It was so held by this court in the cases
of KendaU v. United StaUs, 12 Pet., 615; Ken-
dall V. Stokes, 3 How., 100.

So, also, as to the process in the name of the
Governor, in his official capacity, in behalf of
the State.

In the case of Georgia v. Madrazo, 1 Pet.,
110, it was decided, that in a case where the
Chief Magistrate of a State is sued, not by his
name as an individual, but by his style of office,
and the claim made upon him is entirely in his
official character, the State itself may be consid-
ered a par^ on the record. This was a case
where the State was the defendant ; the practice,
where it is plaintiff, has been frequently adopted
of suing in the name of the Governor in behalf
of the State, and was indeed the form originally
used, and always recognized as the suit of the
State.

Thus, in the first case to be found in our re-
ports, in which a suit was brought by a State,
it was entitled, and set forth in the bill, as the
suit of *' The State of Georgia, bju Edward TeU-
fair, Gotemorofthe said&ate, Complainant, v.
Samuel BraUtford et al.;" and the second case,
which was so early as 1798, was entitled and
set forth in the pleadinffs as the suit of **Hi8
Excellency, Edvoa/rd Tellfair, Enquire, Governor
and Commander-in-ckirf in and over the State of
Georgia, in behalf of the said State, Complain-
ant, V. 8amu9l Brausford et al,. Defendants^**

The cases referred to leave no question open
to controversy, as to the jurisdiction of the
court. Th&y show that it has been the estab-
lished doctnne upon this subject ever since the
Act of 1789, that in all cases where original ju-
risdiction is given by the Constitution, this court
has authority to exercise it without any further
Act of Congress to regulate its process or confer
jurisdiction; and that the court may regulate
and mold the process it uses in such manner as
in ita judgment will best promote th^ purposes
of justice; and that it has also been settled,
that where ttie State is a party, plaintiff or de-
fendant, the Governor represents the state, and
the suit nmy be, in form, a suit by him as (Gov-
ernor in behalf of the State, where the State is
plaintiff, and he must be summoned or notified
as the officer representing the State, where the
State is defendant. Ana further, that the writ
of mandamus does not issue from or by any
prerogative power, and is nothing more than
the ordinary process of a court of justice, to
which everyone is entitled, where it is the appro-
priate process for asserting the right he claims.

We may,therefore, dismiss the question of ju-
risdiction without further comment, as it is
verv clear, that if the right claimed by Ken-
tucky can be enforced by judicial process, the
proceeding by mandamus is the only mode in
which the object can be accomplished.

This brings us to the examination of the clause
of the Constitution which has given rise to this
controversy. It is in the following words:
"A person charged in any State with treason,

720

felony or other crime, who shall flee from jus-
tice, and be found in another State, shall, on
demand of the executive authority of the State
from which he fled, be delivered up, to be re-
moved to the State having jurisdiction of the
crime."

Looking XX} the language of the clause, it is
difficult to comprehend how any doubt could
have arisen as to its meaning and construction.
The words, " treason, felony or other crime/'
in their plain and obvious import, as well as in
their legal and technical sense, embrace every
act forbidden and made punishable by a law of
the State. The word '* crime" of itself indudo
every offense, from the highest to the lowest
in the grade of offenses, and includes what are
called '* misdemeanors," as well as treason and
felony.

4 Bl. Com., 5, 6, and noU 8, Wendell's edi-
tion.

But as the word ** crime " would have in-
cluded treason and felony, without specially
mentioning those offenses, it seems to be sup
posed that the natural and legal import of the
word, by associating it with those offenses,
must be restricted and confined to offenses al-
ready known to the common law and to the
usage of nations, and regarded as offenses io
every civilized community, and that they do
not extend to acts made offenses by local stat-
utes growing out of local circumstances, nor to
offenses against ordinary police regulations.
This is one of the grounds upon which the Gov-
ernor of Ohio refused to deliver La^^o. under
the advice of the Attorney- General of iJbat State.

But this inference is founded upon an obvi
ous mistake as to the purpose for which the
words "treason and felony were introduced.
They were introduced for the purpose of guard-
ing against any restriction of the word "crime."
and to prevent this provision from being con-
strued b^ the rules and usages of independent
nations m compacts for delivering up fugitive?
from justice. According to these usages, eveo
where they admitted the obligation to deliver
the fugitive, persons who fled on account of
political offenses were almost always excepted,
and the nation upon which the demand is maik
also uniformly claims and exercises a discretion
in weighing the evidence of the crime, and the
character of the offense. The policy of differ
ent nations, in this respect, with the opinions
of eminent writers upon public law, are co!
lected in Wheaton on The Law of Nations,
171; Fcelix, 812; and Martm, Verge's edition.
182. And the English Government, frum
which we ha've borrowed our eencral system
of law and jurisprudence, has luwaya rtefuecd
to deliver up political offenders who had sought
an asylum within its dominions. And as the
States of this Union, although united as one Na-
tion for certain specified purposes, are yei, so
far as concerns their internal government, sep
arate sovereignties, independent of each other.
it was obviously deemed necessary to flhov.
by the terms used, that this compact waa not
to be regarded or construed as an ordinary treatr
for extradition between nations altogether is
dependent of each other, but was inteodcsi
to embrace politioU offenses againat the sovtf
eignty of the State, as well as all other crime*
And as treason was also a *' felony " (4 Bl
Com. , 94), it was necesary to insert those wordK

« U.S.

1860.

Ex Pabte Esntuckt y. Dsnnisok.

66-110

to show, in language that could not be mis-
taken, that political offenders were included in
it. For this was not a compact of peace and
<}omity between separate nations who had no
-claim on each other for mutual support, but a
compact binding them to give aid and assist-
ance to each other in executing their laws, and
to support each other in preserving order and
law within its confines, whenever such aid was
needed and required; for it is manifest that the
statesmen who framed the Constitution were
f ullv sensible, that from the complex character
of the government; it must fail unless the States
mutually supported each other and the General
Government; and that nothing would be more
likely to disturb its peace, ana end in discord,
than permitting an offender against the laws
of a State, by passing over a mathematical line
which divides it from another, to defy its proc-
•ess, and stand ready, under the protection of
the State, to repeat the offense as soon as another
opportunity offered.

indeed, the necessity of this policy of mutual
support, in bringing offenders to justice, with-
out anv exception as to the character and na-
ture of the crime, seems to have been first rec-
ognized and acted on by the American Colon-
ies; for we find, bv Winthrop's History of Mass-
achusetts, Vol. II, pp. 131 and 126, that as
•early as 1643, by * 'Articles of Confederation
between the plantations under the Gk)vernment
of Massachusetts, the plantation under the
Government of New Plymouth, the plantations
under the Government of Connecticut, and the
Government of New Haven, with the planta-
tions in combination therewith," these planta-
tions pledged themselves to each other, that,
upon the escape of any prisoner or fugitive for
any criminal cause, whether by breaking prison,
or getting from the officer, or otherwise escap-
ing, upon the certificate of two magistrates of
the jurisdiction out of which the escape was
made, that he was a prisoner or such an of-
fender at the time of the escape, the ma^-
trate, or some of them, of the jurisdiction
where, for the present, the said prisoner or
fugitive abideth, shall forthwith grant such a
warrant as the case will bear, for the apprehend-
ing of any such person, and the delivery of
him into the hands of the officer or other per-
;son who pursueth him ; and if there be help re-
quired for the safe returning of any such of-
fender, then it shall be granted unto him that
craves the same, he paymg the charges there-
of." It will be seen that this agreement gave
no discretion to the magistrate of the govem-
jment where the offender was found ; but he was
bound to arrest and deliver, upon the produc-
tion of the certificate under which he was de-
manded.

When the Thirteen Colonies formed a confed-
eration for mutual support, a similar provision
was introduced, most probably suggested by
the advantages which the plantations had de-
rived from their compact with one another.
But, as these Colonies had then, by the Decla-
ration of Independence, become separate and
independent sovereignties, against which trea-
son might be committed, their compact is care-
fully worded, so as to include treason and
felony — that is, political offenses — as well as
crimes of an inferior grade. It is in the follow-
ing words:

See 24 How.

" If any person, guilty of or charged with
treason, felony, or other high misdemeanor, in
any State, shall flee from justice, and be found
in any other of the United States, he shall, upon
demand of the governor or executive power of
the state from which he fled, be delivered up
and removed to the State having jurisdiction of
his offense."

And when these Colonies were about to form
a still closer union by the present Constitution,
but yet preserving their sovereignty, they had
learned froih experience the necessity of this
provision for the internal safety of each of
them, and to promote concord and harmony
among all their members; and it is introduced
in the Constitution substantially in the same
words, but substituting the word *' crime " for
the words '*high misdemeanor," and thereby
showing the deliberate purpose to include ev-
ery offense known to the law of the State from
which the party charged had fled.

The ar^ment on behalf of the Gk)vemor of
Ohio, which insists upon excluding from tlus
clause new offenses created by a statute of the
State, and growing out of its local institutions,
and which are not admitted to be offenses in
the State where the fugitive is found, nor so
regarded by the eeneral usage or civilized na-
tions, would renoer the clause useless for any
Practical purpose. For where can the line of
ivision be drawn with anything like certaintv?
Who is to mark it? The Governor of the de-
manding State would probably draw one line,
and the Gk)veraor of the other State another.
And if they differed, who is to decide between
them? Under such a vague and indefinite con-
struction, the article would not be a bond of
peace and union, but a constant source of con-
troversy find irritating discussion. It would
have been far better to omit it alto^ther, and
to have left it to the comity of the States, and
their own sense of their respective interests, than
to have inserted it as conferring a right, and
yet defining that right so loosely as to make it
a never failing subject of dispute and ill will.

The clause in question, like the clause in the
Confederation, authorizes the demand to be
made bv the executive authority of the state
where the crime was committed, but does not
in so many words specify the officer of the
State upon whom the demand is to be made,
and whose duty it is to have the fugitive deliv-
ered and removed to the State having jurisdic-
tion of the crime. But, under the Confedera-
tion, it is plain that the demand was to be niade
on Uie Governor or executive authority of the
State, and could be made on no other depart-
ment or officer; for the confederation was only
a league of separate sovereignties, in which each
state, within its own limits, held and exercised
all the powers of sovereignty; and the Confed-
eration had no officer, either executive, judicial
or ministerial, through whom it could exercise
an authority within the limits of a State. In
the present Constitution, however, these pow-
ers, to a limited extent, have been conferr^ on
the General (Government within the territories
of the several States. But the part of the clause
in relation to the mode of demanding and sur-
rendering the fugitive is (with the exception of
an unimportant word or two), a literal copy of
the Article of the Confederation, and it is plain
that the mode of the demand and the official

727

66-110

Sttfrbmb Coubt of thb Unitbd Statsb.

Dbc. Term^

authority by and to whom it was addressed,
under the Confederation, must have been 'in
the minds of the members of the convention
when this article was introduced, and that,
in adopting the same words, thev manifestly
intended to sanction the mode of proceeding
practiced under the Confederation — that is, of
demanding the fugitive from the executive au-
thority, and making it his duty to cause him to
be delivered up.

Looking, therefore, to the words of the Con-
stitution— to the obvious policy and necessity
of this provision to preserve harmony between
States, and order and law within their vespect-
ive borders, and to its early adoption by the
colonies, and then by the confederated States,
whose mutual interest it was to give each other
aid and support whenever it was needed — the
conclusion was irresistible, that this compact en-
grafted in the Constitution included, and was in-
tended to include, every offense made punishable
by the law of the state in which it was com-
mitted, and that it gives the right to the execu-
tive authoritjT of the State to demand the fugi-
tive from the* executive authority of the State
in which he is found ; that the right given to
" demand ** implies that it is an absolute right;
and it follows that there must be a correlative
obligation to deliver, without any reference to
the character of the crime charged, or to the

goli^ or laws of the State to which the fugitive
as fled.

This is evidently the construction put upon
this article in the Act of Congress of 1798 (1
Stat, at L. , 802), under which the proceedings
now before us are instituted. It is, therefore,
the construction put upon it almost cotempo-
raneously with the commencement of the gov-
ernment itself, and when Washington was still
at its head, and many of those who had assisted
in framing it were members of the Congress
which enacted the law.

The Constitution having established the right
on one part and ths obligation on the other, it
became necessary to provide by law the mode
of carrying it into execution. The Governor of
the State could not, upon a charge made before
him, demand the fugitive; for, according to the
principles upon which all of our institutions
are founded, the Executive Department can act
only in subordination to the Judicial Depart-
ment, where rights of person or property are
concerned, and its duty in those cases consists
onlv in aiding to support the Judicial process
ana enforcing its authority, when its interpo-
sition for that purpose becomes necessary, and is
.called for by the Judicial Department. The ex-
ecutive authority of the State, therefore, was not
authorized by this article to make the demand un-
less the party was charged in the regular course
of Judicial proceedings. And it was equally nec-
essary that the executive authority of the State
upon which the demand was made, when called
on to render his aid, should be satisfied bv
competent proof that the party was so charged.
This proceeding, when duly authenticated, is
his authority for arresting the offender.

This duty, of providing oy law the regulations
necessary to carry this compact into execution,
from the nature of the duty and the object in
view, was manifestly devolved upon Congress;
for if it was left to the State8,each State might
require different proof to authenticate the ju-

72»

dicial proceeding upon which the demand was
founded; and as the duty of the Ghovemor of
the State where the furtive was found is, in
such cases, merely ministerial, without the right
to exercise either executive or judicial dkcte-
tion, he could not lawfully issue a warrant to
arrest an individual without a law of the State
or of Congress to authorize it. These difficul-
presented themselves as early as 1791, in a de-
mand made by the (Governor of Pennsylvania
upon the €k)vemor of Virgiuia, and both of
them admitted the propriety of bringing the
subject before the President, who immediately
submitted the matter to the consideration of
Congress. And this led to the Act of 1798. of
"v^idi we are now speaking. AU difficulty as
to the mode of authenticatmg the Judidal pro-
ceeding was removed by the article in the (in-
stitution which declares " that full faith and
credit shall be given in each State to the pub-*
lie acts, records and Judicial prooeeduigs of
every other State; and the Congress may by
genera] laws prescribe the manner in which
acts, records and proceedings shall be proved,
and the effect thereof." And without doubt
the provision of which we are now speaking —
that is, for the delivery of a fugitive, which re-
quires official communications lietween States,
and the authentication of official documents^
was in the minds of the framers of the Ckmsti-
tution, and had its influence in inducing them
to give this power to Congress. And acting
upon this authority, and the clause of the Con-
stitution which is' the subject of the preeeot
controversy, Congress passed the Act of 17SK3,
February 12th (1 Stat, at L.. 302), which, as
far as relates to this subject, is in the follow-
ing words:

*' Sec. 1. That whenever the executive au-
thority of any state in the Union, or of either
of the territones northwest or south of the River
Ohio, shall demand any person as a fusitive
from Justice of the executive authority of any
such state or territory to which sucii person
shall have fled, and shall, moreover, produce
the copy of an indictment found, or an Affida-
vit made before a magistrate of any stale or
terrritory as aforesaid, charging the person so
demanded with having committed treason, fel-
ony, or other crime, certified as auth^itic by
the governor or chief magistrate of the state or
territory from whence the person so charged
fled, it shall be the duty of Uie executive au-
thority of the state or territory to which such
person shall have fled, to cause him or her to be
arrested and secured, and notice of the arrest
to be ffiven to the executive authority making
such demand, or to the agent of snc^ authority
appointed to receive the fugitive, and to cause
the fugitive to be delivered to such agent when
he shall appear; but if no such agent shall ap-
pear within six months from the time of the ar-
rest, the prisoner may be discharged. And all
costs or expenses incurred in the apprehencUng.
securing, and transmitting such fugitive to the
state or territory making such demand shall be
paid by such state or territory.

"Sec. 2. And be it further enacted. That
any agent, appointed as aforesaid, who ahaU
receive the fugitive into his custody, shall be
empowered to transport him or her to Uie aiate
or territory from which he or she shall bsTe
fled ; and if any person or persons shall by force

1880.

Ex Pabtb Ebntuckt v. Dbkniboh.

e»-iio

set at liberty or rescue the fugitive from such
agent while transporting as aforesaid, the per-
son or persons so offending shall, on conviction,
be fined not exceeding five hundred dollars, and
be imprisoned not exc^ding one year."

It will be observed, that the judicial acts
which are necessary to authorize the demand
are plainly specified in the Act of Cong^resft;
and the certificate of the executive authonty is
made conclusive as to their verity when pre-
sented to the executive of the State where the
funtive is found. He has no right to look
behind them, or to question them, or to look
into the character of the crime specified in this
judicial proceeding. The duty which he is to
perform is, as we have already said, merely
ministerial — ^that is, to cause the party to be ar-
rested, and delivered to the agent or authority
of the State where the crime was committed, it
is said in the argument, that the executive of-
ficer upon whom this demand is made must
have a discretionary executive power, because
he must inquire and decide who is the person
demanded. But this certainly is not a discre-
tionary duty upon which he is to exercise any
judgment, but is a mere ministerial duty — that
IS, to do the act required to be done by him,
and such as every marshal and sheriff must per-
form when process, either criminal or civil, is
placed in his hands to be served on the person
named in it. And it never has been supposed
that this duty involved any discretionary power,
or made him anything more than a mere minis-
terial officer; and such is the position and char-
acter of the Executive of the State under this
law, when the demand is made upon him and
the requsite evidence produced. The (Governor
has only to issue his warrant to an agent or of-
ficer to arrest the party named in the demand.

The question which remains to l^ examined
is a ffrave and important one. When the de-
lAand was made, the proofs required by the
Act of 1798 to support it were exhibited to the
€k>vemor of Ohio, duly certified and authen-
ticated; and the objection made to the validity
of the indictment is altofl;ether untenable.
Kentucky has an undoubtea right to regulate
the forms of pleading and process in her own
courts, in criminal as well as civil cases, and
is not bound to conform to those of any other
State. And whether the charge against Lago
ia legally and sufficiently laid in this indict-
ment according to the laws of Kentucky, is a
judicial question to be decided by the courts of
the State, and not by the executive authority of
the State of Ohio.

The demand being thus made, the Act of
Congress declares, that "it shall be the duty
of the executive authority of the state" to
cause the fugitive to be arrested and secured,
and delivered to the agent of the demanding
Sute. The words, "it shall be the duty," in
ordinary legislation, imply the assertion of the

S)wer to command and to coerce obedience,
ut looking to the subject-matter of this law,
and the relations which the United States and
the several States bear to each other, the court
is of opinion, the words "it shall be the duty"
were not used as mandatory and compulsory,
but as declaratory of the moral duty which
this compact created, when Congress had pro-
vided the mode of carrying it into execution.
The Act does not provide any means to compel

See 24 How.

the execution of this duty, nor infilct any pun-
ishment for neglect or refusal on the part of
the Executive of the State; nor is there any
clause or provision in the Constitution which
arms the Government of the United States with
this power. Indeed, such a power would place
every State under the control and dominion of
the General Gk)vemment, even in the admin-
istration of its internal concerns and reserved
rights. And we think it clear that the Federal
Government, under the Constitution, has no
power to impose on a state officer, as such, any
duty whatever, and compel him to perform it;
for if it possessed this power, it might overload
the officer with duties which would fill up
all his time, and disable him from perform-
ing his obligations to the State, and might im-
pose on him duties of a character incompatible
with the rank and dignity to wliich he was el-
evated by the State.

It is true that Congress may authorize a par-
ticular state officer to perform a particular
duty ; but if he declines to do so, it does not
follow that he may be coerced, or punished
for his refusal. And we are very far from
supposing, that in using this word "duty," the
statesmen who framed and passed the law, or
the President who approved and signed it, in-
tended to exercise a coercive power over state
officers not warranted by the Constitution. But
the Gkneral Gk)vemment having in that law
fulfilled the duty devolved upon it, by prescrib-
ing the proof and mode of authentication upon
which the state authorities were bound to de-
liver the fugitive, the word "duty" in the law
points to the obligation on the State to carry it
into execution.

It is true that in the early days of the govern-
ment. Congress relied with confidence upon the
co-operation and [support of the States, when
exercising the legitimate powers of the General
Government, and were accustomed to receive
it, upon principles of comity, and from a sense
of mutual and common interest, where no such
duty was imposed by the Constitution. And
laws were passed authorizing state courts to
entertain jurisdiction in prc^eedings by the
United States to recover penalties and forfeit-
ures incurred by breaches of their revenue
laws, and giving to the state courts the same
authority with the District Court of the United
States to enforce such penalties and forfeitures,
and also the power to hear the allegations of
parties, and to take proofs, if an application
for a remission of the penalty or forfeiture
should be made, according to the provisions of
the Acts of Congress. And these powers were
for some years exercised by state tribunals,
readily, and without oblectfon, until in some
of the States it was declined because it inter-
fered with and retarded the performance of
duties which properly belonged to them as
state courts; and in other States, doubts appear
to have arisen as to the power of the courts,
actine under the authonty of the State, to in-
flict tnese penalties and forfeitures for offenses
a^inst the General Government, unless espe-
cially authorized to do so by the State.

And in these cases the co-operation of the
States was a matter of comity, which the several
sovereignties extended to one another for their
mutual benefit. It was not regarded by either
party as an obligation imposed by the Constitu-

7«»

175-179

SUFSBICB CoaBT OF THB UnTTBD STATKS

Dbc. Tbui.

tion. And the Acts of Ck>Dgres8 conferring the
Jurisdiction merely give the power to the state
tribunals, but do not purport to regard it as a
duty, and they leave it to the States to exercise
it or not. as might best comport with their own
sense of justice, and their own interest and con-
venience.

But the language of the Act of 1798 is very
different. It does not purport to give authority
to the Executive to arrest and deliver the fugi-
tive, but requires it to be done, and the language
of the state law implies an absolute obligation
which the state authority \a bound to perform.
And when it speaks of the duty of the Gover-
nor, it evidently points to the duty imposed by
the Constitution in the clause we are now con-
sidering. The performance of this duty, how-
ever, is left to depend on the fidelity of the
state executive to the compact entered into
with the other States when it adopted the Con-
stitution of the United States, and became a
member of the Union. It was so left by the
-Constitution, and necessarily so left by the Act
of 1793.

And it would seem that when the Constitu-
tion was framed, and when this law was passed,
it was confidently believed that a sense of justice
and of mutual interest would insure a faithful
execution of this constitutional provision by
the Executive of every State, for every State had
«n equal interest in the execution of a compact
Absolutely essential to their peace and well be-
ing in their internal concerns, as well as mem-
bers of the Union. Hence, the use of the words
ordinarily employed when an undoubted obliga-
tion is required to be performed, "it shall be
his dut^.

But if the Governor of Ohio refuses to dis-
<charge this duty, there is no power delegated
to the Cheneral Government, either through the
Judicial Department or any other department,
to use any coercive means to compel him.

And upon this ground the motion for the man-
damus must be overrvXed.

Cited— 100 U. 8., 328, 347, 3&9, 301, 409 ; 102 U. S., 675 ;
6 Saw., 414; 8 Ben., 415: 4 Dill., 496; 4 Hughes. 497,
liOO; 481nd., 124;58N. Y., 301 ; 66 N. T., 187 ;84 N. T.,
441; 17 Am. Rep., 116 (112 Mass., 400); 32 Am.
Rep., 849, 358» 355 (34 Ohio. 64).

THOMAS MEBHAN and CHARLES BAL-
LANCE, Par«. tViiJ;^.,

KOBERT FORSYTH.

(See S. C. 24 How., 175-179.)

Copy of auroey, when evidenee — Patent from U.
o. giws title — Illinois Act of Limitations.

A oertlfled copy of survey in the offloe of the
Surveyor-General, griven by that olfioer, who is re-
quired to keep it, is admissible in evidence .

A patent issued to defendant, by which the United
States granted to him and his heirs, subject to the
ri^rhts of any persons daiminir under the Act of
Congress of m March, 1828, is a fee simple title on
its face, and is such a title as will afford protec-
tion to thoee claiming under it.

The Act of Limitations of Illinois protects the
claim of a person for lands, which have been pos-
sessed by actual residence thereon, having a con-
nected title in law or equity, dedudble of record
from that State or the United States.

730

Argued Feb. 18, 1861. Beaded Mar. 14; 1861.

IN ERROR to the Circuit Court of the United
States for the Northern District of Illinois.

This was an action of ejectment, brought by
the defendant in error in the court below.

Judgment was entered for the plaintiff, and
the defendant brought the case to this court by
writ of error.

The case is stated by the court.

Mr. C* BallaAce,for the plaintiffs in error:

The plaintiffs in error were clearly and in-
controvertibly within the Statute and Limita-
tions of 1845 and 1889.

Bryan v. mtrsgth, 60 U. 8. (19 How.), 834;
Wright v. Matteson. 59 U. S. (18 ffow.), 50;
Woodu>ard y. Blanehard, 16 III., 431 ; Swing v.
Burnett, 11 Pet., 41.

Mr. Williams* for defendant in error:

The defendant below held possession of the
land subject to the rights of the plaintiff, and
consequently his possession was8ui»ervient. and
not adverse, to the title of the plaintiff.

12 111.. 332; 13 How.. 24; 60 U. S. (19 How.),
838; 15 111., 273; 9 Johns.. 180; 10 Johns..
440; 20 Johns., 306; 8 Wend.. 837; 15 Mass.,
492; 9 Mass., 508; 1 Fick., 327; 2 Wend., 166;
657; 5 Cow., 130; 5 Harr. & J.. 266.

Mr. Justice Campbell delivered the opinioD
of the court:

This is an action of ejectment commenced in
the circuit court, for the recovery of a part of
two lots of land in the City of Peoria, W the
defendant in error against the plaintifa in
error.

The title of the plaintiff in the circuit court
(Forsyth) originated in the claim of AntcHne
Lapance, an inhabitant within the purview of
the Act of Congress, approved March 3d, 1823
(3 Stat, at L., 786), entitled ** An Act to confirm
certain claims to lots in the Village of Peoria.
in the State of Illinois," which was surveyed
Uie first of September, 1840, by the surveyor of
public lands, and for which a patent issued oo
the Ist day of February, ld47. The plaintiff
produced from the Surveyor-Qeneral's oflEloe a
certified copy of the survey, according to which
the location of the claim was made. This tes-
timony was objected to, but was received by
the court, and we tbink properly. An omi-
nal of the plan of survey is retained in the office
of the Surveyor General, and a copy gives by
that officer, who is required to iLeep it, upon
general principles is admissible in evidence.
United States y.Pereheman, Y Pet.. 51.

It was agreed on the trial, that the defend-
ant, Balance, and those under him, had been
in possession of the premises more than ten
years before the commencement of the suit
This possession was shown by the facts that he
had cultivated a portion of the quarter sectioQ
described in his patent for more than twenty
years, and had resided on the quarter eectloo
for twelve years, and had paia taxes on this
parcel of land as a part of the said quarter sec-
tion, but not as a separate subdivision. The
plaintiff had not paid any of the taxes during
that period. The defendant,Ballanoe, n&adt an
entry of the quarter section, of which the lot in
controversy forms a part, in 1837, and a paleni
issued to him in 1838, by which the Usiled
States gave and granted to him and his hdrs,
subject to the nghts of any and all penons

U U.S.

1860.

GrBOO y. FORbTTH.

179-188

claiming under the Act of Congreas of 8d
March, 1828(8 Stat, at L., 786), before referred to.

The defendant moved the court to instruct
the jury, that if they believe from the evidence
that said Ballance has had the actual possession
by residence on the land in controversy for
more tlum seven years, under the title he has
exhibited, the plaintiff cannot recover; and
that the words in the patent of Ballance of
January 28, 1838, " subject, however, to the
risrhts of all persons claiming under the Act of
Congress of March 8d, 1823. entitled 'An Act
to confirm certain claims to lots in the Village
of Peoria, in the State of Illinois,' cannot operate
so as to lessen the estate vested by the granting
part of the deed. "

The court declined to give these instructions,
but charged the jury: " That to constitute an
adverse possession against the French claimants
by the possession of another portion of the
quarter section by the defendant, as his tenant,
entry and possession must have been under a
claim of title inconsistent with that of the
French claimants. If the entiy and possession
were subject to the rights of the claimants ex-
isting under the Acts of Congress, then such
possession as stated could not be adverse, so
long as that possession did not actually extend
to the lot sued for."

The court further instructed the jury : * * That
when the defendant made application for a
preemption, he stated it was made subser-
vient to these French claims; and when the
patent was issued by the government to him
lor this fractional quarter, it was made subject
to these claims; therefore, the grant made by
the government, as contained in the patent, did
not necessarily operate as a conveyance of the
entire quarter section to the grantee, but the
clause mserted in the patent had the effect of
excluding from the operation of the grant that
portion of the quarter covered by these French
claims; consequently, if at the time of the
grant to Ballance there was anyone capable of
taking lot 63, under the Acts of Congress of
1820 (8 Stat, at L., 605) and 1823 (3 Stat, at L.,
786), then lot 63 was excluded by law, and by
the terms of the grant, and was excepted (in
other words, lot 68 was not granted to Ball-
ance), and he took his title subject to such ex-
clusion or exception."

We think that the circuit court erred in its
interpretation of this patent. The patent re-
cites that **full payment" had been made by
the grantee for the southwest fractional quar-
ter of section nine, in township eight north,
of range eight east, containing 147 43100th8
acres, accordiuK to the official plat of the sur-
v^ of said lanas returned to the General Land
Office by the Surveyor-General; which said
tract has been purchased by Charles Ballance.
It proceeds to declare that the United States
had ^iven and granted the said tract sbove
described, to have and to bold the same to him
and his heirs, subject, however, to the rights
of any and all of the persons claiming, &c.,
Ac. This saving clause was designed to ex-
onerate the United States from any claim of
the patentee, in the event of his ouster by per-
sons claiming under the Acts referred to. and
cannot be construed as separating any lots or
parcels of land from the operation of the grant,
or as affording another confirmation of titles ex-

Bce 24 How.

isting under the Acts of Congress deccribed in
it. The possession of Ballance, under this pat-
ent, was adverse to that of the claimants under
the Acts of 1820 (8 Stat at L., 605), and 1823 (3
Stat, at L. ,786), in every case in which their claim
was not specifically admitted by him. He was,
in no sense, their tenant, nor did the saving in the
Act create any fiduciary relation between him
and any other person, so as to prevent the
operation of the Statutes of Limitations. The
patent does not impose upon him any duty to
recx)gnize these claims. It only requires him
to accept the title of the United ^tates with
knowleage that such claims exist, and that they
do not intend to deny or to destroy them, nor
to defend his title against them.

The case of Bryan v. For^th, 19 How.,
384, involved a controversy for a lot in the City
of Peoria, similarly situated as that which
forms the subject of this suit. The court, in
that case, said that a patent with a saving like
that we are considering was a fee simple title
on its face, and is such a title as will afford
protection to those claiming under it, either
directly or having a title connected with it,
with possession for seven years, as required by
the Statute of Illinois.

The Act of Limitations of Illinois (Revised
Statutes, 349, sec. 8)protectstheclaimof a per-
son for lands, which has been possessed by
actual residence thereon, having a connected
title in law or equity, deducible of record from
that State or the United States.

The title of the defendant, and the posses-
sion which he was admitted to have had, ful-
filled the requisitions of the law, and the court
should have given the instructions asked for,
and erred in giving the instructions submitted
to the jury.

Judffment revermd and catue remanded.

Cited— 66 U. 8. CM How.), 182; 68 U. 8. a Blaok),
168; 67 U. 8. (2 Black), 668, 670. 673.

RICHARD QREGG Ain> CHARLES BAL-
LANCE, Plffs. in Br,,

ROBERT FORSYTH.

(See 8. C. 24 How., 179-188J

American State Papers, admimbU as evidence —
copy deed, evidence — recerdof suit in partition,
eikdenee — strangers cannot object Uh-'ConsiruC'
lion of U, 8. patent— adverse possession — ex-
tent of.

The American State Papers, published by order
of the Senate, contain authentic papers which are
admissible as testimony without further proof.

A copy of a deed from the public records, the
oriflinal of which was not in the poasesslon of the
plaintiff, \m evidence.

A record of a suit of partition under which the
plaintiff derived his title as a purchaser should not
be excluded because the sale had not been con-
ducted with refirularity, and the decree of sale had
been rendered atralnst iofants, by default, and be-
cause it did not prescribe the manner of the sale.

Strangers to these proceediners cannot object to
a result of which the parties to the decree have not
complained.

A patent from the United States, containing a
saving of the rights of any and all persons claiming
under the Actor Congress of 3d March, 1823, did not
by such saving, create any fiduciary relation be-

7S1

170-188

BXTFKIBMB Court of THB UnITBD t3TAT3B8.

Dbc. Tbbm,

tween the claimants under such Act of Conflrress,
and the patentee.

Possession under such patent is an adverse pos-
session, and enables the patentee to have the benefit
of the Illinois Act of limitations for seven years.

The resJdeace and possession of land for seven

J rears by a tenant inures to the benefit of the land-
ord, so as to secure for him the protection of the
Act.

This protection is not confined to the particular
close upoD which the claimant resides, but also ex-
tends to the entire parcel of land of which the legal
possession has been maintained as a consequence
of bis actual possession and residence.

Argued Feb. 21, 1861. Decided Mcvr, U, 1861.

IN ERROR to the Circuit Court of the United
States for the Northern District of Illinois.
This was an action of ejectment, brought in
the court below by the present defendant in
error.

The trial below resulted in a verdict and

judgment for the plaintiff. The defendant

brought the case to this court by writ of error.

The facts appear in the opinion of the court.

Mr. Charles BallaAce, for plaintiff in
error.

Mr, Archibald Williams* for defendant
in error:

Upon the question of the Statute of Limita-
tions, the counsel relied upon the same author-
ities as in the case af Meehan v. Fortyth.

Mr. Justice Campbell delivered the opinion
of the court:

This was an action of ejectment for a lot of
land in the City of Peoria, in the State of Illi-
nois, commenced by the defendant in error
against the plaintiffs in error.

The title of the plaintiff in the circuit court
is shown by a patent of the United States in
favor of the legal representatives of Antoine
Lapance, who was an inhabitant or settler
within the purview of the Act of Congress ap-
proved 8d March, 1823 (8 Stat, at L., 786), en-
titled " An Act to confirm certain claims to
lots in the Village of Peoria, in the State of Il-
linois," which patent bears date the 1st day of
February, 1847, and is founded upon an official
survey of the 1st of September, 1840. The
plaintiff deraigned his title from the patentees.
In tracing his title he read a document relevant
to the cause from a volume of American State
Papers, Public Lands, selected and edited un-
der the authority of the Senate of the United
States, by its secretary, and printed by Duff
Green. This was objected to, and the question
reserved b^ the defendants. The volumes of
the American State Papers, three of which
were published by Duff Green, under the re-
vision of the Secretary of the Senate, by order of
the Senate, contain authentic papers which are
admissible as testimony without further proof.

WatkiMY. Holman^ie Pet., 25. The plaint-
iff read a cop^ of a deed from the public rec-
ords, the original of which was not iq the pos-
session of the plaintiff, and which, upon inquiry
of the persons with whom it had been deposited
he was informed had been lost. This testimony
authorized the admission of the copy as evi-
dence. The deed in qustion had been regu-
larly recorded. No suspicion attached to the
instrument, and there was no reason to suppose
that the better testimony was fraudulently
withheld or could have been obtained by fur-
ther inquiry. Miji&r v. TiUotson, 7 Pet., 99.

788

He also read in evidence a record of a suit of
partition in the Circuit Court of Peoria County,
which resulted in a decree of sale of the inter-
ests of a number of the parties, under which
the plaintiff derived his title as a purchaser.
The defendants objected to the record and deed
of sale, because the sale had not been conducted
with regularity, and the decree of sale had been
rendered against infants, by default, and be-
cause it did not prescribe the manner of the
sale. These, with other objections, were prop-
erly overruled by the circuit court. The de-
fendants were strangers to these proceedings;
and cannot be allowed to object to a result of
which the parties to the decree have not com-
plained.

The title of the defendants consisted of a pat-
ent from the United States to the defendant,
Ballance, in January, 1888. for a fractional
quarter section of land that includes the lot in
controversy, and containing a saving of the
rights of any and all persons claiming under
the Act of Con^ss of 3d March, 182S (8 Stat,
at L., 786). entitled ** An Act to confirm cer-
tain claims to lots in the Villase of Peoria, in
the State of Illinois." He maide proof that he
had resided on this quarter since 1844, and had
cultivated portions of it for a long time pre-
viously, and had before and since uiat date 1^
other portions of it to tenants who occupied it
under him.aud that the particular lot in contro-
versy had been occupied by one of these ten-
ants, who had upon it a distillery. Among
other instructions, the defendants requested the
court to charge the jury, ** that if they should
believe from the evidence that said fiallance.
being in possession under the title he has ex-
hibited, leased the particular spot of ground in
controversy to Almiron S. Cole more tnan seven
years before the commencement of this suit,
and that said Cole took possession thereof, and
built a steam distillery and other fixtures there-
on more than seven years before the commence-
ment of this suit, and that said Cole held pos-
session thereof, and occupied it as a place of
business, until he sold said establishment to
Svlvanus Thompson, and that Sylvanus
Thompson and his son-in-law, Richard Greeg,
the defendant, occupied the same until the
death of Thompson, and that said Gregg ooca-
pied the same until the commencement of this
suit, the plaintiff is not entitled to recover in
this suit; that it was not necessary for this de-
fense that either the said Cole, Thompson, or
Gregg, should have had his dwelling house on
the particular lot; it is sufficient if they lived
in the vicinity and occupied the lot in contro-
versy as their place of business." The drcuit
court refused to give these instructions, but
charged the jury, " that if Ballance had his
house on one part of the quarter, and his im-
provement extended over and included the lot
m controversy, so as to be connected with his
residence, and to form part thereof, or it was
used in connection therewith, that would, with-
in the meaning of the law, constitute actual
residence. If Ballance built on one part of the
quarter, and this lot was left vacant and unoc-
cupied and unimproved, that would not, as to
that lot, constitute an actual residence.

*' If Ballance, his tenants, or those holding
under him, actually resided on a lot adjoin-
ing lot 68 for seven years iaunediatdy pn-

6ft U.K.

1800.

BaIAjSlSCR Y. F0B8YTH.

188-185

ceding the commencement of this suit, and
during all that time occupied lot 08 as a place
of business, as part and parcel of the premises
so resided on by them, that would constitute an
actual residence within the meaning of the law
as to this lot in controversy. It is proper for
the jury to consider the circumstances of the
subaivision of the land into lots and blocks by
Ballance, in April, 1846, and whether a sever-
ance of the holding as to the particular lots
and blocks so subdivided was thereby enacted.
When ground is subdivided in that manner un-
der our law, there can be no doubt that differ-
-ent lots and blocks may be so occupied as to
constitute an actual residence in them all ; but
ordinarily, in case of subdivision, the construc-
tion of a house on a separate lot or block, and
a residence therein, without any connection
with adjoining or neighboring lots or blocks,
does not constitute an actual residence as to the
whole. It is for the jury to determine whether
the facts and circumstances stated by the de-
fendant, Ballance, or those claiming under him,
made them actual residents of the lot in con-
troversy, for seven years before the commence-
ment of this suit. If they did, then the de-
fendants are within the protection of the stat-
ute ; otherwise not. "

This court, in the cases of Bryan v. Forsyth,
19 How., 834, and a^in in Meekan v. Forsyth,
24 How. , 175, at this term, have decided that
the saving in the patent, under which the de-
fendants claim, did not create any fiduciary re-
lation between the claimants under the A.ct of
Congress of 1828 referred to in it, and the pat-
entee; and that the possession of Ballance, un-
der his patent, was an adverse possession,unless
another relation had been created b^ contract
between them subsequently in the issuing of
the patent. The present mjmiry is, by what
evidence must the actual residence on the land
be supported to enable the patentee to have the
benent of the Act of Limitations for seven
years? And it has been generally held, that
the residence and possession of land for seven
years by a tenant inures to the benefit of
the landlord, so as to secure for him the protec-
tion of the Act ; and that this protection is not
confined to the particular close upon which the
claimant resides, but also extends to the entire
parcel of land of which the legal possession has
been maintained as a consequence of his actual
possession and residence.

Poage v. Chinn, 4 Dana (Ey.), 50.

The case of WQUams v. BaUanee, 28111., 198,
involved a controversy similar to that before the
court.

The inquiry there was as to the validity of
the residence and possession of Ballance to sup-
port his defense of the Statute of Limitations,
it being the residence and possession established
by the testimony in this suit. The Supreme
Court of Illinois inquires whether Ballance oc-
cupied the premises described in the patent
since 1844, by actual residence thereon. ** The
fact," says the court, " is that he did, but he
did not reside upon every square yard of the
premises, nor upon the particular lot. Nor
•vas this necessary. He resided upon the legal
subdivision descnbed in the patent, the evidence
of his title, and possessed and occupied it by
himself and tenants. We think the laying out
the land into town lots did not deprive him of

See 24 How.

the benefit of the Statute of Limitations of 1885,
as to all the fractional quarter, except the par-
ticular lot upon which his house stood. He had
a right to divide it into as many lots, or portions,
or divisions, as he pleased, and put a separate
tenant on each, and their occupation would be
his possession : and the law only required him
to possess and reside upon the premises claimed
by his title papers, but the law does not say
upon what portion he should reside, and, above
all, it does not declare that he should reside
upon every portion of it." The instructions
01 the circuit court are inconsistent with the
law as thus laid down by the Supreme Court.
In our opinion, the possession established by
Ballance in this case was such as placed him
under the protection of the statute.
Judgment r&cened and cause remanded.

Citod-«6 C. 8. (1 Black), 163; 67 U. 8. OB Black). 588,
570, 571 ; 70 U. 8. (8 WaU.), 761; 106 U. 8., 0n; 20 Minn.,
437.

CHARLES BALLANCE, Appt.,

ROBERT FORSYTH, LUCIENE DUMAIN

AND ANTOINE R. BOUIS.

(See 8. C. 24 How., 188-186.)

Chancery jurisdiction — objection to evidence, too
late, (tfier judgment— jurisdiction of Executive
Jkupartment

It Is not allowable to appeal from the Judgrment
of the droult court and Supreme Oourt to a court
of chancery upon the relative merits of the legal
titles involved in the controversy which they had
adjudicated.

Ohjecdon to a survey should have been urged
upon the trial at law; and it is too late after Judg-
ment upon the title to employ it to contest the Is-
suing of the execution.

In the location and survey of claims arising un-
der Acts of Congress like those of May, 1820, and
March, 1828, the Executive Department of the Gov-
ernment has. in general, exclusive jurisdiction, and
all questions arising upon their location and survey
are administrative in their nature, and must be
disposed of in the Land Office.

Argued F^. 2U 1861, Decided Mar, U, 1861.

APPEAL from the Circuit Court of the United
States for the Northern District of Illinois.
The bill in this case was filed in the court be-
low, by the appellant, for the purposes stated
in the opinion of this court.

Judgment was for the defendant, and the
plaintm took this appeal.

Mr. Charles BallaAce« for the appellant.

Jfr. Archibald Williamg^for the appellee.

Mr. Justice Campbell delivered the opinion
of the court:

This is a bill filed by the plaintiff, to enjoin
the execution of a judgment in the circuit court,
and upon which a wnt of error had been taken
to this court and afiSrmed.

The cause in this court was between the same
parties, and the decision of the court is re-
ported in 13 How., 19.

The plaintiff sets forth the claims of the re-
spective parties, and insists that his is the su-
perior right, and that he is entitled to have the
property. But it is not allowable to him to
appeal from the judgment of the circuit oourt

738

mz-Mi

Supreme CSourt ov the Ukitkd Statbb.

Dec. Tbbx,

and Supreme Court to a court of chancery upon
the relatiye merit of the legal titles involved in
the controversy they had adjudicated.

He further objects to the title of his adver-
saries. He insists, that in location of their
claim under the Acts of May 15th, 1820 (8 ^tat.
at L.. 605), and March 8d, 1828 (8 Stat, at L.,
786), referred to in the report of the case as the
source of their title, there was an erroneous lo-
cation and survey, and that a larger extent of
ground was conceded to them than they were
entitled to; that the plan of sui-vey did not
conform to the requirement of Congress, and
that their proofs were not filed in time. If
either of these objections is of sufficient force
to invalidate the title and to render it void, it
should have been urged upon the trial at law,
and it is too late after judgment upon the title
to employ it to contest the issuing of the execu-
tion. But if they are mere irregularities, the
court of chancery has no jurisdiction to notice
them. It is the settled doctrine of this court,
that in the location and survey of claims arising
under Acts of Congress like those of May 15th,
1820 (8 Stat, at L., 605), and March 8d, 1828 (8
Stat, at L., 786), the Executive Department of
the Ckivemmenthas, in general, excluive juris-
diction, and that all questions arising upon
their location and survey are administrative in
their nature, and must be disposed of in the
Land Office.

The plaintiff was aware of the existence of
these claims, and of the jurisdiction to which
their adjustment was confided.

His patent contains an explicit reservation of
the rights of any and all persons claiming under
the Act of Congress of 8d March, 1828 (8 Stat.
at L., 786), entitled, "An Act lo confirm certain
claims to lots in the Village of Peoria, in the
State of Illinois." If he pretermitted his oppo-
sition to their location and survey before the
General Land Office, he is concluded by his
laches. If his opposition was made unsuccess-
fully, the decision of that department upon his
objections is binding upon him.

besides these objections, the plaintiff has in-
troduced into the record a claim for the im-
provements u|>on the lots recovered by the
judgment of the circuit court. It is not at all
clear that the amendments to the bill, in which
this claim is contained, were filed with leave, and
form any part of the bill. It is not charged in
them that the plaintiffs in the suits at law have
opposed any obstruction to his removal of the
improvements, and the entire statement of the
bill concerning them is vague and unsatisfac-
tory. We are unable to find in them any ground
upon which the suspension of the execution of
thejudgment can be justified.

2%e decree of the circuit court is affirmed,

8. C— 18 How., 18.

SAMUEL MASSE Yet al., Plffs. in JEr.,

JOSEPH L. PAPIN.
(See 8. C. 2i How.. 3a&-864.)

Equitable title, sulfject to eaU under latM of Mis-
iouri — mibaequvTU legal tille,9ubject to mortgage
of ancestor.

734

An Imperf eot Spanish title, claimed by virtue of
a oonoessioD, was, by the laws of Mlflsouri, subject
to sale and assignment, and subject to be mortgaged
for a debt.

Where heirs take iands by descent, with the in-
cumbrance of a mortgage attached, they hold them
in like manner that their ancestor held.

The subsequent grant of the lands to the hetrs^br
Act of Congress of 1888. carried the equities of the
mortgagee, under a prior mortgage executed by
their ancestor, with the legal title of which they
took the benefit.

Argued Fa, S6, 1861, Bedded Mar. U* 1S61.

IN ERROR to the Supreme Court of the State
of Missouri.

This action was commenced by Joseph L.
Papin against Samuel Massev and a large num-
ber of other defendants, in the Circuit Court of
Franklin County, Missouri, by a petition for
partition of, and settlement of title to, a certain
tract of land. This court rendered a decision
determining the respective rights of the parties,
and the defendants took the case to the Su-
preme Court of Missouri.

The judgment of the lower court was there
affirmed, and the defendants brought the case
to this court by writ of error.

The case further appears in the opinion of
the court.

Mr. M. Blair, for plaintiffs in error:

The decision of the court below conflicts
with the uniform construction of the law by
this court.

See Stroiher v. Lucas, 6 Pet, 778; 12 Pet.,
458; Les Bois v. BrameU, 4 How., 59; Landes
V. Brant, 10 Kow., 970 -/Burgess v. Graff, 1$
How., 62; Morehouse v. Phelps, 62 U. 8. (21
How.), 294.

These cases decide,

1st. That such claims prior to confirmation
have no standing in a court of law in equity.

2d. That the confirmation inures to the party
by whom the claim is presented.

The facts, that MacksLy, tmder whom Le Dnc
claimed, had presented the claim to the old
Board and that the late Board was restricted
to the consideration of claims which had been
presented to the old Board, is immaterial. In
all the cases, the contesting parties claimed un-
der the same person, and the question was
whether the confirmation inured to those who
had the prior right under the original claimant
or to those who presented the claim; and the
court decided that those who presented the
claim took the title and all others were barred.

Here Mackay's heirs and not his assl^ee or
mortgagee. Le Due, presented the claim, and
Le Due not only presented no claim hiiDself,
but testified for the heirs, thus absolutely pre-
cluding the idea that he had taiy interest in it.
unless upon an assumption which would be
dishonorable to him, both as a judge and as a
man . Nor would such an assumption avail, for
this court would not sanction the fraud which
it supposes by giving his administrator the
land.

Mn S. T. Glover, for the defendant in

error:

The bond made by Mackay was operative to
convey an estate in equity to the land in qnea-
tion.

2 Sto. £q., sec. 175; NewL, Cont, 807.

The confirmation was not to the heirs of

1860.

Knox Co. V. Abfinwall.

876-S8(^

James Mackay, but to Macki^ or his legal rep-
resentatives, and inured to Mackay's assignee,
legal or equitable.

8 How.. 388.

The deeds did not purpose to convey the land
of Delassus. They conveyed only the interest
of the grantors.

18 Mo.. 880; 20 Mo.. 81; 3 Wheat.. 452.
<> If the title to fourteen-thirtieths of the land
ever vested in Delassus. the defendants are con-
cluded by plaintifCs' chain of title.

The foreclosure was regular, and if it were
not. could not be objected to collaterally.

See 27 Mo.. 445.

Mr. JttsHce Catron delivered the opinion of
the court:

This case is brought here by writ of error to
the Supreme Court of Missouri.

In 1806. James Mackay presented his claim
before the Board of Commissioners, sitting at
St. Louis, to have confirmed to him 80,000 ar
pents of land. In 1809. the Board rejected the
claim.

In 1819. Mackay gave a bond in the nature
of a mortgage on 14.000 arpeuts of the land to
Delassus. Papin claimed as assignee of the mort-
gage, which he caused to be foreclosed, and
purchased in the land, and took a title from the
sheriff. Massey and others claim under Mac-
kay's heirs.

The Supreme Court of Missouri decided that
Papin. claiming under the mortgage of Mackay
to Delassus, had a better title than Massey. who
claimed under the heirs. And to reverse this
decision, this writ of error is prosecuted.

The Board of Land Commissioners of 1809
refused to confirm the claim; they were acting
on the title as between the United States and
the clidmant. The government had the power
to grant the land in fee, regardless of the opin-
ion of the Board. Accordingly, in lasi (4 Stat,
at L. , 561),an Act of Congress was passed organ-
izing another Board to examine this description
of Spanish claims, which had been rejected by
the old Board. The new Board, in October.
1832, recommended the claim for confirmation
•' to said James Mackay, or his legal represent-
atives. " James Mackay had died, and his heirs
presented the claim the second time; and it is
insisted that tlie confirmation to them by the
Act of 1886 rejected the mortgage of Delassus,
and that the heirs took the unincumbered legal
title discharged of the mortgage.

An imperfect Spanish title, claimed bv virtue
of a concession, was, by the laws of Missouri,
subject to sale and assignment and, of course,
subject to be mortgaged for a debt. The heirs
of Mackay took the lands by descent, with the
incumbrance attached, and held them in like
manner that their ancestor held. The grant of
the lands to the heirs by the Act of 1886 carried
the equities of the mortgagee with the legal
title, of which he took the benefit— a conse-
quence contemplated by the mortgage itself;
and if the assignment had been in its form a
legal conveyance of the lands, the grantee would
have taken a legal title. And to this effect are
the cases of BwmU v. Penrose, 8 How., 817, and
Jjandes v. Brant, 10 How., 848.

It ($ ordered (hat thejudgmeiU be afflrmed.
See 24 How.

THE BOARD OF COMMISSIONERS OF
KNOX COUNTY, Plff. in Br„

WILLIAM H. ASPINWALL, JOSEPH W.

AL80P. HENRY CHAUNCEY. CHAS.

GOULD AND SAMUEL L. M. BARLOW.

(Bee S. C, 24 How., 876-386.)

Mandamus — tD?iat is-— proper remedy for refiiml
of County Commissioners to levy tax to pay
county bonds — circuit court has authority to-
i8sue--alternaMve writ, when not necessary.

The writ otmandamtts Is a remedy to compel any
person, corporation, public functionary or tribu-
nal, to perform some duty required by law, where
the party aeekinfr relief has no other legal remedy
and the duty sougrht to be enforced is clear and in-
disputable.

Assuming that a general law of Indiana permits
the public property of a county to be levied on and
sold for the ordinary indebtedness of the uountyt
vet, where bonds and coupons of the county were
Issued, under a special Act which provides that the
commissioners of the county shall assess a tax to
pay the interest on the coupons, if the commission-
ers either neglect or refuse to perform this plain
duty, imposed on them by law, the only remedy
which the injured party can have for such refusal
or neglect is the writ of mandamus.

The circuit court had authority to issue the writ
of mandamus in such case.

It is no reason for setting it aside, that a previous
alternative writ had not issued, where the court
gave them an opportunity to comply with the law»
and their excuse for not doing so was equivalent
to a refusal.

Argued Feb. 28, 1861. Decided Manr. U, 1861.

IN ERROR to the Circuit Court of the United
States for the District of Indiana.
This case was formerly before this court (62
U. S., 543), when the judgment of the Circuit
Court of the United States for the District of
Indiana, in favor of the present defendants in
error, in a suit brought by them upon certain
coupons of bonds issued by the present plaint-
iff in error was affirmed. Execution was issued ,
and on the 8d day of June, 1859, the original
plaintiffs, upon their motion, obtained an order
that the execution levy should be set aside. A
few days before, it had been ordered that a writ
of mandamus in the alternative should be forth-
with issued commanding the present plaintiff
in error, to levy a tax for the payment of the
judgment or to show cause, &c. This alternative
manda/mus was quashed. On the 21st of June, the
present defendants in error moved for a peremp-
tory mandamus, to require the plaintiff in error
to levy the tax ; and the mandamus was awsutled
against the resistance of the plaintiff in error,
who brought this writ in error.

Mr. A. 6* Porter* for the plaintiffs in
error:

A mandamus was not proper under the cir-
cumstances of this case, for the following rea-
sons:

I. For want of jurisdiction.

If the Circuit Court of the United States has
power to issue a writ of mandamtu to enforce
the payment of a judgment at law, it derives
that power from the provisions of the 14th sec-
tion of the Judiciary Act of 1789.

'* That all the before mentioned courts of the

NOTB.— ilfandamii8, when wOl issue. See note to
MoCluny v. SilUman, 15 U. 8. (2 Wheat.), a69.

785^

87^-886

BuFEBMB Court of thb Unttkd States.

DiBC. TSB11«

United States shall have power to issue writs of
Mire facias, habeas corpus, and all other writs
not specially provided for by statute, which may
be necessary for the exercise of their respective
Jurisdictions, and agreeable to the principles and
usaees of law."

Tne '' exercise of Jurisdiction" in any sense
in which the writ of mandamus could be called
in aid of it, was complete in this case upon the
rendition of final Judgment. To enforce the
payment of that Judgment by means of this ex-
traordinary writ, would notl>e "a^eeableto the
principles and usages of law. " This state of facts
simply presents the ordinary case of a party
holding a debt of record which cannot be real-
ized by process of execution. And I deny that
it follows that a writ of mandamus, in such a
case, is in any just sense " necessary for the
exercise of jurisdiction," or " agreeable to the
principles and usages of law.**

The duty, imposed by law on the Board of
Commissioners of the County of Knox, now
sought to be enforced, was a duty to levy a tax
for the payment of interest coupons, not Judg-
ments of a court of law.

The holders of those coupons had a right to
go into the state coiuts and enforce the levying
of the tax for their payment bv mandamus; but
they elected a different remedy.

They chose to sue in the ordinary form in the
circuit court, merged their coupons in a Judg-
ment at law, and must rely, for the collection
of that Judgment, on the ordinary and usual
writs in use for that purpose.

If, upon the failure of these, they may resort
to the writ o^ mandamus to compel the pay-
ment of their judgments, on the ground that such
a writ is necessary to the exercise of Jurisdic-
tion, why may it not be used in every case to
compel the payment of iudgments which cannot
be collected in the usual way? The words of the
statute, then, instead of being understood as
words restraining the power to issue the writ in
aid and furtherance of ordinary remedies only,
will become a grant to the circuit courts, of the
power to employ a new and formidable process,
m all cases where the common writs of execu-
tion fail.

The defendants in error rely on the case of
Wayman v. Southa/rd, 10 Wheat, 50, to show
that the words '* necessary for the exercise of
Jurisdiction" apply to proceedings after Judg-
ment as well as before.

This is inapplicable to the case at bar.

The learned counsel for the defendants says
in his brief, after quoting from the opinion of
the court in Wayman v. Southard: " all that is
said above, about writs of execution must be
equally applicable to writs of mandamus,when
they are necessary to carry a Judgment into
effect." Granting this, it must appear that in
the case at bar a writ of mandamus was neces-
sary to carry the Judgment into effect. That is
the touchstone proposed by the counsel for the
defendant and tried b^ that very test. The case
is. in my opinion, against them.

In this case no OMtruction is put in the way
of the ordinaiT writs which," agreeably to the
prindples ana usages of law," may issue upon
Judgments at law. All the remedies which any
such Judgment ordinarily supplies are open to
the parties in this case. But they are said to be
inadequate; yet it does not appear that ample

property could not be found whereon to levy.
The parties then propose to seek another rem-
edy— not a means of carrying into effect the
judgment already obtained, but a separate and
independent proceeding in which they must
begin de now, and conduct a new sujt throagh
the several stages of pleadings. hearing and fi^
Judgment. The judgment already obtained is
not the basis of this new proceeding. The pro-
ceedings in mandamus constitute a sepojate
suit in general.

6 Bac. Abr., 458.

Nor, for another reason, had the circuit court

Jurisdiction to issue the mandamus. Tliat court
lad no right to interfere with the taxing power
of the State of Indiana.

In 7 Humph., 148, it was held that even the
domestic tribunals had no such right It is a
part of the political power of the government,
according to the opinion of that learned court.
With which the Judiciary cannot interfere.

II. A mandamus will not be allowed, where
there is another adequate and specific legal
remedy.

4 Bam. & Ad., 360; 6 Bac. Abr.. 481.
In the present case there are two remedies of
that character, viz. :

1. By execution. By the law of Indiana a
Judgment against a county is a lien upon the
public property thereof, which may be scdd
upon execution to satisfy the Judgment.

IRS., 1852, p. 229, sec. 8.

2. There was a specific and complete remedy
by appeal. Where the Board of Conunladonen
refuse to perform any duty, an appeal may be
taken from such refusal, to the circuit court of
the county; and the latter is required upon Uie
fact of such duty being ascertained, to pert ono
such duty or to enforce the performance of it
by the Board of Commissioners.

1 R. S..pp. 228,229, sec. 81 ; see,al80.18 P^.
279,404; 6 Bac. Abr., 481, 483; 2 Johns. Gas. T^.

III. The mandamus was not a proper rem-
edy,, because by the Act of 1849 the Boani was
only required to levy a tax to pay the interest
as such.

IV. The mandamus in the present case di-
rects that the tax shall be levied fonhwiUt
The Act of 1849 provides that it shall be levied
at the time of making the annual levy of county
taxes. Under the general Statute of Indiana, 1
R. S., 106, providing for the assessment and
collection of taxes, any departure from the
precise course of proceeding required by the
statute renders sales for non-payment, void.

V. The peremptory mandamus ought not to
have been issued because it was not preceded
by an alternative writ.

See 6 Bac. Abr., 420, 450, 452; 1 ChiL Pr..
808; 12 Pick. Statutes, 189.

Messrs, S* F. Vinton and Samuel Jndah*
ftir defendants in error;

Two inquiries arise in this case :

Does the Constitution confer on Congress the
power to authorize the circuit courts to issue
the writ of mandamus when necessary for tlK
satisfaction of their judgment?

2. If it does, has Congress conferred on them
that authority?

The last clause of the 8th section of the Ui
article of the Constitution confers on Congreas
authority to make all laws which may be nee-
essaxy and proper for carrying into execution

ineo.

Knox Co. v. Asphtwall.

876-885

the powers vested in the government, or any de-
partment or officer ther^, the 11th section of
the Judiciary Act of 1789, by virtue of this
clause, confers upon the circuit courts of the
United States, jurisdiction in certain cases where
the suit is between a citizen of the State where
the suit is brought and a citizen of another State.
The circuit court then has conferred upon it
by this law, Jurisdiction over the controversy
between these parties, and that same 8th clause
of the Constitution empowers Congress to make
all laws which may be necessary and proper for
carrying that jurisdiction into full execution
and effect. Consequently, if a writ of manda-
mus be necessarv and proper, the circuit court
is authorized to iBSue the writ.

See Wayman v. Southard, 10 Wheat., SO.

Assuming, then, that Congress has power to
make laws for carrying into execution all judg-
ments which the Judicial Department has power
to pronounce, we proceed to the second ques-
tion.

The Judiciary Act of 1789, after having con-
ferred on the several courts of the United States
their respective ^risdictions over the subjects
subjected to their co^izance and upon which
thev may pronounce judgment, proceeds, in the
14th section, to provide for cariying them into
full and complete execution.

Under this section, the power of the circuit
courts and of all other courts of the United
States is limited to the issue of writs for the sole
purpose or object of exercising their jurisdic-
tions; but for the accomplishment of that ob-
ject and purpose, the power is given to issue
* ' all writs, " whether of mandamuM, or any other
writ not specially provided for by the statute,
which may be necessary and are agreeable to
the principles and usages of law.

A construction was given to this 14th section,
in respect to the extent of the power conferred
bv it on the circuit courts to issue writs in the
above mentioned case of Wayman y. Southard,
10 Wheat.. 50.

In that case it was insisted by one of the
parties that the power conferred by that section
was limited to process anterior to the rendition
of the judgment.

The court say there is no reason for supposing
that the general term " writs " is restrained by
the wor(£ "which msy be necessary for the ex-
ercise of their respective jurisdiction^ to writs
of original process," or to process anterior to
judgments. The jurisdiction of a court is not
exhausted by the rendition of its Judgment, but
continues until that judgment shall oe satisfied.
It is, therefore, no unreasonable extension of the
words of the Act to suppose an execution neces-
sarv for the exercise of jurisdiction."

All that is said above about writs of execution
must be equally applicable to writs of manda-
mu$, when they are necessary to carry a judg-
ment into effect.

This decision establishes two propositions,
which have an important bearing on the case
now before the court —

1st. That the jurisdiction of the circuit court
over a case continues until its judgment is satis-
fled.

2d. That it has power to issue such writs,
both before and after judgment, as may be nec-
essary for the exercise of its jurisdiction, and
are agreeable to the principles and usages of law.

8ee 24 How. U. S., Book 16.

From these prepositions it would seem to
f ollow,as a necessary corollary .that if in any case
the writ of mandamus was necessary for the
satisfaction of the judgment, the case itself was
one where, bv the principles and usages of law,
the writ would issue, then the I4th section con-
fers on the court power' to issue it for that
special purpose.

The question of the extent of power given by
the circuit courts by this 14th section to issue
writs of mandamus first came up for decision
in this court in the case of MclnUre v. Wood, 7
Cranch, 004.

That was an application to the Circuit Court
of the United States in Ohio for a writ of man-
damus to compel a register of a land office to
issue to the plaintiff a final certificate of pur-
chase of a tract of land. The court laid down
the rule that the power of the circuit courts to
issue the writs is confined exclusively to those
cases in which it may be necessary to the ex-
ercise of their jurisdiction. Now, in the present
case, the*right of the defendants in error, who
are citizens of New York, to sue in the circuit
court, arises under the Constitution and the 11th
section of the Judiciary Act, and the inference
from what is said by the court in the above case
is, that the 14th section covers the whole ground
of the 11th section and no more, and provides
for carrying into execution all the jurisdiction
given by the latter section. If this be so, it is
plain that the circuit court has jurisdiction and
power to issue the writ of mandamus in tlys case.

See, also, KendaU v. U. S, 12 Pet., 615;
Marbury v. Madison, 1 Cranch. 188; 12 Pet.,
621 ; MeGuUoch v. Maryland, 4 Wheat., 816.

The common law writ of mandamus has
alwavs been recognized in the Practice Acts of
the State of Indiana, and such are substantially
the provisions in the revised Statutes of 1848,
p. 539.

See, also. Revision of 1852, 2d vol., pp. 197,
198.

We contend, therefore, that by the Act of
Congress, by the common law, andbytheprac-
tice of the courts of Indiana, the Circuit Court
for the Indiana District had power to issue a
mandamus in this case, because necessary for
the exercise of its Jurisdiction, to enforce its
jurisdiction by the satisfaction of its Jud^^ent. '

There is no novelty in the fact of this case —
a judgment by a court of competent jurisdic-
tion ^thout power of enforcing satisfaction by
the ordinary writs of execution. Nor is there
any novelty in applying the mandamus as a
remedv in the place of Uie ordinary execution
in such case. Tiiis thing has been done under
precisely such circumstances.

Beg. V. St, Gatharine^s Dock Go., 1 Nev. &
Man., 121; 4 Barn. & Ad., 860; Wormwell v.
HaUstons, 6 Bing., 676.

So, if a corporation neglects to raise, by the
exercise of Its legal power, the assets to satisfy
a Judgment, the court would compel them by
mandamus.

Heg.v. Vietoria Park Co., 4 PerrvA D., 689;
1 Q. B., 292; King v. Payn, 6 Adol. & E., 404;
1 N. P.. 524; King v. London, 5 Barn. A Ad.,
288,287.

So, a peremptory writ mav be issued in the first
instance as well as in England.

Queen v. Mayor of Eye, 9 Adol. & £., 676;
Keg. V. Fbx, 2 A. & E. (N. S.), 246.

47 7S7

876-886

SUFBSKB COUBT OF THB UhFTBD BTATSa

Dbc. Tbbm,

As under the present Indiana Statute, 2 Rev.
Stat.. 52, 198, sec. 741.
So in a clear case in Kentucky, 11 B. Mon.,

148.

In this case there was no question to examine.
The case had been tried and judsment rendered,
and the rights of the parties aU settled. The
duty of the commissioners was declared by law.
They had no discretion. There was nothing
left to try.

Ang. & Ames, Corp., sec. 729, wytei, p. 809.

Mandamus in Indiana is a civil remedy. The
use of the name of the King or State is only
nominal.

Brofon ▼. O'Brien, 2 Ind., 481.

Mr, JusUee CMer delivered the opinion of
the court:

The plaintiffs in error were defendants in a
suit by AspinwaU and others, in which a judg-
ment was recovered for interest coupons on
bonds issued by tiie Corporation. The cause
was removed to this court, and may* be found
reported in 21 How., 589. The ludgment of
the circuit court was affirmed, and the record
remittcMd.

In order to enforce the execution of this
Judgment, the plaintiffs moved for a manda-
mtu to the commissioners, to compel them to
levy a tax to satisfy the Judgment. The record
shows that the Board of Commissioners ap-
peared in the circuit court and resisted the mo
tion, pn several grounds but chiefly that the
court had no Jurisdiction to issue a mandamus
in this case.

The Act of Assembly of Indiana, which au-
thorized the issue of the bonds and coupons
which were the subject of the litigation, may
be found in the former report of the case. 21
How., 542.

It appears that by the 8d section of tliis Act
it is made the duty of the commissioners, for
the purpose of paying the interest due on the
bonds, *' at the levying of the county taxes for
each year, to assess a special tax, sufficient to
realize the amount of the interest to be paid for
the year."

This the commissioners had not done, and
refused to do so, on notice and request of the
defendants in error.

Now, it is not alleged nor pretended but
that, if this Judgment had been obtained
against the Corporation in a state court, the
remedy now sought could have been obtained;
for it must be admitted, that, according to the
well established principles and usa^ of the
common law, the writ of mandamus is a rem-
edy to compel any person, corporation, public
functionary, or tribunal, to perform some duty
required by law, where the party seeking relief
has no other legal remedy, and the duty sought
to be enforced Is clear and indisputable. That
this case comes completely withm the category
is too clear for argument; for, even assuming
that a general law of Indiana permits the pub-
lic property of the county to bie levied on and
sold for the ordinary indebtedness of the coun-
ty, it is clear that the bonds and coupons is-
sued under the special provisions of this Act
were not left to this uncertain and insufficient
remedy. The Act provides a special fund for
the payment of these obligations, on the faith
and credit of which they were negotiated. It

788

is especially incorporated into the contract,
that this Corporation shall assess a tax for the
special purpose of paying the interest on these
coupons. If the Uommtesioners either n^lect
or refuse to perform this plain duty, ImfMsed
on them by law, the only remedy whkdi the
injured party can have for such refusal or neg-
lect is the writ of mandamus,

Whv should not the Circuit Court of the
United States be competent to give to suitors
this only adequate remedy?

By the common law, the writ of mandamus
is granted by theKlng's Bench, in virtue of its
prerogative and supervisory power over inferior
courts. The courts of the United States can-
not issue this writ by virtue of any supervisory
Cower at common law over inferior state tn-
unals. They can derive it only from the
Constitution and laws of the United States.

The Jurisdiction of Uiese courts is, by the
Constitution, extended to ''controversies be
tween citizens of different states." Conmss
has authority to make all laws which sh^l be
neoessarv and proper for carrying this iuris-
diction into effect. The Jurisdi&on of the
court to give the judgment in this case is not
disputed: nor can it be denied, that by the
Constitution, Congress lias the power to make
laws necessary for carrying into execution all
its judgments. See Wa^man v. Southard, 10
Wheat. , 22. Has it done so?

By the 14th section of the Judiciary Act of
1789 (1 St. at L., 78), it is enacted "that ooun»
of the United States shall have power to issue
writs of scire facias, habeas corpus, and all
other writs not specially provided for by stat-
ute, which may be necessary for the exerciae of
their respective Jurisdictions and agreeable to
the principles of the common law.'^

Now, the "jurisdiction" is not disputed,
and it is *' necessary " to an efficient exercise
of this jurisdiction, that the court have author-
ity to compel the exercise of a minlsteriai duty
by the Corporation, whidi by law they m
bound to perform, and hy the performanoe of
which alone the plaintiff's remedy can be ef-
fected. The fund to pay this Judgment, by
the face of the contract, is a special tax laid and
to be collected by defendants. They refuse to
perform a plain dutv. There is no other writ
which can afford the party a remedy, which
the court is bound to afford, if within its coo-
stitutional powers, except that afforded by thi»
writ of mandamus.

It is *' agreeable to the principles of the com-
mon law,'* and, consequently, within the cate-
gory as defined by the statute.

A court of equity is sometimes resorted to as
ancillary to a court of law in obtaining satis-
faction of its ludgments. But no court, hav-
ing proper Junsdiction and process to compel
the satisfaction of its own judgments, can be
justified in turning its suitors over to another
tribunal to obtain Justice. It is no oblection.
therefore, to the use of this remedy, that the
party might possibly obtain another by com-
mencing a new litigation in another tribunal

We are of opinion, therefore, that the circuit
court had authority to issue the writ of smu-
damus in this case.

It is no reason for setting it aside, that a pre-
vious alternative writ had not issued. The no-
tices served on the Commlasionere gave them

«4 U.8.

1800.

Mkdbbrbt v. Ohio.

418-415

every opportunity of defense that could have
been, obtained by an alternative mandamitu.
There was no dispute about facts which could
affect the decision. The court ffave them an
opportunity to comply with the oemand of the
pudntiffs; their excuse for not doing so was,
palpably, "a mere colorable adjournment or
procrastination of the performances of the act,
for the purpose of delay." It is equivalent to
a refusal. Having refused to perform the duty
which the law imposed upon them on the
proper day, without even the pretense of a rea-
son for such conduct, the peremptory mandor
mtis was very properly awarded, commanding
the duty to be performed " forthwith."

The judgment of the eircttUwurtu, therrfare,
affirmed, with eoeU,

ated-78 U. B. (fl Wall.), 108,482 : 74 U. 8. (7 WaUJ
618; 76 tJ. 8. (9 Wall.), 417:96 tJ. 8., 807: JOB U. 8^
40; 4 Dill., 206: 5 Dlll.,8t8; lHuffbe8,Q4, 286; 80
N. J. Law, 601; 84 Ind., 214: 12 Am. Rep., 480 (7
" I., 470).

ARNOLD MEDBERRY, JOHN LAW-
HEA.D, ROBT. H. NUOBN and ABNER
J. DICKINSON. Plffe, in Br„

THE STATE OP OHIO.

(8ee 8. C, 24 How., 418-416.)

JuriadietiGn to review itate Judgmentn — gueetion
decided must appear in pleadings, or exeep-
tione, or by eertifieate — thtxt state Act was in
eonJUet with state Constitution, famishes no
ground of renew.

Id order to give jurisdiotion under the 26th seo-
tion of the Judloiary Act, It must appear from the
record of the case, either In expreaa terms or by
clear and neooflaaiy Intendment, that one of the
queetloiia which thu court has jurisdiction to re-
examine and decide was actually decided by a
state court.

This may be ascertained either from the plead-
ings* or by bill of exceptions, or by a certificate of
the court. But the assignment of errors, or the
published opinion of the court, cannot be reviewed
for that purpose.

Where it does not appear that there was any
<x>mplalDt tha ta state Act was contrary to the Con-
stitution of the United 8tatee, and the only ques-
tion presented to the court, and dedded by them,
was, whether the provisions of the state Act were
oonsisteot with those of the new state Constitution,
this court has no Jurisdiction.

Argued Mar, i, 1861. Decided Mar. 14, 1861.

IN ERROR to the Supreme Court of the State
of Ohio.

ThiB action was commenced by the present
plainti^Ts in error, in the Court of Common
Fleas of Franklin County, Ohio, praying dam-
ages for the breach of a certain contract.

Judgment was for the plaintiffs.

The Attorney- General of the State brought er-
ror to the Supreme Court, and the Judgment
of the court of common pleas was reversed.

State V. Medberry, 7 Ohio St.,. 522.

The present writ of error is brought to re-
view this Judgment of reversal.

Nora.— JurfeeUetion of U. S. Supreme Court to de-
clare stale law void, as in con/Uet with stale oonetUu-
Uon; to revise decreee of slaU courts as to eonstruC'
tion of staU latos. Power of state courts to construe
thetr own statutes. See note to Jackson v. Lam-
phlre, 28 U. 8. (8 Pet.), 280.

See 24 How.

A motion was made to dismiss the writ of
error, as stated in the opinion.

Mesers. C. P. Woleott. Atty^Gen. of Ohio,
and E. M. Stajitoiif for the defendants in
error.

Mr. G. E. Pni^li* for the plaintiffs in error.

Mr. Justice CMer delivered the opinion of
the court:

The defendant in error moves to dismiss this
case for want of jurisdiction, because the rec-
ord does not present any question which this
court has authority to re-examine, by the 25th
section of the Judiciary Act (1 Stat, at L., 78).

The construction of this section has been so
often before this court, and the cases are so
numerous which define and eBtablish the con-
ditions under which we assume Jurisdiction,
that it would be tedious to notice them, and
superfluous to repeat or comment upon them.

For the purposes of this case, it is only nec-
essary to say, "that it must appear from the
record of the case, either in express terms or
by clear and necesiuiry intendment, that one of
the questions which this court has Jurisdiction
to re-examine and decide was actually decided
by the state court,"

This may be ascertained either from the
pleadings, or by bill of exceptions, or by a cer-
tificate of the court. But the assignment of
errors, or the published opinion of the court,
cannot be reviewed for that purpose. They
make no part of the record proper, to which
alone we can resort to ascertain the subject-
matter of the litigation.

In this case, the declaration counts upon a
contract made by the plaintiffs with the Board
of Public Works of Ohio, in 1856, for keeping
a portion of the canal in rroair for five years.
It avers performance and readiness to per-
form, and that those officers, acting under and
by authority of an Act of Assemblv of Ohio,
entitled **Aa Act making appropriations for
the public works for 1867," " in violation and
in open disregard of such contract, did wrong-
fuHv hinder and prevent," Ac.

The Supreme Court gave Judgment for the
defendants on a demurrer to this declaration.

It is not averred in the pleadings, or any-
where on the record, that this or any statute of
Ohio was void, because it impaired the obliga-
tion of contracts.

The onlv legitimate inference to be drawn
from the race of this record is, that the Su-
preme Court decided that the Board of Public
Works had no authority to make such contract.
If we go out of the record to search for the
reasons, we find no evidence that. there was
any complaint that the Act of 1867 was con-
trarv to the Constitution of the United States,
or that the court gave their Jud^ent for the
defendant on account of any of its provisions.
It is not referred to, except for the purpose of
showing that the plaintiffs might bring their
suit aflainst the State for damages. The con-
tract declared on was made by virtue of an
Act of Assembly of 1845. In 1851, the people
of Ohio formed a new Constitution. This con-
tract was made in 1856.

The only Question presented to the court,
and decided bv them, was, whether the pro-
visions of the Act of 1845 were consistent with
those of the new Constitution.

78»

415-ia0;42(M23

Sop&EUiB Court of tob Uritbo Btatks.

Dbc. Tbrm.

This is a question of which this court has no
authority to take judicial cognizance.
The writ of error m, therefore, cUgmuaed.

CitGd-06 U. 8., 140.

JAMES D. PORTER bt al.. Plffs, in Er.,

BUSHROD W. FOLEY.

(See 8. Cm 24 How., 416-^SO.)

Where record does not shew a question decided by
state court, reviewable here, case wiU be dis-
missed— toheiher state Act was within authority
of Legislature f not remewahle.

Where the record does not show that any ques-
tion arose or was decided by the state court, which
this court has authority to re-ezamlne by virtue
of thP 25th section of the Judiciary Act, the writ
of error must be dismissed.

Where the only question in the case was, whether
an Act of Assembly of Kentucky, authonzlnflr an
executor to sell the real estate of minors, was a
Talld exercise of power by the Leirlslature, this
court has no authority to re-examine the case.

Argued Feb. 26, 1861. Decided Mar. U, 1861.

IN ERROR to the Court of Appeals for the
State of Kentucky.
This was a petition filed by the plaintiffs in
error in the Circuit Court of Kenton County,

Kentucky.

The plaintiffs connected themselves with a
grant from the Commonwealth of Virginia to
James Welsh. The defendant claimea under
the same title, but sought to prove title in him-
self through the Acts of the Lesrislature of Ken-
tucky, of Nov. 10 and Nov. 26, 1828.

The jury, under the direction of the court,
found a verdict for the defendant. The Ken-
tucky Court of Appeals afQrmed this judg-
ment, and the original plaintiffs brought the
case to this court by writ of error.

A motion was now nuide to dismiss the case
for want of jurisdiction, as stated in the opin-
ion of the court.

Mesrrs. James Harlan* D. Mooar» and
James O'Hara* for defendants in error.

Mr. K. Headlnir^on, for plaintiffs in error.

Mr. Justice €Wer delivered the opinion of
the court:

The record of this case does not show that
any question arose or was decided by the state
court, which this court has authority to re-ex-
amine by virtue of the 26th section of the Ju-
diciary Act. , . .

Wi\hout entering into a tedious analysis of
the case, it is sufficient to state, that the chief
or only question in it was, whether an Act of
Assembly of Kentucky, authorizing an execu-
tor to sell the real estate of minors, was a valid
exercise of power by the Legislature.

The counsel for plaintiff objected to the ad-
mission of the deed made in pursuance of such
authority, '* because said Act and supplement
were unconstitutional and void."

This objection was very properly construed
by the court as having reference to the validity
of the Act of the Le^slature of Kentucky, not
as contrary to any provision of the Constitution
of the United States, but as raising the ques-

710

tion whether the Legislature had a power un-
der the constitution of that Btate, by genenl
or special enactment, to authorize the sale of
real estate of infants. The court decided that
it had such power; and if it had, it is abund-
antly evident that there is no article nor clause
in the Constitution of the United Stales whidi
could interfere with it.
Let the writ of err^r be dismissed.

8. 0.-83 U. 8. (21 How.), 806.
ated-78 U. 8. (6 Wall.), 246.

WILLIAM C. REDDALL, Plf. in Br.,

WM. H. BRYAN, ALFRED L. RIVES,

WM. H. PILES, JOHN CAMERON, JA8.

PAYNE. CHA8. HUTCHINSON ato

JOHN MOORE.

(See 8. Cm 2i How., 420-428.)

Order affirming refusal of injunction, not final

judgment.

Where the oirouit court of a State refUaed an in-
Junotton,and from the order of refusal the plaint-
iff appealed to the state court of appeals, and that
court affirmed the order of the circuit court and re-
manded the case, and from this decision of the state
court of appeals, the case is here upon writ of er-
ror, the appeal to this court cannot be sustained.

The case is still pendinir, and there is no llnal de-
cree ; nor is there in the plaintifrs bill any rlyht
claimed under the laws of the United States ; on the
contrary, the claim is a^nst the rights asserted by
the United States, and exercised by the agents of
the irovemment under its authority.

Argued Mar. i, 1861. Decided M€»r. I4, 1861.

IN ERROR to the Court of Appeals of the
State of Mainland.

This was a bill in equity filed by the present
plaintiff in error, in the Circuit Court for Mont-
gomery County, Maryland, for certain alleged
trespasses, and asking injunction against furiber
trespasses.

The circuit court refused the injunction, a9
did also the Court of Appeals of Maryland, on
appeal.

From the last decision the case was brought
to this court on writ of error.

This was a motion to dismiss, under the cir-
cumstances stated in the opinion.

Messrs. J. 8. Tjwm and C. F* Hayw. for

plaintiffs in error.

Mr. Atty-Gen. Stanton* for defendants In
error.

Mr. Chitf Justice Tajiey delivered the opin-
ion of the court:

This is a writ of error to revise the decree of
the Court of Appeals in Maryland, affirming a
decree of the Circuit Court for Montgomery
County, in that state.

This ciise, as it appears on the record, is this:

The bill in equity of the plaintiff in error.
filed in the Circuit Court ior Montgomery Coan-
ty, in Maryland, alleges that the defendants
have trespassed on land of his in Montgom-
ery County, in Maryland, digging it ap and

Nora.— TfTtot is •• pnal decree " orjuOgment oftUUe
or other eourU from which appeal lies. See note to
Gibbons v. Ogden, 19 U. S. <6 wheat.). 44B.

«6 U. ft.

1860.

Shbirburn v. Db Cordoya.

428-426

erecting abutmenU and structures for an aque-
duct, and 80 breaking up and dividing the land
as to render it incapable of tillage, and inflict-
ing great and irreparable damage upon the com-
plainant; and that the defendants meditate, for
completing the aqueduct, still further damage,
of the same aggravated character, to the land,
by digging to great depths of twelve to fifteen
feet, and at other points raising embankments
and building walls, and in conducting through
the land a large and constant stream of water,
for the sole use of the aqueduct.

The bin further states that the defendants
claim to thus act under authority of the Ex-
ecutive of the United States, unsanctioned,
however, as the bill alle^, by any action of
Conjgress, and for supplying water to the cities
of Washington and Georgetown, and under
color of an Act of the Legislature of Maryland
(session of the year 1853, chapter 179), purport-
ing to authorize the United States "to pur-
clukse land in Maryland for so supplying water,
through construction of dams, reservoirs, build-
ings, and other works," and in case of sale not
being agreed by owners, to allow the United
States to adversely appropriate to herself the
land, by condemnation and on valuation, to be
eflPected in manner as provided in case of the
Chesapeake and Ohio Canal Company's occa-
lEdons for land and materials for that company's
works.

The bill also avers that no such purchase was
authorized by Congress, nor any attempt ever
made on behalf of the United States toward an
agreement for the purchase of complainant's
lands, and insists that these pretented sanctions
of the A.ct of the Maryland Legislature, and of
the United States' Executive, are repugnant to
the Constitution of the United States and of
Mairland, and that the land is thus intruded
on for no public purpose of Maryland, nor for
any connected wiUi the United States as such,
and of a federal character, nor even so declared
in the Maryland Act of Legislature, or in any
action of Congress. And the bill prays injunc-
tion, to prevent the trespass and encroachments
complained of from being carried on. The cir-
cuit court refused the injunction, and from the
order of refusal, the plaintiff appealed to the
court of appeals. That court affirmed the order
of the circuit court and remanded the case.

From this decision of the court of appeals,
the case is here upon writ of error.

It is evident, from this statement, that the
appeal to this court cannot be sustained. In
the first place, the decree of the court of appeals
merely affirms the decree of the inferior court,
and remands the case. It is, therefore, still
pending, and there is no final decree. And al-
though the State of Maryland in her own courts
may authorize an appeal from such an interloc-
utory order, it cannot affect the lurisdiction
of this, which is governed by the Act of Con-
gress, and that Act authorizes the writ of error
only in cases where there is a final decree or
juagment.

In the second place, we do not see in the
plaintiff's bill any right claimed under the laws
of the United States. On the contrary, the
claim is against the rights asserted by the iJnited
States, and exercised by the agents of the gov-
ernment under its authority; and even if there
had been a final decree by the dismissal of the

Bee 94 How.

bill, in addition to the refusal of the injunction,
we perceive, no ground upon which the writ of
error could be nmintained under the 25th sec-
tion of the Act of 1789. 1 Stat, at L., 78.
It i8,thsrefore,diamisiedfor want ofjurMUeHon,

JOSEPH A. SHEIRBURN, Plff, in Er.,

JACOB Db CORDOVA et al.
(Bee 8. C. 24 How., 4S8426.)
Beeovery of land — legal UtU neeesiary.

In the courts of the United States suits* for the
reoovery of land oaa only be maintained upon a le-
8:al title, not upon an Incipient equity.

Fenn v. Holme, 61 U. 8., affirmed.

SubmiUed Feb. 26, 1861. Decided Mar. U, 1861.

IN ERROR to the District Court of the United
States for the Western District of Texas.

This was an action of trespass brought by the
present pldntiff in error, in the court below, to
try title to a tract of land.

Defendants pleaded —

1st. The general issue.

2d. Possession under title and color of title.

8d. The plaintiff's title consisted in a location
which had been abandoned.

The trial resulted in a verdict and judgment
for the defendants, and the plaintiff sura out
this writ of error.

The point on which the case turned appears
in the opinion of the court.

Mewre. W. G* Hale and C. Robinson, for

the plaintiff in error.

Mr. G^org^ W. Paschal* for defendants
in error:

Mr. Juetiee Campbell delivered the opinion
of the court:

This was a suit by the plaintiff to recover a
parcel of land in the County of Guadaloupe, in
the State of Texas. The title of the plaintiff
consists of certain entries of head rights em-
bracing the land in dispute. One of these is in
these words: Joseph A. Sheirbum, assignee .of
Victor Ed. Gaillon, enters one third of a league
of land, situated on a noted island, about six
miles above the Town of Walnut Springs, and
extending on the main land on the northeast
side of the Guadaloupe River for quantity; the
said location is also a short distance below a
very elevated mound on the west of the river.
Certificate 222. Harrisburg County, October
16, 1838. In January, 1853, the plaintiff applied
to the District Surveyor of Guadaloupe County
for the survey of this and other land embraced
in the entries, who declined to execute the sur-
veys, but it is aamitted that the entries cover
the land in controversy. The defendants relied
upon a Mexican grant, issued in 1881, in favor
of Antonio Maria ISsnourizar, for eleven leagues
of land, and which embraces the same land.
The district court pronounced this grant to be a
valid appropriation of the land described in it,
and the plaintiff alleges that there is error in
that decision.

By a Statute of Texas, "all certificates for
head rights, land scrip, bounty warrants, or any
otlier evidence of right to land recognized by

711

42(M85

SUFRBIOB OOTTBT OF THB UmTBD StATBS.

Dbc. Tbbm,

the laws of this goYernment, which have heen
located or surveyed, shall be deemed and held
as sufflcleiit title to authorize the inaintenance
of actions of ejectment, trespass, or anv other
legal remedy given by law/* Hart. Dig., art.
3,280. The testimony adduced by the plaintiff,
it would seem, would have authorized a suit in
the courts of Texas, where rights, whether le-
gal or equitable, are disposed of in the same
suit. But this court has established, after full
consideration, that in the courts of the United
States suits for the recovery of land can only be
maintained upon a legal title. It is not con-'
tended in this case that the plaintiff has more
than an incipient equity. This question was so
fully considered by the court inlfenn v. Moime,
21 How., 481, that a further discussion is un-
necessary.
Judgment of the distriet court, affirmed.

ALFRED TRACY, Surviving partner of
Edwd. Tracy, Pff, in Er,,

WM. HOLCOMBE.

(See 8. C, M How., 428-427.)
Final judgment — order for new trial^'is not.

Where the case has been brought here by writ of
error directed to the Supreme Court of a Stateumd
it appears that the Judflrment which it is proposed
to revise is a Judflrment reversin^r the decision in
the court below, and awarding a new trial ; held,
that there is no final judflrment in the case, and the
writ must be dismissed for want of Jurisdictioa.

SubmiUed Mar. 8, 1861, Decided Matr, 14, 1861,

IN ERROR to the Supreme Court of the State
of Minnesota.
The only point considered is stated in the
opinion.

Meeere, L A. Rockwell and P. PhilUps*
for plaintiff in error.

Mr, Chitf Juelice Tajiey delivered the opin-
ion of the court:

This case has been brought here by writ of
error, directed to the Supreme Court of the
State of Minnesota. But upon looking into the
transcript, it appears that the judgment, which
it is proposed to revise, is aludgment reversing
the decision of the court below, and awarding
a new trial.

'Diere i»tthertfore,nofnal judgment in the case,
and the writ muet be dumisiedfor want ofjurie-
dieHon in this court

ated--86 U. 8. (18 WaU.), 588 ; 87 U. 8. ( SO WalL),
<64;9in.8^517.

J AS. H. SUYDAM, Plff, in Br„

WM. H. WILLIAMSON.

(8. C, 84 How.t 4^-^486.)

State laws gowm a$ to title and tranrfer of real
property — thie court will follow etate rule of
property, even tf contrary to its own opiniane.

The cases of Willtamson v. Berry, 40 U^. (BHow.),
486, 648; Williamson v. The Irish Prert^neriaa
Church, 48 n. 8. (8 How.), 865; and WilUamsoo ▼.
Ball. 40 U. 8. (S.How.), 566, examined.

Where the subject of the dispute is real piopcrtj
situated within a 8tate,her laws exclusively guvera
in respect to the riirhta of the partieB, the modes of
the transfer, and the solemnities which should ac-
company them.

The power to establish federal courts, and to
endow them with a Juriadiotion. affords no pretext
for abrofiratinff any established law of property, or
for removinir any oblisration of her citueos to sub-
mit to the rule of the local soverelirn.

Where a contrary opinion to that expreaed by
this court has prevailed in the courts of a 8tate,and
become a rule of property there, this court, with-
out re-examintnsr their own opinion, or iw^Miw
any attempt to account for or to reconcile thedif-
ference, will apply the rule adopted in such State, to
the determinanon of controversies existing there.

Submitted Mar, 5. 1861, Bedded Mar, 14, 1861.

IN ERROR to the Circuit Court of the United
States for the Southern District of New
York.

This was an action of ejectment brought by
the present defendants in error in the court be-
low, to test the validity of a deed from Thomas
B. Clark to Peter Mclntyre, made under and
by virtue of certain Acts of the L^rislature, and
orders of the Court of Chancery of the State of
New York.

Judgment was rendered in favor of the plaint-
iffs and the defendants brought the caae to this
court.

The facts of the case appear in the opinion
of the court.

Mr, K. Dajie ElllnirwcM>d« for the plaint-
iff in error:

This court in some cases pooBgoeca azduaive,
and in others concurrent Jurisdiction. In
cases of concurrent lurisdiction, in order to
avoid a conflict of Juaicial authoritieB between
the federal and state tribunals, this court has
uniformly adopted and followed the dedwioiis
of the state courts of last resort:

1st In cases where the title to land is in-
volved, this court is governed by the lex rei eHm,

12 Wheat.. 168: 1 Pet., 670; 6 Pet., 891; 6
Pet., 161, 898; 2 How., 76; 11 How., 287; 6
Cranch, 284, 421; 9 Cranch. »7, 164. 466; 10
Wheat., 162, 202; 14 How.. 488; 16 How.. 421:
16 How.. 276; 69 U. S. (18 How.), 605; 61 U.
S. (20 How.), 1.

2d. Even where titles to land are not in-
volved, it appears that this court has followed
the decisions of the state courts of last resort.

Bank of HamUtan v. Budley, 2 Pet., 499:
Bank of V, S. v. DamA, 12 Pet, 46; NemmOk
V. ShOdim, 7 How., 812.

This court respects the decisions of the state
tribunals upon their local statutes in the same
manner as the state courts are bound by the de>
cisions of this court in construing the Conatitu-
tion, laws and treaties of the Umon.

S^mendoffY, Ta^, 10 Wheat., 168.

The decisions of the courts of the State of
New York upon the question at iasae may be
found in TwiiU v. Jlkirn&y, 14 N. Y., 425; Oeck-
ran v. Van durUny, 20 Wend., 877;

NOTB.— ITTiatfiii "^noZ deeru " orjudomeni of state

or other eowrUfrom which appeal Uee, Bee note to
Oihhons V. Ognen, 19 U. 8. (6

S Wheat), 448.

or devise, and ae to eonetruetion of etaU etaimu^
see note to Clark v. Graham, 19 U. 8. (6 WbcntX
G77; note to BImendorf v. Taylor, 18 U. 8. (10 WTwntX
NOTB.--Sloto laum and deeteUme gowm U. 8. | J^.' ^AiSf^ *® Jackson v. Chew. 96 U. 8. (O
oourt« CM to iUie and traiufer of real eetate >y grant ' wneac;, n».

749 6ft U. 8.

1860.

SuTDAM v. Williamson.

427-485

▼. BaU, 59 U. 8. (18 How.), 495, 549, 566, 566;
JackBon v. Van DcUfMn, 5 Johns., 48; Ckkrk v.
Davenport, 1 Bos., 96, 100, 105, 118, 131.

Mr. Da^id Dudley Field* for defendant
in error:

It is immaterial whether or not the state courts
of New York persist in the adherence to the er-
Toneons decision of (Joehran v. Van Surlap, 20
Wend., 865.

If they are not willing to re-examine the
grounds of that decision, tnat is no reason why
ttiis court should recede.

The decision here was made after great de-
liberation with the decision of Cochran y. Van
> Surlay beforeit. Property has since been boufl^ht
tknd sold on the faith of the opinion here deuv-
•ered, and the Judgment by this court pro-
nounced. Every pnnciple by which our law of
precedents is JustuQed. tends against the re-open-
mg of the case in this court.

If the rules of adherence to a decision once
^delivered is deliberately relaxed in this august
tribunal, where shall we find stability in our
Judicial institutions?

Lane ▼. Viek, 8 How., 464; Botoan y. Run-
nels, 5 How., 189; Please v. Peck, 59 U. B. (18
How.), 595.

[Counsel then argued against the force of the
decision of Towle v. Forney, 14 N. Y., 428, on
the ground that it was not orally argued, that
one of the ablest Judses, Selden, dissented, and
that the court merely followed the previous case
of Go^ran v. Van Surlay, without attempting
to justifytthe decision. The cases in this court
referred to are those of WiUiamson v. Berry, 8
How., 495; WiUiamson y. Irish Presb, Oh., 8
How., 565; WiUiamson v. BaU, 8 How., 566;
Suydamy, WiUiamson, 65 U. S.(24How.), 427.]

Mr. Justice Cftmpbell delivered the opinion
of the court:

This was an action of ejectment in the cir-
•cttit court, for certain lots of land in the City
of Kew York, by the defendants in error,
against the plaintiff in error. The plaintiff in
the circuit court claimed, under a devise in
the will of Mary Clarke, who died in the year
1802, by which she gave to trustees therein
named that part of the farm upon which she
resided, and which she owned, called Chelsea,
in trust, to receive the rents, Uisues and profits
thereof, and to pay the same to Thomas B.
Clarice, during his natural life; and from and
After the death of said Thomas B. Clarke, in
further trust to convey the same to the lawful
issue of the said Thomas B. Clarke, living at
his death, in fee. The property in dispute is a
portion of this estate. Thomas B. Clarke died
in 1826, and the plaintiffs have the title to this
property of his three children, who were living
sX his death.

The defendant's title is deduced from Thomas
B. Clarke, who disposed of the property under
the authority of certain acts of the Legislature
of the State of New York, and orders of the
•court of chancery of that State.

In March, 1814, T. B. Clarke represented to
ihe Legislature the existence and terms of the
will of Mary Clarke, and that the trustees
named in the will were consenting to such Acts
of tlie Legislature of the State as it might deem
proper to pass for his relief, and also requested,
with their sanction, that another trustee might

See 24 How.

be substituted in their stead; and further rep-
resented, that the estate could not be so im-
proved and made productive as to fulfill the
object of the testator; that he had married and
had a family of five chUdren, and that some
other disposition of the estate was essential for
the support of his family and himself. The
Legislature thereupon passed an Act for the
discharge of the trustees named in the will, and
empowered the court of chancery to appoint
one or more trustees to execute and pei^orm
the trusts and duties specified in the will and
in their act. The Act authorized the subdi-
vision of a special portion of the farm into city
lots, and their sale within a convenient time
thereafter, with the assent of said Clarke, and
for the investment and application of the in-
come of the proceeds of the sales.

In March, 1815, upon the petition of Thomas
B. Clarke, representing that he could not pro-
cure a suitable person to execute the trusts of
the Act of 1814, and that no other person was
interested in the property besides his family
and himself, an Act was passed authorizing
Clarke to become trustee, in like manner and
with like effect that trustees duly appointed
under the said Act might have done, and that
the said Clarke might apply Uie whole of the
interest and income of the said property to the
maintenance and support, of his famfly. and
the education of his children; and that no sale
should be made until the said Clarke should
have procured the assent of the ChaneeUor of
the State to such sale, who shall, at the time of
his giving such assent, direct the mode in
which the proceeds of sale, or so much thereof
as he shall think proper, shall be vested in the
said Thomas B. Clarke, as trustee; and further,
that it shall be the duty of the said Clarke to
render an account annually, to the ChaneeUor,
of the principal, the interest being applicable
as the said Clarke might think proper, for his
own use and benefit, and the maintenance and
support of his children.

Aftei the passing of this Act, the ChaneeUor,
upon the petition of Clarke, made sundry or-
ders for the sale of the lots and the appropria-
tion of the proceeds of sale, under the direc-
tions of a master of the court. In one of these
orders the ChaneeUor directed that so much of
the net proceeds to arise from the sales be ap-
plied, under the direction of one of the masters
of the court, for the payment and discharge of
the debts now owing' by the petitioner, and to
be contracted for the necessary purposes of his
family.

In March, 181 6, the Legislature of New York ,
further enacted that the said Clarke, under the '
order heretofore granted by the ChaneeUor, or
under any subsequent order, might mortgage
or sell the premises which the ChaneeUor per-
mitted or might permit him to sell as trustee
under the will of Mary Clarke, and to apply
the money so raised by mortgage or sale to
the purposes required or to be required by the
ChaneeUor, under the Acts theretofore passed
for his relief.

In March, 1817, the C?ianceUor authorized
Clarke to sell the southern half of the property
included in the devise, and to convey any part
or parts of the said estate in payment and sat-
isfaction of any debt due and owing from the
said Clarke, upon a valuation to be agreed on

7it

427-486

SUPRBMB COUBT OF THB UhITBD StATHS.

Dbc. Tkbm,

between him and his respective creditors: pro-
vided» nevertheless, that every sale and mort-
Sge, and conveyance in satisfaction, that may
made by the said Thomas Clarke, shall be
approved by one of the masters of the court,
and that a certificate of approval be indorsed
upon every deed or mortgage to be made in the
premises; and that the said Clarke be author-
ized to receive and take the moneys arising
from the premises, and apply the same to the
payment of his debts; and invest the surplus in
such manner as he may deem proper, to yield
an income for the maintenance and support of
his family.

In October, 1818, Thomas B. Clarke executed
a deed to Peter Mclntvre for a number of lots,
including those described in the declaration, in
which he recited that he had been empowered
to sell, or mortgage, or convey, in satisfaction
of any debt due mm him to any person, the
property devised by Mary Clarke, as aforesaid;
and that Clarke was indebted to Mclntvre in a
large sum of money; and that in consideration
of the premises, and of $8,750, the receipt of
which he acknowledged, he granted, &c., &c.,
in fee simple to Mclntyre.

The master in chancery indorsed upon the
deed an approval, that " having examined the
within the deed, he approved it in manner and
form," and contemporaneously conveyed to Mc-
lntvre an interest he held as trustee for Clarke.

Upon the trial, it appeared that the sale was
made upon the consideration of some debts of
Clarke, that Mclntyre assumed to pay; of oc-
casional advances of small sums of money to
Clarke, and payment of bills, in which the
children were interested ; of some two or three
years' board of Clarke and a portion of his
children, and two notes for about fifteen or six-
teen hundred dollars. It was shown that others
of the children were neglected by Clarke, and
subsisted through the bounty of friends and
relatives.

The defendant connects himself with the title
of Mclntyre as a purchaser at a sale of the prop-
erty, under a decree of foreclosure of his mort-
age, in 1844, by the court of chancery in New

The plaintiffs impugn the proceeding under
which the conveyance to Mclntyre was made,
and the sufficiency of the consideration to sup-
port the conveyance. They contend that every
material question in this case is resjudiccUa in
this court, having been adjudged in the cases of
Williams(m v. J&rry, 8 How., 496, 649; WiUl-
ams V. The Irish Presbyterian Chure?i, 8 How.,
666; and WHUatMon v. BaU, 8 How., 666.
They insist that it is not material whether the
Court of Appeals of New York persist in their
adherence to theii^ decision in the case of Coch-
ran y. Van Surlay, 20 Wend., 366. If they
are not willing to re-examine the grounds of
that decision, that is not a reason why this
court should recede. The decision here was
made, after great deliberation, with the decis-
ion in Cochran y. Van Swrlay, before it. Prop-
erty has since been bought and sold upon the
faith of the opinion here deUvered, and the
judgment by this court pronounced. Every
principle by which our law of precedents is
justified, tends against the re-^pening of the
case in this court.

The litigation in respect to the property con-

944

veyed by Clarke, under the authority derived
from the Acts of the Legislature, and the orders
of the Chancellor, commenced before the death
of Clarke. Sinclair y. Jackson, 8 Cow., 543.

The case of Clarke v. Van Surlay was tried
at the New York Circuit in 1833. and was de-
cided in the Supreme Court in 1836. 16 Wend.,
486. It was removed to the court for the cor-
rection of errors, and was affirmed in that court,
but with much division in the court, in 1838.
Cochra/n v. Van Surlay, 20 Wend.. 365.

The decree of foreclosure and sale, under
which the defendant claims, was rendered in
1840, and the sale took place in 1844. The pur-
chaser, subsequently to the sale, objected to
complying with his purchase, because of a no-
tice from the devisees of Mary Clarke, that thcj
were claimants of the property, and forbade his
entering upon the same. The Viec-ChanceUor,
upon tne motion requiring the purchaser to
comply, and the Chancellor, upon appeal from
his oraer, compelled the purchaser to complete
his purchase. The reasons for this order do
not appear. But the Vice- ChaneeUor and Cha n^
cellar might have said, that it had become the
settled law of the State that such a title was
valid, and could have rested upon the author-
ity of the case of Clarke v. Van Surlay.

In 1851 the case of Towle v. Fbmey, 4 Duer,
164, came before the Superior Court of the City
of New York, and involved the title to one of
the lots conveyed to Mclntyre by Clarke, and
sold under the decree of foreclosure. That case
was determined in that court, and its judgm^it
affirming the validity of that title was sanctioDed
m the Court of Appeals (14 N. Y., 426) subse-
quently to the decisions reported in 8 How-
ard in this court. The court of appeals^ in
answer to the argument derived from the adju-
dication in this court, say, that perhaps Uic±re
may be a difference between the cases which
were determined in this court in 1861 and that
case, but that the more suitable answer is, that
as between the judgments of their own ooarts.
and those of the courts of the United States,
their own are binding where there is a ooi^ici
between them, except in cases arising under the
Constitution and laws of the United States,
when the ludgments of the Supreme Court of
the United States are of controlling authority.
That court declares that the judgment in Giarie
V. Van Surlay is a determination of the oourt
of last resort in this State, not only upon all the
questions of law in the case under consideration,,
but upon the identioi] title under which the

elaintiff in the reported case, and the defendant
I the present case, claimed to own the prem-
ises in controversy in the respective suita. *
^ * In such acase, there being no pretense of
collusion, and no reason to impute careleasness
or inattention to the judges, the determinalioii
should be considered final and ooncluslye upon
all persons in interest, or who may beoome in-
terested in the question, as well as upon the
parties to the particular action. Tbwfe y. Fbr-
ney, 4 Duer, 164; S. C, 14 N. Y.. 426; Omrkg
y. Ikivenport, 1 Bosw., 96; S. C. affirmed on
appeal. And the question is now ptesent&d to
thii court, wliether they should adhere to their
own opinion as expressed in the cases in 8
Howard, or acknowledge the authority of the
courts of New York to settle finally the coolest
upon this title.

« r. s.

1860.

CUBTIS y. BUTUBR Co.

48(M5(>

The subject of the dispute is real property
situated within the State of New York, and
her laws exclusively govern in respect to the
rights of the parties, tiie modes of the transfer,
and the solemnities which should accompany
them. Communis et recta senterUia est, in rebus
immobiUbus s&rwutum esse jus lod in quo bona
suntsita. Every sovereign has the exclusive
right to conunand within his territory; and the
laws which originate rights to real property are
commands addressed to the members of the
state, requiring them to abstain from any inter-
ference with the proprietary right they recog-
nize or establish; and in respect to this subject
the sovereignty of New York has not been im-
paired bv her adoption of the Federal Constitu-
tion. The power to establish federal courts,
and t<^ endow them with a jurisdiction to deter-
mine controversies between certain parties, af-
fords no pretext for abrogating any established
law of property, or for removing any obliga-
tion of her citizens to submit to the rule of tne
local sovereign. The title of the devisees of
Mary Clarke was devested by authority con-
ferred by the Legislature of the State, which
was exercised sul^ect to the oversight of her
own tribunals. The persons affected by this
authority were natives of the State — children
under the superintending care of the parental
Jurisdiction of the State. It was in the consti-
tutional exercise of this supreme and exclusive
jurisdiction that this title was disturbed. It be-
hooves every other State to enforce or maintain
rights wbicli have thus originated in laws opor-
atmg within their legitimate sphere, and which
defeat no policy of their own ; and the jurispru-
dence of this court attests the care with which
this court has observed the general obligation
(of which this is a particular instance), in its
administration throughout the Union.

In Jackson v. Chew, 12 Wheat., 162, this
court say :

** The inquiry is very much narrowed by
applying the rule which has uniformlv gov-
erned this court, that where any principle of
law establishing a rule of real property has
been settled in the state courts, the same rule
will be applied by this court that would be ap-
plied by the state tribunals."

In Ekauregard t. New Orleans, 18 How., 497,
the court say :

"The judgments of the Supreme Court of
Louisiana, upon the validity of the sales im-
pugned in this bill, were given more than
twenty years ago. They have formed the
foundation upon which the expectations and
conduct of the inhabitants of that State have
been regulated. They have quieted apprehen-
sion and doubt respecting a title to an ixnpor-
tant portion of a large and growing city. They
have invited a multitude of .transactions and
engagements in which the well-being of hun-
dreds, perhaps thousands, of the citizens of
that State depend. In this bill there are sever-
al hundreds of defendants. The constitution
of this court requires it to follow the laws of
the several States wherever they properly ap-
ply ; and the habit of the court has been to de-
fer to the decisions of their judicial tribunals
upon questions arising out of the common law
of the State,especially when applied to the title
to lands. Upon cases like the present, the re-
lation of the courts of the United States to a

See 34 How.

State is the same as that of her own tribunals.
They administer the laws of the State, and to
fulfill that duty they must find them as they
exist in the habits of the people, and in the
exposition of their constituted authorities.
Without this, the peculiar organization of the
judicial tribunals of the States and the Union
would bo productive of the greatest mischief
and confusion."

In the case of ArgueUo v. United States, 1&
How., 589, this court determined that the
Colonization Regulations of Mexico, of 1824
and 1828, did not prohibit the settlement of
the littoral or coast leagues by natives, under
the authority of the Governor of California,
and without the consent of the Central Gov-
ernment in Mexico. The same question was
presented in the case of League v. Egery, 24
How., 264, at this term, from the District
Court of the United States in Texas, in refer-
ence to the coast leagues in that State. This
court found a contrary opinion had prevailed
in the courts of that State, and had become a
rule of property there, and without re-examin-
ing their own opinion, or making any attempt
to account for or to reconcile the difference,
without any hesitation applied the rule adopted
in Texas to the determination of controversies
existing there.

The cases reported in 8 Howard, referred
to, came before this court upon a division
of opinion between the experienced Judg-
es of the Circuit Court of the Southern District
of New York. The authority of Clarke v. Van
Sfurlay was thus impugned in that tribunal.
The decision in the court of errors was far
from being unanimous; nor was the dissent in
that tribunal feeble or equivocal.

The majority of this court were convinced
that the questions might be examined anew,
and that their answers were accordant with the
opinion of the minority in the court of errors.
But in the present case there is no room for
doubt as to what the settled opinion of the
courts of New York is in reference to this ti-
tle and, therefore, no occasion for any hesita-
tion concerning the obligation we have to per-
form. The circuit court decided adversly to
the defendant.

Its judgment is retersed, and tlie cause re-
manded for further proceedings,

S. C— 20 How., 487.

Cited— 78 U. 8. (6 WaU.), 729; 82 U. 8. (Ih Wall.),
487 ; 86 U. U. (18 Wall.), 8X; 08 U. 8., SOT: 97 U. 8.,
888: 100 U. S., %; 102 U. 8., 856; 108 U.S., 280; 4
DUL, 608 : 2 Woods, 471 ; 70 N. T., 807.

JACOB E. CURTIS, Pftf.,
t?.

THE COUNTY OF BUTLER.

(See 8. C, 24 How., 436-460.)

County bonds, when valid — when signed by a ma-
jority of the commissioners, are valid.

Power was ffiven In the Pennsylvania Act of the
9th February 1868, and by the agreement of 8ut>-
scriptioa and terms of pasrment, to the Commis-
stoners of Butler County, to make the (X)unty
bonds upon which the suit Is brougrht in payment
for subscription to capital stock of a Railroad (}om>
pany, and to bind the County to pay them.

74&

48<MS0

SlTPBmCB OOTTBT OF THB UhTTBD BtATHS.

Dbc. Temm,

These bonds having been sljrned by but two of the
said oommissionen, are blndlnsr on the Ck)anty
where the Act declares that two of the commission-
ers shall form a Board for the transaction of busi-
ness, and when the Act in terms makes the bonds
valid if made by a majority of the commissioners
of the respective counties.

Arffued Feb. 26, 1861. Decided Mar. U, 1861.

ON a certificate of division in opinion be-
tween the Judges of the Circuit Court of
the United States for the Western District of
Pennsylvania.

This was an action of debt brought in the
court below by the plaintiff, Jacob E. Curtis, on
certain coupons claimed to have been attached
to bonds issued by the County of Butler to the
Korthwesteni Railroad Company, in payment
of an alleged subscription of that County to the
capital stock of the Railroad Company.

The defendant pleaded nil debet, upon the
trial the plaintiff gave in evidence,

1. The 7th section of the Act of Incorporation
of the Railroad Company, the substance of
which, so far as it api>ertain8 to this case, is
etated in the opinion.

2. Bond No. 1, purporting to have been is-
sued by the Countv of Butler for stpck in the
Northwestern Railroad Company, signed by
two of the Commissioners of Butler County.

8. The petition of the Railroad Company to
the Grand Jury and Commissioners of Butler
County for the subscription, and the present-
ment of the grand jury requesting the subscrip-
tion.

4. The coupons of the bonds.

5. Evidence to show that the coupons were
signed by Thomas Robinson, and that ho was
the clerk of the commissioners at the date of the
bond.

It was admitted that the County of Butler
was one of the counties through which the rail-
road was intended to pass, and if ever made,
would pass.

The defendant gave in evidence the subscrip-
tion and agreement between the Commissioners
of the County of Butler and the Northwestern
Railroad Company, consisting of a resolution
passed by the fioara of Directors of the Railroad
Company, and a subscription on the part of the
Countv, signed by three commissioners. The
defendant further gave evidence tending to
show that these bonds had been disposed of by
the Company at less than their par value, and
that the plaintiff had notice of the agreement
with the County as to the pi^yment of interest
bv the Company, &c.,and that notice had been
given to the plaintiff to show how he came by
these instruments.

The Jury, under the instructions of the court,
found a verdict for the plaintiff, subject to the
opinion of the court as to the legal authority of
the commissioners to bind the people of the
County of Butler by the securities declared
upon. The defendant requested the court to
instruct the jury that no power was given by
the Act of Assembly of February 9th, 1853, or
by the agreement of subscription, or terms of
payment to the Commissioners, to make the in-
struments on which the suit is brought and bind
the County to pay them, and that if such power
was given, it could not be exercised by two of
the three commissioners. Upon this question
the judges of the circuit court were divided in
opinion.

74«

Jfr. Edwin M. SiaAton for plaintiff:
Two questions are involved in the certificate
of division of opinion.

1. Had the Commissioners of Butler Coonty
legal authority to issue the bonds given in evi-
dence?

2. If they had, was such power well exer-
cised by two out of the three oommisnoDers?

The first question resolves itself into a con-
struction of the Act of the Pennsylvania Gen-
eral Assembly, for the incorporation of the
Northwestern Railroad Commuay

That the Legislature of Pennsylvania posr
sessed the constitutional authority, at the time
of the passage of this Act, to dei^ate to the
County of Butler the power to execute binding
securities, has been setUed by the Supreme Court
of the State. '

SharpUn v. Mayor, Sc„ qf PhOadApkia, SI
Pa., 147; CommimweaUh v. Oommieaimkm% 4f
AUeqheny Co., 82 Pa.. 218.

The very Act in question has been before the
Supreme Court of the State, and its validity
conceded.

Assuming, therefore, authority on the part of
the Legislature to delegate to the Coan^ and
its proper ofilcers the power to execute and isaue
such instruments as are the foundation of this
suit, we come to the question, whether such a
power has been actually conferred in the present
mstance.

1. It is admitted that Butler Connty oomes
within the scope of the Act; it is one of ** the
counties through parts of which the said railroad
may pass."

2. it is admitted that this County ,thnxif^ its
ofilcers, '* the commissioners, or a majority of
them," is authorised to subscribe to the capital
stock of the Railroad Company, and "make pay-
ment on such terms ana in such manner as
may be agreed upon by said Company and tlie
County." It is, however, claimed that the
" power " to make such payment on such terms
and in such manner as may be agreed upon by
the Company and the proper county, does not
necessarily imply that such securities as bonds
with coupons attached to them may be given.

An examination of the terms and phraseology
of the Act, however, clearly shows that the power
to issue bonds was intended to be oonvered.
In this very section it is provided that ' * when-
ever bonds of the respective counties are given
in payment of subscriptions," &c. , and that '^o
bonds shall be eiven for less than one hundred
dollars," «fec. Here we have a legislatiYe ooa-
struction of the Act.showing Uiat Uie authority
to issue bonds in the name of the County was
intended to be conferred.

In the actions of all the parties concerned, we
find a similar construction put upon the Act.
Nobody ever supposed that the (>>unty could
make payment of her subscription in any other
manner than by her credit pledged by her bonds.
The same astuteness that we now find employed
in the endeavor to repudiate these obligations,
was then engaged in advising and procuring
their execution. But the defendant's own con-
struction of the law in making these obtigatioas.
will now be applied by courts ofjustice in en-
forcing their fulfilment. Inthed.ef Lawnmef
V. Ths Northteeetem B, R Co., 82 Fa., 144. the
Supreme Court granted an injunction on lems
implying and recognising tlw validity of the

1860.

GuBTn y. BuTLBR Co.

485-460

bonds before that time negotiated by the Com-
pany.

Of the ' tenns and manner of payment agreed
upon by the said Company and the proper
county, the best, and, to affect the plaintiff,
the only evidence is to be found in the bonds
themselves. Hence the agreement of 18th Au-
gust, 1858, put in evidence by the defendant,
Tvas superseded by the agreement of the 1st July,
1854, evidenced by the bonds ; and any provision
of the earlier agreement inconsistent with the
terms of the bond cannot avail as a defense
aeainst a hanafid6 bearer of the bonds.

2d. But suppose a fair construction of the terms
of the Act of 9th Feb., 1858, shows authority
in the County and its proper officers to issue its
instruments given in evidence, a second question
arises under the facts as stated in the certificate
of division of opinion, namely: whether bonds,
signed by two of the three commissioners, would
be binding.

It has not been seriously contended that the
commissioners were not the proper officers to
execute the bond.

Act 15th April, 1884, Pardon's Digest, 176.

Now, by the 10th section of the Act of April,
1884, it is enacted as follows: ** Two of the
commissioners aforesaid shall form a Board for
the transaction of business, and when convened
in porduance of notice or according to adlourn-
ment. shall be competent to per^Srm aft and
singular the duties appertaining to the office of
county commissioners." See Pardon's Digest,
p. 176.

In The Comminhners cf AUsgheny Oo. v.
Lecky, 6 8. & R, 166 — a case that arose before
the Act of 1884 was passed — it was unanimous-
ly held that all powers conferred upon the com-
missioners might be legally executed by two.

8 Watt, 128; 5 Binn. 481.

It may be further remarked that signing the
bonds was not a duty of a deliberative nature.
It was merely carrying into effect the previous
deliberations of the Board and their agreement
with the Company. •

Mr. J. 8. Black, for the defendant.

Mr. Justies Wayne delivered the opinion
of the court:

This case has been sent to us upon a certifi-
cate of division upon two points, which oc-
curred between the Judges upon the trial of it in
the court below: 1. Had the commissioners of
Butler County legal authority to issue the bonds
given in evidence? 2. If they had, was such
power or authority well exercised by two out
of the three commissioners of the said County,
or were the bonds signed by two of them bind-

The Act under which the bonds were issued
was passed 9th February, 1858. The 1st sec-
tion enumerates the persons by name who were
to become commissioners to open books, receive
subscriptions of stock, and to organize a Com*
pany by the name, style and title of the North-
western Railroad Company, with all the powers,
and subject to all the duties, restrictions and reg-
ulations, prescribed by an Act regulating rail-
road companies, approved the 19th of February
1849, " so far as the same are not allowed and
supplied by the provisions of this Act."

Bv the 2nd section of the Act, the capital
stock of the Company was to be divided into

See 24 How.

twenty thousand shares, of $50 each, with the
privilege to be increased, if the exigencies of
the Company shall require it, to any sum not
exceeding $2,000,000, as the president and di-
rectors of said Company may deem expedient.
By the 8d section the Company have the right to
build and construct a railroad from some point
on the Pennff)rlvania or Allegheny railroad, at
or west of Johnstown, by the way of Butler to
the Pennsylvania and Ohio State Line, at some
point on the western boundary line of Law-
rence County, Ac. , &c. , to connect with any rail-
road now or which might be thereafter con-
structed at either end, or at any intermediate
point on the line or route thereof. For doing
this, the Company was authorized to borrow
money to an amount not exceeding the capital
stock of the Company, upon bonds to be issued
by it whenever the president and directors
might deem it expedient to 4o so. The rate of
interest upon the bonds was not to exceed seven
per cent., and they were to be convertible into
the stock of the Company, whenever the holders
of it and the Company miffht agree to have that
done. The 6th section of the Act we need not
speak of, as it relates to matters unconnected
with the questions certified, or from which
there is not any impeachment of the correct
action of the*Company.

But the 7th section, the counties through
parts of which the railroad may pass, were au-
thorized to subscribe to the capital stock of the
Company, "and to make payments on such
terms and in such manner as may be agreed
upon by the Company and proper county. But
the amount of the subscnption of any county
was not allowed to exceed ten per cent, of the as-
sessed valuation thereof (for taxes), and before
any subscription could be made for any county,
the amount of each was to be determined and ap-
proved bv a grand Jury of the county. Upon the
report of a grand Jury being filed, the county
commissioners were to carry it intceffect, ac-
cordingly. Then, whenever bonds of the re-
spective counties were given in payment of sub-
scriptions, the commissioners were prohibited
from selling them at less than p^r; and such
bonds the ^le exempted from taxation until
the clear profit on the business of the railroad
amounted to six per cent, on the cost thereof;
and it was declared that the subscription of the
counties was to be held to be valid when made
by a majority of its commissioners. With this
analysis of the Act, under which the bonds sued
upon were issued, we proceed to consider the
points submitted to Us.

In the first place, after a careful examination
of the Act to which this Act was made subordi-
nate, we do not find that anything was done by
the commissioners inconsistent with it, or bear-
ing upon the points certified.

We think that the county commissioners had
authority from the Legislature to execute the
bonds, and pledge the faith, credit, and prop-
erty of the County, to pay them. Authori^
was given by the 7th section of the charter. It
declares that the County shall have power to
subscribe to the capital stock of the Kallroad
Company, and to make payment in such man-
ner and upon such terms as may be agreed
upon between the County and the Company.

It cannot be denied thAt this was an author-
ity to the County to make a contract of sub-

747

48(M50

SUFKBMIB COUBT OF THB UHITBD StATBS.

Dec. Tum,

scription, and that it contemplates a payment
for it prospectively "by bonds which, when
made in t&e name of any county, were to
be held valid, if made by a majority of the
commissioners of the resi)ective counties." The
power to subscribe, the manner of payment, the
limitation upon the amount of subscription, the
mode of carrying ^at out through the inter-
vention of a grand Jury's approval and report,
the allowance of bonds to be given in payment,
the restriction of the same upon the Railroad
Company to which they were to be transferred,
not to sell the bonds at less than par, the hind-
rance upon the issue of bonds of less than $100,
the exemption of them from taxation upon a con-
tinjrency until the clear profits of the railroad
shall amount to six per cent, upon the cost of
it, are significant of what was intended. All
of those particulars in this section of the stat-
ute are to be considered together in the con-
struction of it.

No one questions that the Legislature, then,
had the power to incorporate such companies,
and to allow the counties of the State to become
interested in them upon the faith of county se-
curities, for the transportation of persons and
things in ail of the vehicles used for commerce
and the carrying trade, either by water, or by
land upon ordinary artificial roads. And that
associations of persons might be incorporated
for the construction of the latter, either by
money already subscribed, or by money to oe
raised or borrowed by certificates of indebted-
ness, with certificates of interest attached, sep-
arable from the former, for the payment of in-
terest, payable at particular times.

The objection now, as we understand it, is
not that the Legislature had not such a power.
But it is said, in the exercise of it, that the Rail-
road Companv,and the counties through which
the road might be constructed, had mistaken
the terms upon which the counties might sub-
scribe to the capital of the Railroad Company, as
to the manner for the payment of the subscrip-
tion ; in other words, Uiat the counties in issu
ing bonds with coupons had mistaken the
special authority given to them by the 7th sec-
tion of the Act, and had nwde a different con-
tract, which could not be Judicially enforced.

That section is as follows: ** That the count-
ies through parts of which said railroad may
pass shall be authorized to subscribe to the cap-
ital stock of the railroad company, and to make
payment on such terms and m such manner as
may be agreed upon bv said company and the
proper countv; provided, that the amount of
subscription by said countv shall not exceed
ten per cent, of the assessed valuation thereof,
and that before any such subscription shall be
made, that the amount thereof shsM be fixed
and determined by one grand jury of the proper
county, and approved by the same; and tnat
upon the report of such grand Jury being filed,
the county commissioners may carry the same
into effect bp making, in the name of the eounty,
the subscription directed by the grand Jury:
provided, that whenever the bond! of the re-
spective counties are given in payment of sub-
scriptions, that the same shall not be sold by the
railroad company at less than par value, and no
bonds shall be in less amount than one hundred
doUars, and that such bonds shaU not be sub-
ject to taxation until the clear profits of said

748

railroad company shall amount to six per cent,
upon the cost thereof; and that all subscriptionA
made or to be made in the name of any county
shall be held and deemed valid if made b^ a
m(j0ority of the commissioners of the respective
counties."

Now, we freely subscribe to the rule that neither
privileges, powers, nor authorities, can pass by
an Act of Incorporation, unless they be ^ven
in unambiguous words, and that an Act giving
special privileges must be construed strictly.
That in such a case, where a sentence is capa-
ble of having two distinct meanings, that a con-
struction must be given to it most favorable to
the public. But in applying these principles
to this case, it must be done with reference to
the subject-matter contemplated by the Legis-
lature as a whole, and not allow its manifested
intention and design to be defeated by denying
to the counties the only means of paying their
subscription, by which the main object could
be accomplished.

Why was it that the Legislature, in drawing
the section, directed that the subscriptions of
the counties should be made upon terms and
in manner as the railroad ana the counties
might agree upon; that it limited the amount
of subscription upon an assessed valuation of
the property of the County; that it contem-
plated a taxation contingently upon the bonds
of the counties, respectively, that they were
to lie ffiven in payment of sul»criptiona. unless
it had been its clear intention that tiie sub-
scriptions, were to be paid for by county bonds,
when both Company and County shoiUd make
such a contract?

This, in our view, is not a case of ambiguity
in the power given, but one of as clear designa-
tion as could have been expressed. Nor was
it a case in which the Legislature imposed a
public burden. It was no more than giving to
the people of the County a right to tax them-
selves tor an anticipated advantage to arise
from an expenditure of their own mon^ in the
construction of a railroad. It was the concern
of the County : the same as it would have betn
if the County had been legislatively empowered
to tax themselves to clear out a river for a bel-
ter navigation, or for the cutting of a canal.
Whether the allowance for the issue of bonds
for either of those purposes will be judicioas,
depends upon the subject and the regulatk^os
which the Legislature may impose for their ex-
ecution.

In our best judgment, applied as it has been
to the 7th section of the Act to incorporate the
Northwestern Railroad Company, in connec-
tion with a full consideration of the rules for
the construction of the powers of corporations,
we have been unable to find anything in the
7th section equivocal or doubtful as to the
power ^ven to the counties to make and to pay
for their subscriptions to the Railroad Com-
pany, and nothing wrong as to that Company
having received them according to its charter.

We therefore answer to the nrst point certi-
fied to this court, *' that power was given in
the Act of the 9th February, 1858, and by the
agreement of subscription and terms of pay-
ment, to the CommiasionerB of Butler County,
to make the instruments upon which the suit is
brought, and to bind the Coimty to pay tiiem.'*

We will now proceed to the second point oer-

IMO.

pJOtLPS T. EDOBBTOK.

4«0~«1

tided to thii court: and ifanypowor wiu gl'
to issue booda payable to bearer, witb coupons
atlMhed. it could not be exerdaed by two out
of the tbree commlisioaers of tbe nald County;
and that these bonds having been digned by but
two of the said comniiBslonerB are not binding
on the county.

We have eiamioed ihe Acts relating to
are designated to exercise Ihe corporate powers
of the County. By the Act of the ISth April.
I8S4, the commlssioaers are to do so; and it is
now claimed, aa there are three, that all of them
Ahould bave signed the bonds to make them
binding upon the County. But by the 19th sec-
tion of the Act. it is declared that two of the
cnmmissionera shall form a Board for the trans-
action of bustness. and when convened In pur-
aunnce of notice or according to adjouroment.
»bu)l be competent to perform all and singular
Ihe duties appert»!Qing to the office of county
commissioner. Purcfen's Digest, 176.

Before the Act of 1884 was passed, It was
beld in the case of TTu Cinnnti*iion«r$ »f Alts-
gli^n]/ Coutiijf V. Leeky, 6 Berg, & R., 168, that
all powers conferred upon the commlesfoneiB
might be legally executed by two, without the
concurrence of the third. The same ruliui;
will be found in Cooper i£ Grote v. Lampter
Tnwjwfl^.S Watts., 128; 5BinD.,4Sl. But why
cit« authorities, when the Act in terms makes
the bonds valid if made by a majority of tbe
commissioneiB of the respective countiesi

WefiiertfoTt, answer iM aeovA'poiiii certifisd,
that ihe boTide upon ■uhich tvit U drought, being
gigned bff tine out of the tkret eommfinoneri,
are binding upon the County of Sutler.

LYCURQCa EDGERTON, WILLIAM H.
DUNN AND JOHN 0. WRIGHT.

Writ of error for delay. Cause dltmlned wltli
t«ii per oeut. damafrea.

IN ERROR to tbe Circuit Court of the United
States for the Northern District of Illinois.
.Viwirf. T. L. IMeker and J. A. Rock-
well, for plaintiffs in error.

Mean. ti. TmmbnUandB. C. Co»k. for
dereodaats in error.

delivered the opin-

Mr. Chi^fJutUee

nil of llie court:

miniag the record iu Uiin l'h^i', Lhe

■ lion that the writ of error was

J for delay, and thcreforu ulTirm

Jiiwith 10 per cent, damages, ac

— »nd section of the 33d nilf of

B.JOHNH. WILKINS
JAM MINOT. Jit.
0.,»Bow., *5(Mei.l

The jwitdieitaa whieh hai finl ailaehed in
tAd leituTg and tale of properly wiU premtl —
Marihatg right to held, u gveelion for federal
eouTt. not for ttate eaart — equity acttan m
federal court, to re»lram rait at late in »ame
court, H not an original action and ii main-
tained mlhout reference to reeidenee of the par-

la the case of oonfllotlns authorities under a
state and federal proeesa, od which property has
tieen selxed. the question aa to wbich authorItT
■hall for tbe time prevail, does not depend upoa
the rlKhts of the respective parties to the property
■elied, hut upon the quesUon, whioh Jurisdiction
had tint attaobed by the aelEure and ougtody of
the property under Its prooeia.

This rule apjillefl to an attachment Issued by the

WTiore property has boan setead under the proo-
eaa of attachmeat, from the U. 8. Cinnill Court

and 1b In the oustody ot the Uanhai, the rls'bt
to bold It 19 a question t>elonglnK to tbe federal
cnurt. under whose process It was seized, to deter-
mine, and there U no authority, untf"- "— — —

ot the stale court, to Inlerte "'-

It belOQBSto the federal a.

question of their own Jurisdiction, the ulUmi

biter being the supreme Judicial tribunal of tbe

A bill QJod on tbe eauity aide of a federal court
to restralo or rexulBteJudimentsor Bultsat law In
the same court, and thereby prevent Idjustloe. or
an JDequ liable advantag-e under nieme or final pro-
cess. 1b not an original suit, but ancillary andde-
pendent. supplementary merely to the orlglnttl
suit nut of which It has arisen, and Is maintained
without referenoe to the oltlienship or resldenoe
of the parties.

Argued Mar. B, 1S6I. Decided Mar. 14, 1861.

IN ERROR to the Supreme Judicial Court
of the Commonwealth of Massachusetts,
within aad for the County of Middlesex, In the
District of Mafsachusetu.
The case is stated by tbe court.
Mr. Beary M. Farkar, for pluntiff in

1. Persons and property " in the custody of
the law" of a slate are withdrawn from the proc-
ess of the courts of the United States (unless
Coagress has otherwise spcciQcally enacted},
and in like manner persons and property in the
custody ot the law of the United Stateaare not
subject to any state process.

The OUter Jordan, 3 Curt. C. C 414' 2"™-
lor T. The Royal Saxon, 1 Wall. Jr., 811; see,
also, Oropper v. Gotmm, 3 Curt, C. C, 466,
46S; Bn parte Benton, 6 McLean, UfiS.

3. An attempt was early made to draw a dis-
tinction in favor of the United StaUs in nut-

doctrine has Iwen definitely overruled.

Taylor 7. Carryl. 61 U. 8- (20 How.), 597;
13 Harris, Pa., 264.

Mr. H«niT C. Hntehlnc, for defendaol
in error:

Replevin was properly brought In this caw.
Tbe attachment made by the Marshal was a
collateral pFocDeding,to secure payment of the
judgment that might be recovered in the suit
wherein Ihe attachment was made. He was di-
rected by his writ to attach property of the
defendant named In the writ, and his writ only
afforded him a jusiificatlon for attaching sut^
property, and he took the properly of a stran-
ger—that is, of the defendants in error. The
defendants iu error had no reniedy except in
74»

46(M61

BUFBIDIB COUBT OF THB UHTTBD BtATSB.

Dbc. Tkem,

the state court. They must bring their suit
there or not at all. They were citizens of Mas-
sachusetts, as was also the Marshal, and the
property replevied was there situated. There
was no conflict of Jurisdiction, and none could
poBflibly arise.

1 Kent, Com., 411, 7th ed., 410. 5th ed. ; iSZff-
oum V. Mayberry, 2 Wheat.. l\Hannay. Stein-
berger, 6 Slackf.. 620; Brum v. Ogdtn, 6
Halst., 870; Teal v. FeUon, 12 How.. 284;
Dunnv. VaU, 7 Mart., 416; Clements v. Berry,
11 How.. 898; Taykn' y. BoyalSaoDon, 1 Wall.,
Jr., 811; Freeman v. Bobinaon, 7 Ind., 821.

This was not a proceeding in rem, nor like
the case where a marshal has a prisoner in his
custody. In those cases the custody of the
thing or of the prisoner lies at the very founda-
tion of the junsdiction in the suit and, there-
fore, to take from his custody, by process from
a state court, the thing or the prisoner, would
be to deprive the Unitad States Court of its Jur-
isdiction, and to draw in question the vaUdity
of the authority exercised under the United
States.

But this suit, in which the Marshal attached
these cars, was brought to recover a debt, and
no question could possiblv arise in that suit
whether the property attached by the Marshal
belonged to the defendant therein or not; no
form of pleading could brins this question be-
fore the court, and the suit would and did
proceed to Judgment independently of the fact
whether property was attached or not. The
only question in that suit was, whether the de-
fendant was indebted to the plaintiff as alleged
therein.

The case of Taylor v. Carryl, 61 U. S. (20
How.), 588, is not In point. The opinion of the
majority of the court in that case proceeded
upon the ground that the process from the state
court and that from the United States Court
were both proceedings in rem, and of course
that which was prior in time had precedence,
and the property could not be taken from the
possession of the state court, because posses-
sion of the property was essential to its Juris-
diction.

Mr, JueUee Kelson delivered the opinion of
the court:

This is a writ of error to the Supreme Court
of Massachusetts.

The case was this: Selden F. White, of the
State of New Hampshire, in 1856 instituted a
suit in the Circuit Court of the United States
for the District of Massachusetts against the
Vermont and Massachusetts Railroad Com-
pany, a Corporation under the laws of Massa-
chusetts, to recover certain demands claimed
agcdnst the defendants. The suit was com-
menced in the usual way, by process of ilttach-
ment and summons. Freeman, the Marshal, and
plaintiff in error, to whom the processes were
delivered, attached a number of railroad cars,
which, according to the practice of the court,
were seized and held as a security for the satis-
faction of the demand in suit in case a Judg-
ment was recovered. After the seizure, and
while the cars were in the custody of the Mar-
shal, they were taken out of his possession by
the Sheriff of the County of Middlesex, under
a writ of replevin in favor of Howe and others,
the defendants in error, issued from a state

750

court The platntiffs in the replevin auit were
mortgairaes of the Vermont and Massachusetts
Railroad Company, including the can in ques-
tion, in trust for the bondhofiera, to secure the
payment of a large sum of money which re-
mained due and unpaid.

The defendant, Freenum, in the replevin
suit, set up, by way of defense, the autnontj
by which he held me property under the Cir-
cuit Court of the United States, which wss
overruled by the court below, aiid judgmeot
rendered for the plaintiffs. The caae la now be-
fore us on a writ of error.

I. The suit in this case has been instituted
and carried on to Judgment in the court below
under a misapprehoudon, of the settled coune
of decision in this court in respect to the case of
conflicting processes and authorities^between the
federal and state courts; and also in respect ta
the appropriate remedy of the plaintiffs for the
grievances complained, of.

As it respects the effect to be given to the pro-
cesses of the courts, whether state or fedeial.
the subject was so fully and satisf actorUv ex-
amined in the case of Taylary, Garryl, 20 How..
588, the last of the series on the subject, we need
only refer to it, as all the previous cases will
there be found.

The main point there decided was, that the
property seiased by the sheriff, under the proc-
ess of attachment from the state courts and
while in the custody of the officer, could not be
seized or t^en from him by a process from the
District Court of the United States, and that
the attempt to seize it by the Marshal, by s
notice or otherwise, was a nullity, and gave the
court no jurisdiction over it, inasmuch as, to
give Jurisdiction to the district court in a pro-
ceeding in rem, there must be a valid aeizuR
and an actual control of the ree under the proc-

In order to avoid the effect of this case, it has
been assumed that the question was not one c^
conflict between the state and federal authori-
ties, but a question merely upon the relative
powers of a court of admiral^ and a oourt of
common law in the case of an admitted mari-
time lien. But no such ouesticm was diecosKd
by Mr, Juetiee Campbell, who delivered the
opinion of the majority of the court, except u>
show that the process of the district court in
admiralty was entitled to no precedeaoe over
the process of any other court, dealing with
propierty that was, in common, subject to the
Junsdiction of each. On the contrary, he ob-
served, at the close of the opinion, that the view
taken of the case rendered it unnecessary ** to
consider any (^^uestion relative to the reapectivt
liens of attaching crediton, and of seamen for
wages, or as to the effect of the sale of the prop-
erty as chargeable, or as perishable, upon than. **

The minority of the court took a different
view of the question supposed to be Involved in
the case. It is succinctly stated by the Ckitf
JuaUee, at the commencement of hia dissenting
opinion. He observes: "The opinion of the
court treats this controversy as a conflict be-
tween the Jurisdiction and rights of a state
court and the iurisdiction and i^hts of a ooun
of the United States, as a conflict betwea
sovereignties, both acting by their own officers
within the sphere of their acknowledged powers.
In my judgment; this is a mjataken view of the

ttU.&

1880.

Fbbbmak v. Howx.

46(M«1

queetion praented by the record. It is not a
question between the relative powers of a State
and the United States, acting through their
judicial tribunals, but merely upon the relative
powers and duties of a court of admiralty and
a court of common law in the case of an ad-
mitted maritime lien;" and hence the con-
clusion was arrived at, that the power of the
admiralty was paramount. The majority of the
court were of opinion that, according to the
course of decision in the case of conflicting au-
thorities under a state and federal process, and
in order to avoid unseemlv collision between
them, the question as to which authority should,
for the time, prevail, did not depend upon the
rights of the respective parties to the property
seized, whether the one was paramount to the
other, but upon the question, which iurlsdictlon
had first attached by the seizure and custody of
the property under its process.

Another distinction is attempted by the de-
fendants in error. It is admitted that in the
case of a proceeding in rem, the property seized
and in the custody of the officer is protected
from any interference by slate process. But it
is claimed that the process of attachment issued
by a common law court stands upon adifiPerent
footing, ai^d the reasons asslgnea for the dis-
tinction are, that in the one case the property
seized is the subject of lesal inquiry in the court,
the matter to be tried and ad judicated upon, and
which, in the language of the counsel, lies at
the foundation of the jurisdiction of the court;
but that, in the other, the property seized,
namely: under the attachment, is not the sub-
ject-matter to be tried, like the property which is
the subject of a libel in rem, as the process is,
simply, for the recovery of a debt, without any
lien or charge upon the property, except that re-
sulting from the attachment to secure the debt,
and tmit the question of lien upon the property
is .a collateral one, which the feaeral court could
not hear and decide in the action before it; and
further, that the question of liability of the
Railroad Company was upon certain bonds, the
trial and judgment upon which would not be
affected by the possession or want of possession
of the property seized by the Marshal.

The idea which seems to prevail in the mind
of the learned counsel on the part of the defend-
ant in error is, that there is something peculiar
and extraordinary in a proceeding tn rem in
admiralty, and in the lien upon which it Is
founded, that invests them with a power far
above the proceedings or liens at common law,
or by statute; and t&t, while the seizure of the
property in the one case, by the Marshal, pro-
tects it from all interference by state process,
in the other no such protection exists.

The court is not aware of any such distinc-
tion. In the case of a proceeaing in rem in
admiralty, the lien or charge, which gives the
right to seize the property,results from the prin-
ciples of the maritime law. In the proceeding
by attachment in a court of common law, the
lien results from statute or common law; and in
both cases, unless the party instituting the pro-
ceedings sustains his demand to secure which
the Hen is claimed, the property ia discharged.
In both, the property is held contingently, de-
pendent upon the result of the litigation. In
the admiralty, in the case of collision, upon a
Wl of lading, or charter-party, for salvage, Jkc,

See 84 How.

&c., the main questions litigated are not the
Questions of lien, but fault or not in the col-
lision, the fulfillment or not of the contract in
the bill of lading, or cluirter-party, or the right
to salvage.

The same observations are alilie applicable U>
all cases of attachment in courts or common
law, where the lien is given by statute.

It is true, in a proceeding in rem, any person
claiming an interest in the property paramount
to that of the libelant, may intervene by way of
defense for the protection of his inter^t; but
the same is equally true in the case of a pro-
ceeding by attachment in a court of common
law, as wUl be shown in another branch of this
opinion.

Some stress has also been placed upon the idea,
that the forcible dispossession of the Marshal,
of the property under the attachment, would
not effect the jurisdiction of the court, or inter-
rupt the proceedings in the suit; but the same
is ec^ually true as respects the proceedings in
rem m the admiralty. The forcible disposses-
sion of the Marshal, of the property once seized,
would not affect the jurisdiction, or prevent a
decree in the case.

Another and main ground relied on by the
defendants in error is, that the process in the
present instance was directed against the prop-
erty of the Railroad Gompany,and conferred na
authority upon the Marshal to take the property
of the plaintifb in the replevin suit. But this
involves a question of right and title to the
property under the federal process, and which
It belongs to the federal, not the state courts, to
determine. This is now admitted; for though
a point is made in the brief by the counsel for
the defendant in error, that this court had no
jurisdiction of the case, it was given up on the
argument. And in the condition of the present
case more than this is involved; for the prop-
erty having been seized under the process of
attachment, and in the custody of the Marshal,
and the right to hold it being a question belong-
ing to the federal court, under whose process
it was seized, to determine, there was no au-
thority, as we have seen, under the process of
the state court, to interfere with it. We agree
with Mr, Justice Orier, in Peek v. JennMs, 7
How., 624, 62d. '*It is a doctrine of law too
long established to require citation of authori-
ties, that whore a courl has jurisdiction, it has a.
right to decide every question which occurs in
the cause: and whether its decision be correct
or otherwise, its judgment, till reversed, is re-
garded as binding in every court; and that
where the jurisdiction of a court, and the right
of a plaintiff to prosecute his suit hi it, have once
attached, that right cannot be arrested or
taken away by proceedings in another court.''
** Keither can one take the property from the
custody of the other by replevin, or any other
process; for this would produce a conflict ex-
tremely embarrassing to the administration of
justice."

The case of Sloeum v. Mayberry, 2 Wheat., 2,
has been referred to as holding a different doc>
trine from that maintained by the plaintiff in
error in the present case.

We have examined the case attentively, and
are satisfied that this is a misapprehension.
There was no interference there with goods
seized under the process of a federal court, and

450-461

BlTPBmCB COUBT OF THS UnTTBD BtaTKS.

Dao. Txiiic»

in the custody of the Marshal, nor any attempt
to draw questions involved in a suit instituted
in a federal court into a state court for decision.
It is quite apparent, from the opinion of the
court, if this had been the question before it,
what would have been its decision.

Chief JfuUee Marshall observed : ' ' An^ inter-
vention of a state authority which,by takm^rthe
thing seized out of the possession of the officer
of the IFnited States, might obstruct the exer-
cise of this jurisdiction, would, unquestionably,
be a violation of the Act; and the federal court
haviDff cognizance of the seizure, might enforce
a redelivery of the thing bv attachment or other
aummary process against the parties who should
devest such a possession. The party supposing
himself i^grieved by a seizure cannot, because
he considers it tortious, replevy the property
out of the custody of the seizing officers, or of
thecourt having cognizance of the cause." The
reason why the replevin of the cargo in the state
court was maintained was, that the vessel only
was seized by the officer, and not the cargo,
and the latter was not, therefore, within the pro-
tection of the principle announced.

Reference was made, also, on the argument
in thQ present case, to an opinion expressed by
ClianceUor Kent, in his Commentaries, Vol. I.,
p. 410, as follows: *'lf the officer of the United
• States who seizes, or the court which awards
the process to seize, has jurisdiction of the sub-
ject-matter, then the inouirjr into the validity of
the seizure belongs exclusively to the federal
courts. But if there be no jurisdiction in the
instance in which it is asserted, as if a Marshal
of the United States, under an execution in fa-
vor of the United States gainst A, should seize
the person or property of fi, then the state courts
have jurisdiction to protect the person and the
property so illegally invaded."

The error into which the learned ClumceUor
fell, from not being practically familiar with
the jurisdiction of the federal courts, arose from
not appreciating, for the moment, the effect of
transferring from the jurisdiction of the federal
court to that of the State the decision of the ques-
tion in the example given; for it is ouite clear,
upon the principle stated, that the jurisdiction of
the f ormer,and the validity and effect of its proc-
ess, would not be what the federal, but what the
state court, might determine. Ko doubt, if the
federal court had no jurisdiction of the case, the
process would be invalid, and the seizure of the
property illegal, for which the aggrieved party
is entitled to his remedy. But the question is,
which tribunal, the Federal or State, possesses,
the power to determine the question or jurisdic-
tion or validity of the process? The effect of
the principle stated by the Chaneelior, if ad-
mitted, would be most deep and extensive in its
operation upon the jurisdiction of the federal
court, as a moment's consideration will show.
It would draw after it into the state courts, not
only all questions of the liability of property
seized upon me9ne and final process issued un-
der the authority of the federal courts, includ-
ing the admiralty, for this court can be no ex-
ception, for the purposes for which it was seized,
but also the arrests upon mesne, and inrprison-
ment upon final process of the person in both
civil and criminal cases, for in every case the
question of jurisdiction could be made; and
until the power was assumed by the state court,

752

and the question of jurisdiction of the federal
court was heard and determined by it, it coold
not be known whether in the given case it ex-
isted or not. We need scarcely remark that no
government could maintain the administration
or execution of its laws, civil or criminal, if the
jurisdiction of its ludicial tribunals were sob-
ject to the determination of another. But we
shall not pursue this branch of the case further.
We regard the question as settled, at least w
early as United ataUs v. Bstert, 5 Cranch, 115.
familiarly known as The (HfMtead case, and
which is historical, that it belongs to the feder-
al courts to determine the question of their own
jurisdiction, the ultimate arbiter, the supreme
judicial tribunal of the nation, and which has
been recently reaffirmed, after the most careful
and deliberate consideration, in the opinion of
the present Chirf JfisUce, in the case of The
United States v. Booth, 21 How., 606.

II. Another misapprehension, under which
the counsel for the aefendant in error labors,
and in which the court below fell, was in re-
spect to the appropriate remedy of the plaint-
iffs in the replevin suit for the grievance com-
plained of. It was supposed that they were ut-
terly remediless in the federal courts, inasmuch
as both parties were citizens of Massachusetts.
But those familiar with the practice of the fed-
eral courts have found no difficulty in applying
a remedy, and one much more dfectual than
the replevin, and more consistent with the ot-
der and harmony of judicial proceedings, as
may be seen by reference to the following casf*:
P»nnoekv, Ooe, 28 How., 117; Que^, TSs Wat-
er Canal Co., 24 How., 257. decided thia term;
GUprke v. Moithewson, 12 Pet., 164; Dunn v.
Clarke, 8 Pet., 1 ; 5 Cranch. 288.

The principle is, that a bill filed on the equity
side of the court to restrain or regulate Judg-
ments or suits at law in the same court, ami
thereby prevent injustice, or an inequitable ad-
vantage under mesne or final process, ia not an
original suit, but ancillary and dependent, sup-
plementary merely to the original suit, out of
which it hsA arisen, and is maintained without
reference to the citizenship or reddenoe of the
parties.

The case in 8 Pet., 1, which was among the
first that came before the court, deserves, per-
haps, a word of explanation. It would seem
from a remark in the opinion, that the power
of the court upon the bill was limited to a case
between the parties to the original suit Thi»
was probably not intended, as any party may
file the bill whose interests are affected by the
suit at law.

In the case of Pennoek v. Coe, 24 How., 257.
the bill was filed by the mortgagee of the Rail-
road Company, in trust for the bondholders, an-
swering to the position of the plaintiffs in the
replevin suit in the case before ua. One v. TUk
Water Canal Company, decided at this term, if
an instructive case upon this subject, in which
the Chief Justice suggests the difficaltks of a
court of law dealing with this deacriptioo of
property, with a proper regard to the rights of
all concerned.

In that case the bill was filed on the equity aide
of the Circuit Court of the United States for the
District of Maryland , to restrain a sale of ^e de.
fendant's property on execution. Oue, the jndg
ment creditor, was a resident of Pennsyhfaiua,

UowARD V. Bl'obeb.

46U16S

pioper authority, or If it woi, whether il c
erea after acquired property, as not materia
the ca«e before ua. The latter queetioQ 1

Belts, as they are unimportant in our view of

Upon tht whole, after the fuUeit eoniideration
of tA6 eate, ajtd utmotl rapml for the learnirig
and abUit]/ of the court below, lee are etnutrained
to differ from it, aTid reairie the judgment,

Ctt«d-mU.S.nWHll.),SS!:70D.a.l3Wall.),33S,3ia,
3U. SU. SIT: 78 V. S.JS Wall.), IM. OA, IGS, TU : SB (J. S.

(ffiWall.), asa; 80 Cr. 8. 118 Wall.). 719,718. 737; 81 U.
U. (11 Wall.}, it ; 83 tJ. a. (la WaU.). les, £18 : 87 IT.
8. (20 Wall-I, see; W C. B.m WalU m; 1(K U. 8.
SeS; lOa n.S„4Bl: 1(» U.S., SE: a Bank. Rev- ilA
U8i 4Beii.,Wi3Blw.,S2B:SBank, Keir.. 13e:3Banlc.
Be«.,I31,IU; 8Bank.KeK..IWi,E" i r " }..

124.(18: 8 BlBa..3£RL4 Blw.,im.)..' . i . .' .' O;
II Blatehf.. ^3: 1 Wooiw.. S^: " u :. 17,

HI; 1 Ben.. 287; 1 Wooda., ITS; a h. i ■ .. i i .p..
1T3; 1 Holmea, 850: 18 Bk. tteg.. ti. . > .ii: . v1;

s niiods,4£i:a Wood&Baa, t^: -.' \i.<'., i, , .i,:,\ e

BlBa..3i; 8 Bias.. 4W; 10 Bin., 481. i'^: . i> H-i, .1:3;
4 BuB:bG«, aOO; fi Rug-hea. 4ie, i ii : l.< liNiii'lif.,
30: ISBlatohf., IM: 27i;hJ., 170: 7[ N. v.. iv>. u i;l.,
423:HHlDn., MA: leMlno., 480: 2 Mn.. Ii-i'.. '-\ '40
Qa.. 866): 4 Am. Rep.. 189 (t8 Iowhi.-><. li A in II<'g..
swam Maei.. war, iaAm.Sm..1&!iiaUiaa.,4Sai;lft
Am. Rep., 8 (III HaM., (fT) : ^ Am. Kap., 4IA, 417 (11
U. I., 8«J: aO Am. Hep.. t8t (H N. Y., 185) ; 88 Am.
Sep., r.3 (44 Mlob.. SSS).

THACKEBB. HOWARD, Plff. in Er.,
FRANCIS BUaBEE.

(See S. C. 21 How., 4S1-1SS.)

Btate late, for redemption from mortgage *aie, it

mid o* to prior mortgage.

A law of a State authoriilng a judgment oredltor
of a mortgaRor at anj tlmo wltbln two rear* after
the sale under a mortfra^. to redeem the land from
the purcbuie, oa paylog tbe purcbswi molten, wlcb
Interest, and atuirgies. as to a mortgage eieaiil«l
before the passage of the Law prorldine for Che re-
demption, Is iaoperatlve and vold,aa Impairing the
obligation of the eontraot.

Branaonv. Klnxle, M C. 8.,8II i atOrmed.lS (T.S.,
SI2;44n.3.,7ie.

Argued Feb. fS, 1881. Decided Mar. li. 1861.

IN ERROR to tbe Supreme Court of the SUte
of Alabama.
This bill was 91ed in tbe court of chancerj
in Alabama, by Buebee, preaent defendaut id
error, tinder the cTrcumalonces stated In the

On the flrat hearing of the bill. It was dis-
tniased by the ChaneeWir. This decree, on ap
peal, was reversed by the Supreme Court of
tbe Stale. A secooa decree was rendered by
the court of chancery in conformity with the
opinion of the Supreme Court, This decree
was affirmed on appeal b^ the Supreme Court
of Alabama, and from this decree of affirmance
Howard now prosecutes his writ of error.

Mr. P. PUlUpB. for tbe plaintiff in error.

Tbe Statute of Alabama, approved Jan. 1.
1843. OUy's Dig., 503, sutborizesa redemption
See 24 Hon U- S., Hmk U.

in two years after the sale, under the decreeby
bona fide credltaia of defendant.

The Supreme Court oC Alabama has decided
that this slatule applies to sales under mort-
gaeea executed prior to the passage of the Act,
ana tbe question Is. whether this statute thus
construed impairs the obligation of a contract
within the meaning of the Constitution. The
lex loei eontraetu* at the time of the execution
of tbe mortgage is a part of the contract.

Sto. Com., ch.84. sec. 1ST8.

By the terms of the mortgage, the estate be-
came absolute on default of payment; yet the
mortga^r had the right to redeem after de-
fault, because such was tbe law at dale of the
contract. So, for the same reason, the mort-
gagee bad the right, after default and in the e.b-
sence of the offer to redeem, to have the prem-
ises sold absolutely, to pay the debt. The
statute in question provides for a sale subject
to redemption in two years. The mortgage in
effect stipulates for an absolute sale after de-
fault. The statute, therefore, does not merely
change the remedy, but impairs the obligation
uf (he contract.

Brongonv. Kinzie, 1 How,, BI6.

The right of the Legislature toexempt certain
articles of necenaity from eieculion. Is stated
in this case to be "considered as properly be-
longing to the remedy." This, however, has '
been denied by very high authority.

QaaekertimtA v. Dankt, I Den., 28: 8 Den.,
5M; I Cora.. 189; Thorne v. San Franeieeo, 4
Oal.. 181.

Tbe statute under consideration is, in all re-
spects, like that which in Broneon v. Eiiizie,
1 How,, 316, was held to be unconstitutional.
There the question was, whether the morlgagoe
was not entitled lo an absolute sale, regaralesB
of the statute. Here the question is, whether
the purchaser undersuchasale can be deprived
of his right to the fee simple, by virtue of the
redemption provided by the statute.

The case of OanUy y. Eaing,3 How., 716,
in which the statute was determined to be Qn-
constitutional, was, as in this, a contest with
the purchaser, and only differs from it in the
fact that the obnoxious statu(« was passed
after tbe decree, but before the sale, while in
this case it was pawed before the decree.

See, also. VeVraeken v. Hiyiear.S How. , 613.

Mr. C. O. ClB-r. Jr., for defendant In error:

The case presents the constitutionality of the
Act of tbe Alabama Legislature, approved Jan-
uary I, 1842, so far as the same affects mort-
gages previously executed. The argument of
the appellant is: the Redemption Statute of
Alabama, if applied to pre-existing contracts,
is a law impairing the obll^^tion of contracts.

The distinction between rights and remedies,
between thoee statutes which confer a right
and thoee which furnish a remedy for the en-
forcement of that right, is well marted. The one
inheres in and follows the contract, wherever
it may go; the other is dependent on the local
legislation of the place where the parties seek
to enforce the right.

Aopb T. TUAete, 4 Cow., 364; Baugher v.
Nelttm. 9 Gil!., 298; U. 8. Bank v. Longworlh,
1 McL, 85; Pratt v. Jonei. 25 Verm., 303;
Searcy v. Slubbs, 136a., 4S7; P/uehalv. Pera,
7 Tex., 884; Hope y. Johneon, 2 Yerg^ 125;
MaWiy V, Cooper, I Morr. la., 69; Wat t

'iU

60;-626

SUPBSIIX COUBT OF THB UHXTBD ^tAlML

Dbc. Tbbm,

OretUtoTi, 1 La. Ann., 865: Newton v. THbbatU,
2 Bag. i[Ark.), 150; BocktMUv. HubbeU, 2 Doug.
Mich., 197.

It is also well drawn in the able dissenting
opinion of Jutdice McLean, in the case of Broji-
Hon V. Eimie, I How., 811, 822.

The Statute of 1842 takes away no risht. It
leaves the debt unimpaired — leaves the debtor's
property subject to the debt, and only modifies
the form of enforcing the decree.

The obligations of the present contract were:

1st. The promise to pay the debt.

2d. The pledge of lands as security.

It was no part of the contract that the law
for the collection of that debt should continue
as it then was. This was a question of legisla-
tive discretion, not within the control of the
debtor. The terms of the contract neither ex-
pressed nor implied that the remedy should not
be changed. The most that can be affirmed
on this head is, that the parties impliedly
stipulated that the mortgagee should be armed
with the legal process in force, when he should
invoke it to enforce the collection of his de-
mand. This was not one of the obligations of
the contract, but an incident which the law
imparted to it.

To hold otherwise would be to cramp the
Legislature and lead to the most embarrassing
results. Counsel argued a^nst adhering to
the case of Bronton v. Kinsne, He contended,
however, that there was a distinction between
that case and the one at bar, and in support of
that position, quoted, at some length, from the
opinion of the Supreme Court of Alabama in
the present case.

The argument of appellant is, that by the
Act of 1842, two years are added to the time
within which the mortgagee can obtain com-
plete satisfaction of his demand. In the first
place I deny this. The policy and tendency of
redemption statutes are to enlarge the chances
of collection. But conceding this to be so,
does the fact that, in the change of judicial
proceedings, a remedy less summary has been
provided, impair the obligation of the contract?
What additional length of time will have this
effect? If two vears* delay will violate the
Constitution, will two months do the same?

The form of the remedy is no part of the
binding stipulations of the contract, and Will be
changed at the will of the Legislature, provided
that under the pretense of modifying the re-
medy, all substantial remedy be not taken away.

Mr. Jtutiee Nelson delivered the opinion of
the court:

This is a writ of error to the Supreme Court
of the State of Alabama.

The case was this:

Enoch Parsons executed a mortgage of the
premises in controversy, on the 9th December,
1886, to Sarah Tait, to secure the payment of
$18,246.66. The last installment fell due in Jan-
uary, 1841. In March, 1846. proceedings were
instituted in the court of chancery to foreclose
the mortgage for default in payment; and in
September, 1848, Howard, the appellant, be-
came the purchaser of the premises, under the
decree of foreclosure, and held a deed of the
same duly executed by the proper officer.

In January, 1842, the Legislature of the
State of Alabama passed an Act authorizing a

754

Judgment creditor of the mortgagor, or of his
estate, at any time within two years after the
sale under a mortgage, to redeem the land
from the purchase on paying the purchase
money, with a certain percent interest, besideB
charges.

Bugbee, the appellee, and plaintiff in the
court below, having recovered a Judgment
a^inst the estate of Parsons in 1843, tendered
within the two years the purchase money»lnter-
est and charges, to Howard, and also a deed of
the premises to be executed; all of which were
refused. This bill was filed in the court of
chancery in Alabama by Bugbee to compel
Howard to receive the money in redemption of
the sale and execute the deed.

The main ground of the defense in that snit
was, that the mortgage from Parsons under
which the defendant derived Utle, having tieen
executed before the passage of the Act provid-
ing for the redemption, the Act, as respected
this debt, was inoperative and void, as impair-
ing the obligation of the contract.

The court of chancery so held and dismissed
the bill. But on appeal to the Supreme Court,
that court reversed the decree below, and en-
tered a decree for the complainant. The case
is now here on a writ of error to the Supreme
Court.

The only question involved in this case was
decided in Braruan v. Kineie, 1 How., 811. It
was there held, after a very and careful extended
examination by the court, through the ChufJwt-
tiee, that the state law impaired the obligation
of the mortgage contract, and was forbidden by
the Constitution. This decision has since beoi
repeatedly affirmed. 2 How., 6 12; 8 How., 716.

It is due to the Judges of the court below to
say, that they felt bound by a decision of their
predecessors, which they aidmitled to be in di-
rect conflict with the case of Broman v. f Mtw,
and that the two decisions could not be recon-
ciled.

We are entirely satisfied with the soundness
of the decision in the above case, and with the
grounds and reasons upon which it is placed,
and shall simply refer to them as governing the
present case.

Decree beUno, recereed. Case remitted wth di-
reetione to enter decree for the pUUntif in err^r.

Cited— 2 Bond., 163; 4 Am. Bep., U7 (48 Ahu, 44).

WILLIAM H. BELCHER and CHARLES

BELCHER, Ptffe, in Er.,

«.

WM. A. LINK.

(See 8. C, 24 How., 6(»4UM.)

Acte, of tribunal or officer hating juriediction,
are Undinff — question of power in the officer,
or frauds may be raided — duUee — aipprMetrn
— export duty, when added to invciee price. i»
determine value — mifdeeeription may be ear
rected or disregarded — detention of goods nec-
essary to appraisal — no aUowanee for leakage
or deterioration,

NOTB.— AmMiruttvi't iirr<t(eniruCrttiN«tit,iefc<ii ti-
T^laiiioMje hy parol. Its effect upon the in$Untm€Mt.
See naif to Atkinson v. Uummins, SQ U. 8. (9 How.>.
4T9.

<& U.S.

1860.

Balchbb y. Lnm.

008-526

When power or Jurisdlotlon is delegated to any
public officer or Uibunal over a subject-matter,
and its exercise is coallded to bis or its discre-
tloQ, the acts so done are. In general, binding and
Tslid as to the subject-matter.

The only questions which can arise between an
individual and the public, or any person, denying
their validity, are as to power in the officer and
fraud in the party.

Payment of duties cannot be avoided because
the importation Is misdescribed either in the in-
voice or the entry, or in both, at the same time.

Appraisers are required to appraise, estimate
and ascertain the true market value of the impor-
tation, no matter what name may be affixed to it
by the importer.

Where green sugar was subj€»ct to the export
duty, but molasses was not, if the importations
ought to have been classed with the former, then
the Importer ought to have paid the export duty,
and the determination of the appraisers was not an
unreasonable one that, where no export duty had
been paid, it was necessary to add a sum to the in-
voice valuation equal to the export duty to which
It would have been subjected, if it had been cor-
rectly Invoiced, in order to bring the dutiable
value up to the actual market value or wholesale
price in the f orciirn market.

It was competent for the appraisers to correct a
misdescription in the invoice and entry, or disre-
gard it, so as to perform their duty as required by
law.

Any dispute as to the nature of the produce im-
ported, and its consequent classlfloation in the in-
voice and entry, were questions of fact within the
Jurisdiction of the appraisers, and their decision is
final and conclusive.

Appraisement of the goods is required by law,
and as the detention of the gooda is the necessary
consequence of that requirement, it cannot be
held that it affords anysrouud of action.

Duties are required oy law to be assessed on the
goods, and the assessment is uniformly made on
the quantity entered at the custom-house, without
any allowance whateyer for ordinary leakage and
deterioration.

Argued Mar. 7. 1861, Decided Mar. U, 1861,

IN ERROR to the Circuit Court of the United
States for the District of Missouri.

This was an action of (usumpsit, commenced
by the present plaintiffs in error in the court
below, ^gainst William A. Linn, Collector of
the port of St. Louis, to recover an alleged ex-
cess of duties which had been paid, under pro-
test, on six cargoes of sugar, or concentrated
molasses, impoHed from Cuba and entered at
New Orleans in May and June, 1853. The
court charged the Jury, that upon the whole
evidence in the case, the plaintiffs could not
recover. Verdict and judgment were, therefore,
entered for the defendant, and the plaintiffs
brought the case to Uiis court by writ of error.

The case further appears in the opinion of
the court.

Mevtrs. P. PhiUips and Rewerdy John-
son* for the plaintiffs in error.

Messrs, J. S* Black and £• M. Stanton*
for the defendants in error.

Mr. Justice Clifford delivered the opinion
of the court:

This is a writ of error to the Circuit Court
of the United States for the District of Mis-
souri. The suit was commenced on the 16th
day of Septembei-, 1854. It was an action of
assumpsit^ and the declaration contained a
count for money had and received, together
with three special counts, which are set forth
at large in the transcript. Plaintiffs were mer-
chants residing at St. Louis, in the State of
Missouri, and the defendant was the surveyor
of that port, appointed under the Act of March
2<1, 1831 (4 Stat, at L., 480), upon whom, by

See 24 How.

that law, were devolved the duties of collector,
and the suit was instituted by the present
plaintiffs against the defendant as such collect-
or, to recover an allege excess of duties which
they had previously paid under protest on six
cargoes of merchandise invoiced, among other
things, as concentrated molasses. Other causes
of action were also set forth in some of the
special counts, to which reference will here-
after be made. Defendant pleaded that he
never undertook and promisea in manner and
form as ti^e plaintiffs had declared against him,
and upon that issue the parties went to trial.
All of the merchandise on which the duties
were exacted and paid was imported from
Matanzas, in the Island of Cuba, and was con-
signed to the plaintiffs, who were doing busi-
ness at St. Louis. Under the laws of the United
States, merchandise cannot be imported di-
rect from a foreign port to the port of St.
Louis, but all such importations are required
to be first entered at the custom-house in New
Orleans. Some brief reference to the usual
course of proceeding in such cases, as required
by law and the regulations of the Treasury
Department, becomes indispensable, in order
that Uie precise nature of the controvexsy m^
be fully understood. Upon the arrival, at New
Orleans, of a vessel from a foreign port, having
on board merchandise exported from a forei^
port, and consigned to a merchant at St. Louis,
It is required, if the mercandise is sulHect to
an import duty under the laws of the United
States, tiiat an entry of the same shall be made
at the custom-house in New Orleans, in the
same manner as reouired in case of entry for
consumption, and the officers of the customs at
that port then proceed to ascertain and assess
the duties to be paid to the United States, pre-
cisely in the same way as if the merchandise
had been destined for that market ; whereupon
a bond, called a transportation bond, is given
by the importer or his agent to the lilted
States, conditioned that the packages described
in the invoice, with marks corresponding
thereto, shall, within a specified time, be de-
livered to the Surveyor and acting Collector
of the port of St. Louis. Notice of the pro-
ceedings ought then to be given by the collect-
or of the port where the duties were ascertaUied
and ass^sed to the acting collector of the port
to which the merchandise is destined; and
when the packages are received at the port of
destination, they are placed in the custody of
the acting collector of that port, who receives
the duties, giving notice of that fact to the col-
lector of tlie port where they were ascertained
and assessed, and the collector of the latter port
is then authorized by law to cancel the trans-
portation bond given bv the importer. Six
vessels arrived at New Orleans, from Matanzas,
in Majr and June, 1858, having on board mer-
chandise shipped from the latter port, and con-
signed to the plaintiffs, and it appeared that
certain portions of their respective cargoes
were invoiced as concentrated molasses. Pur-
suant to the usual course of proceedings in such
cases, the plaintiffs, on the arrival of the ves-
sels at New Orleans, made separate entries of
the respective cargoes, as required by law, at
the custom-house of that port, in order that the
duties due to the United States might be ascer-
tained and assessed. In making the entrirs.

508-52e

BuFBBMB Court of the Ukitbd Statbb.

Dec. Tjekx,

however, they followed the inyoice, describing
the merchandise in question as concentrated
molasses, and carrying out the dutiable value
accordingly, without making any addition in
the entry to the cost and value of the article on
account of its peculiar character. One of the
entries was made on the 10th day of May. 1853,
and the last two were made on the 6th day of
June, in the same year. Conforming to the
requirements of law, the collector of tne port
submitted the matter to the local appraisers to
appraise, estimate, and ascertain, the dutiable
value of the merchandise, and they added one
half real per aitoha, equal to six and one fourth
cents for every twenty five pounds Spanish
weight, to the invoice valuation of the mer-
chandise. From that decision the plainti£Ps
appealed, and called for an appraisal of the act-
ual value of the goods in the foreign market by
merchant appraisers. They, the plaintiffs, in-
formed the collector on the tlth day of June,
1 858 , t hat they should appeal, and on the 1 4th day
of the same month the collector notified them
that the appeal was allowed, but stated that he
should not appoint appraisers until he heard
, from the Department, as he desired the aid of
a general appraiser. Considerable delay en-
sued ; but on the 28th day of September, of the
same year, the collector, acting under the in-
structions of the Secretary of the Treasury,
and the plaintiffs, entered into a written agree-
ment, to the effect that they would substitute
samples in the place of the merchandise, and
submit the matters in dispute in all the cases to
the determination of the Board of General Ap-
praisers to be convened at the City of New
York as soon as practicable, stipulating, at the
same time, to abide by the appraisement of the
board *' in the same manner, and to the same
extent, as if it had been made by merchant ap-
praisers regularly appointed according to law."
Acconlingly, the general appraisers heard the
several appeals, and on the 19th day of Octo-
ber. 1858, made a report in writing. Concen-
trated molasses constituted a portion of the
cargo in five of the cases appealed, and it ap-
peared by the report of the general appraisers
that in all those cases they made an addition to
the invoice value of that portion of the mer-
chandise embraced in the entry. Of the five,
it will be sufficient to give one as an example
of the rest. It is as follows: " To add export
dut^ on 522,888 lbs., at 87i cts. per 500 lbs."
Their reasons for makine the addition are fully
stated in their report. After stating that they
had examined the samples, they say: "The
Board assume that both the concentrated meUi-
da and concentrated molasses are sugar in a
green state, and they are borne out in this view
of the case by the invoices themselves, the con-
centrated molasses in every case being invoiced
per arroba as sugar, and not per keg as molas-
ses; the casks are also charged as sugar casks.
The concentrated molasses is not susceptible of
bemg guaged, which is another evidence that
its proper classification is sugar."

Plaintiffs proved that the goods were assessed
at New Orleans, according to that appraise-
ment, and that they afterwards paid the duties
under protest, to the defendant at St. Louis.
They protested against the including in the
computation of the dutiable value of the goods
any sum whatever for export duty, averring

in the protest that no such duty was paid by
them, or demanded by the authorities at the
place of exportation. Testimony was ahm in-
troduced by the plaintiffs tending to show that
concentrated molasses was well known in the
foreign market; Uiat it was not at that time
regarded as sugar; that it was not subject to
the su^r duty; that no such duty was de-
manded or paid; and that the invoice price
represented the fair market value. Their wit-
nesses were cross-examined by the defendant,
and from the cross-examination it appeared
that the plaintiffs, in 1862. set up a sugar boil-
ing establishment at Matanzas, and that among
the products manufactured by them was the
article invoiced as concentrated molasses,
which it seems is melada, or syrup boiled down
to a denser consistency, and is manufactured
by boiling the melada, and thus evaporating
the watery portions until the point of crystal-
lization is reached. Concentrated molasses, as
the witnesses state, is a recent manufacture,
and was unknown in the foreign market until
about the lime plaintiffs commenced to pro-
duce it from their establishment. When the
article first appeared, the authorities, for a short
time, allowed it to be exported without exact-
ing any duty; but it was soon classed with
green sugars, and charged with an export duty
of eighty-seven and a half cents for every
twenty arrobaa of twenty -five pounds Spanish
weight. Like sugar, it is sold, invoiced, and
valued by weight, and not by measure, like the
ordinary article of molasses. On the other
hand, the defendant called and examined one
of the general appraisers. Among other
things, he testified that —

"The Board did make alterations from the
invoice price or value by adding eighty-eeven
and a half cents for each five hundrra pounds,
invoice weight, and two reals or twenty-five
cents to each barrel, in order to raise the same
to the actual market value, or wholesale price,
at the period of exportation in the principal
markets of the country from which the same
had been imported.

*' The sums in figures set out opposite these
several entries were additions made by the
board to the invoice value of the merchandise.
The 87i cents for each 000 pounds was added
to make the market value of the suf^ars called
'concentrated moUsses,' and 25 cents to estdi
barrel was added to make the market value of
of the barrel.

'* The term, 'to add export duty on,' was
used as expressive of the principle upon which
this sum was added, and not as conveying the
supposition or belief that an export duty had
been paid by the importers, or even that such
an export duty was legally due to the Cuban
Oovernment; but it was added upon the prin-
ciple that if the sum of 87i cents per each 500
pounds was not payable for export duty, the
value of the merchandise was thereby incrnsed
lust that sum in the foreign market. Sugara
oeing the basis of the appraisement, and 87^
cents per each 500 pounds being the export
duty on the same, that sum was i^ded to make
the true foreign market value at the period of
exportation."

To all this testimony the pluntiffs objected.
but it was admitted by the cturt, and the
plaintiffs excepted.

66 U.8.

1860.

Bjilcbbr v. Linh.

508-^26

Thirteen points were then presented by the
plaintiffs for instruction to the jury.all of which
the court refused to ^ve, and on the prayer of
the defendant the jury were instructed, that
" on the whole evidence the plantiffs cannot re-
cover. " Under the rulings and instructions of
the court the Jury returned their verdict in
favor of the deiendant, and the plaintiffs ex-
cepted to the refusal of the court to instruct the
jury as requested. and to the instructions ^ven,
that they, the plaintiffs, were not entit^ to
recover. On this branch of the case two ques-
tions are presented for decision: 1. Whether
the addition was lawfully made to the invoice
valuation of the merchandise described in the
entry as concentrated molasses. 2. Whether
the testimony of the general appraiser, as to the
action of the Board in making the appraisement,
was properly admitted.

1. It is provided by the Act of the M of
March. 1851, to the enect that the collector, in
all importations subject to an od valorem duty,
shall cause the actual market value or whole-
sale price of the importation at the period and
place of exportation to be appraised, estimated
and ascertained, and to such value or price shall
be added all costs and charges, except insur-
ance, including in every case a charge for com-
missions at the usual rates; and by the true
construction of the Act,and, indeed, by its very
words, that appraisement, estimation and as-
certainment, when regularly made, becomes and
is the true value of the importation at the place
where the same was entered, ** upon which
the duties shall be assessed. " By the 8th section
of the Act of July 80th, 1846 (9 Stat. atL.,
42), it is also provided, that it shall be the duty
of the collector, within whose district dutiable
goods may be imported or entered, to cause the
duitable value of such imports to be appraised,
estimated and ascertained, in i^scordance with
the provisions of existing laws, and if the ap-
praised value thereof shall exceed ten per cent,
or more the value declared on the entry, then,
in addition to the duties imposed by law on the
same, there shall be levied, collected, and paid,
a duty of twenty per centum ad valorem on such
appraised value. But k proviso is added, that un-
der no circumstances shall the duty be assrased
upon an amount less than the invoice value;
any law of Congress to the contrary, notwith-
standing. Importers are required to make an
entry of their respective importations, which
should always be accompanied by the invoice;
and when the invoice is received, the packages
for appraisement are designated on Uie invoice
by the collector, who orders one in ten of them
to the public store for the purposes of the ap-
praisal. Examination of the selected packages
18 then made by the local appraisers: and if, in
their opinion, the invoice value is too low, they
increase it. and notify their doings to the col-
lector; and if no appeal is taken from their ap
praisement by the importer, their decision in
the premiHes is final and conclusive as to the
dutiable value of the importation. Every im-
porter, however, under those circumstances, has
the right to appeal to merchant appraisers.
Merchant appraisers formerly consisted of two
merchants, one chosen by the importer and one
by the collector; but under existing provisions
of law, the collector may select a govern-
ment appraiser, so that in the larger ports the

Bee 24 How.

Board usually consists of a merchant selected
by the importer, and a permanent appr^ser
selected by the collector. 9 Stat, at L., 630.
On the appeal, the merchant appraisers, so
called,examine the packages ordered to the pub-
lic store, appraise, estimate and ascertain the
actual market value or wholesale value thereof,
at the period of exportation to the United States,
in the principal markets of the country from
which the goods were imported, and certify the
value so appraised, estimated and ascertained,
to the collector; and in the absence of fraud,
their decision is final and conclusive, and their
appraisement in contemplation of law becomes,
for the purposes of calculating and assesssin^ the
duties due to the United States, the true dutiable
value of the importation. Act August 80,1842,
sec. 17, 5 Stat, at L., 564; Appraisement Act,
March 8, 1851, sec. 1, 9 btat. at L., 631. As
was said by this court, in Bartlett v. Kane, 16
How., 272, the appraisers are appointed with
powers, by all reasonable ways and means, to
appraise, estimate and ascertain the true and
actual market value and wholesale price of the
importation. The exercise of these powers in-
volves knowledge, judgment and discretion.
We hold, as was held in that case, that when
power or jurisdiction is delegated to any pub-
lic ofllcer or tribunal over a subject- matter, and
its exercise is confided to his or their discretion,
the acts so done are, in general, binding and
valid as to the sublect matter. The only ques-
tions which can arise between an individual and
the public, or any person, denying their valid-
ity, are power in the officer and fraud in the
party. All other questions are settled by the
decision made or the act done by the tribunal
or officer, whether executive, legislative, judic-
ial, or special, unless an appeal or other revis-
ion is provided for by some appellate or super-
visory tribunal prescribed by law. United States
V. Arredondo, 6 Pet., 691; Bankin v. Hoj/t, 4
How., 827; /8totr» v. Peaelee, 18 How., 524.
One of the questions presented in the case last
cited was, whether, in estimating the dutiable
value of a certain article called cutch, the ap-
praisers should have taken the value at the
market of Calcutta, or London and Liverpool,
or Halifax, at the period of exportation from
the latter port; and tJie Chief Justice, speaking
for the whole court, held, that in estimating the
value of the cutch. it was the duty of the ap-
praiser to determine what were the principal
markets of the country from which it was ex-
ported into the United States, and that their
decision that London and Liverpool were the
principal markets for the article, was conclu-
sive. Applying these principles to the pres-
ent case, it follows, we think, wholly irre-
spective of the parol testimony, that the value
of the importations certified to the collector
constituted the true and actual dutiable value
of the merchandise embraced in the respect-
ive entries made by the importers, and there
is nothing in the statement accompanying the
report, when considered in connection with
the report itself, that is in any manner incon-
sistent with the view here taken as to the legal
effect of their actton in the premises. On the
contrary, it is difficult to misconstrue their re-
port. They determine, in the first place, that
the article described in the invoice and entry as
concentrated molasses, was, in point of fact, a

767

68&-585

BuFBxiai Ck>rmT or thb Untted States.

Dec. Tesm,

species of green sugar, and that the inyoice and
entry were erroneous, not onlv with respect to
the value affixed to the article, hut also as to
its description. Pavment of duties cannot be
avoided because the importation is misdescribed
either in the invoice or the entry .or in both, at the
same time. Appraisers are required to appraise,
estimate and ascertain the true market value
of the importation, no matter what name may
be affixed to it by the importer, and he cannot be
benefited in the estimation of the duties here by
the fact that, by accident or otherwise, he suc-
ceeded in exporting the packages from the for-
eign country without being subjected to Uie
usual and lawful exactions there imposed. New
manufactures naturally and constantly rive
rise to new questions in regard to revenue; out
it cannot operate to benefit the plaintiffs in this
controversy, that the subordinate authorities, at
the place of exportation, were for a time misl^
or deceived as to the real character of the pro-
duct in question, or that they mistook Uie true
nature of their duty. Green sugar was subject
to the export duty, but molasses was not; still, if
the importations in question ought, in fact, to
have been classed with the former, then it is
clear that the importer, as matter of legal obli-
gation, ought to have pud the export duty, and
the determination of the appraisers was not an
unreasonable one; that it was necessary to add
a sum to the invoice valuation equal to the ex-
port duty to which it would have been sub-
jected, if it had been correctly invoiced, in
order to bring the dutiable value up to the act-
ual market value or wholesale price in the for-
eign market. Both the report and the state-
ment annexed to it must be taken in pari ma-
teria, and considered together; and when so
construed, they do not appear to differ in any
respect from the explanations given of them in
the testimony of the general appraiser. With-
out regard to that testimony, it is not possible
to hold that the Board added the export duty
to the several importations, regarding the arti-
cle as molasses, because they expressly state in
the outset that they assume that concentrated
molasses is sugar in a green state, and proceed
to give their reasons for the conclusion, deduc-
ing the reasons given from the various invoices,
which, as they affirm, bear them out in that
view of the case. It is clear, therefore, that
the appraisers did not add the eighty-seven and
a hall cents to the invoice valuation as an ex-
port duty on molasses, and it is conceded that
sugar in a green state was by law subject to the
export duty; so that putting the parol testi-
mony in question out of the case, still the
plaintiffs are not entitled to recover.

2 . But suppose it to be otherwise, and that the
words, " to add export duty on," as contained
in the statement annexed to the report, are to
be separately considered; still, it is difficult to
see how the admission can be of any service to
the plaintiffs. They must still maintain that
the importations were, in fact, molasses, and
that the export duty was added by the apprais-
ers to the invoice valuation of molasses, as such,
else they have no standing in court, for they
do not deny that if the prwluce in question was
really sugar in a green state, that it was com-
petent for the appraisers to correct the misde-
scription in the invoice and entry, or disresard
it, so as to perform their duty as required by

768

law. Unless they have that rig^t, then the
grossest frauds may be committed by an im-
porter with perfect impunity; and if they have
that right, as clearly they must, then it follows
that any dispute as to the nature of the produce
imported, and its consequent classification in
the invoice and entry, were questions of fact
within the Jurisdiction of the appraisers, and
their decision is final and conclusive. On the
other hand, if it be admitted that the words
" to add export duty on " are ambiguous and
of doubtful signification, then the case would
be one where parol testimony would be admis-
sible to explain the ambig^uity, by showing;
what was done by the appraisers, and the man-
ner in which the value of the importations was
appraised, estimated and ascertained. U. S.
V. Southmayd, 9 How., 638; Oredy v. Tfum^^
sem, 10 How., 228; Oruiy v. Burgess, 18 How.,
413: Sampson v. Peadee, 20 How., 574; Bai^
kin V. Hayi, 4 How., 835.

8. Plaintiffs also claimed, in some of the counts
of the declaration, to recover back certain duties
alle^d to have been illegally exacted of them by
the defendant, on certain barrels exported empty
by them from the United States to Matanzis,
and brought back filled with concentrated mo-
lasses. That claim, however, is not pressed in
the case, because the same claim is embraced in
anoUier case, which is also before the court.

4. Another claim is to recover damage on
account of Uie delay which ensued in complet-
ing the appraisement, and the consequent leak-
age and loss of the concentrated mofaases; but
we are not able to see any just ground for the
claim, on the facts disclosed m the record.
Appraisement of the goods is reouired by law,
and as the detention of the goods is the neces-
sary consequence of that requirement, it can-
not be held, under the circumstances of this
case, that it affords any ground of action against
the defendant. Duties are required by law to
be assessed on the goods, and the assessment is
uniformly made on the quantity entered at the
custom-house, without any allowance whatever
for ordinary leakiure and deterioration. Mar-
riott V. Brufte, 9 How., 619; Lawrence y. Cos-
weU, 18 How., 488.

Fbr these reasons tee are cf the opinion that
there is no error in the record, and mejndffmetU
of the drcuU court is, therefore, affirmed, vnth
costs,

Cited-10 Wall., 453; 90 U.S. (23 WalL), 4106; ICUff.,
388 ; 2 Cliff., 600 ; 4 Cliff.. 100, lU.

WILLIAM H. BELCHER and CHARLES
BELCHER, Piffs. in Br.,

WM. A. LINN.

(8ee S. C, 24 How., 588-635.)

Barrels, manufactured in and exportedfivm U.
8., and brought back fiOed toiik miolaetes, are
Uahle to duty.

Molasses barrels, manu factured here and exported
to a foreign port, and there filled with maksmn*
and then imported with their contents to this
country, were not broufrht hack in the aame coo-
ditlonas when exported, within the trae InCeDt and
meaning of the Act of Conffreas.

The words ** the same condition ** mean not onl
that the identity of the article exported la ]

. MU.S.

1860.

Bblohbr y. Liim.

dd3-5d5

hut that its utility for its orlidnal purpOBO is un-
changed.

Barrels filled with molasses and imported here
formed a part of the charges of importation, and the
value of the same shouldbe added to the wholesale
price of the importation, in order to ascertain the
true basis on which to assess the duty.

Argued Mar, 8, 1861, Bedded Mar, U, 1861,

IN ERROR to the Circuit Ck)urt of the United
States for the District of Missouri.

This action was commenced by the present
plaintiffs in error, in the court below, to recov-
er of the defendant, Collector of the Port of St.
Louis, an alleged excess of duties upon certidn
barrels. Yeraict and Jud^ent were for the
defendant, under the direction of the court, and
the plaintiffs brought the case to this court by
writ of error.

The case further appears in the opinion of the
court.

It was argued by the same counsel and at the
same time as the preceding case, between the
same parties.

Mr. Jiutiee Clifford delivered the opinion
of the court:

This is a writ of error to the Circuit Court of
the United States for the District of Missouri.
The suit in the court below was brought by the

E resent plaintiffs against the defendant as the
urveyor and acting Collector of the .Customs
of St Louis, to recover the amount of certain
duties alleged to have been illegally exacted of
the plaintiff, and paid by him to the defendant
under protest. As alleged in the declaration,
the duties were assessed on the value of a large
number of barrels, manufactured bv the plaint-
iffs in the United States, exportea empty to
Matanzas, in the Island of Cuba, and brought
bark in 1858, filled with concentrated molasses
or sugar. It was an action of aemmpteU, and
the declaration contained the usual counts for
money had and received, together with a special
count detailing all the circumstances on which
the claim was founded. Defendant appeared,
and the parties went to trial upon the general
issue. At 4he close of the eviuenoe, five pray-
ers for instructions to the Jury were presented
by the plaintiffs, but the court refused to give
any one of them ; and at the request of the de-
fendant, instructed the Jury that, on the whole
evidence in the case, the plaintiffs could not re-
cover against the defendant. Whereupon the
jury returned their verdict in favor of the de-
fendant, and the plaintiffs excepted, and sued
out this writ of error to reverse the judgment
rendered on the verdict. Under the circum-
stances of this case,as exhibited in the transcript,
it will not be necessary to refer with much ]^r-
ticularity to the evidence, as the sole question
raised in the record is, whether the duties im-
posed upon the barrels by the Appraisers were
lawfully exacted. Satisfactory proof was in-
troduced by the plaintiffs, showing that all the
barrels were manufactured by the plaintiffs in
the United States, and that they were exported
empty to the foreign market, and there filled
with concentrated molasses, or sugar in a green
state, which was destined for the market of St.
Louis. One of the plaintiffs' witnesses testified
that the barrels, when they were received at the
sugar boiling factory of the plaintiffs in Ma-
tanzas, were empty, but when sent from thence

See 24 How.

to the United States, they were filled with the
different products of that establishment. Such
of the barrels as were designated to receive mo-
lasses were filled at the bung without being un-
headed, but it was necessary to take out one
head from those which were to be filled with
concentrated molasses, and all such of course
had to be recoopered. And the same witness
states, that in some instances it was necessary,
after the barrels were placcKl in the sugar boil-
ing factory, to add new hoops, but in all other
respects the barrels were filled and sent back in
the same condition in which they were received.
Unless the barrels were brought back in the same
condition in which they were when exported,
then it is clear that they could not be admitted
to entr^ free of duty ; and so, if the value of the
barrel m which a dutiable article or product is im
ported is one of the proper charges which are re-
quired by law to be added to the actual market
value or wholesale pried of the importation,then
it is equally clear that the same conclusion must
follow. Ixxih^iiSBQotJamee Knight et al. v. Au-
guehu Sehell (next case), decided at the present
term, both of those questions were determined
against the plaintiffs in this suit. That case was
determined upon full consideration, and we are
all satisfied that the decision of the question was
correct, and that the reasons given for the de-
cision are all applicable to this case and, there-
fore, they need not be repeated. It \& impos-
sible to hold that molasses barrels, manufactured
here and exported to a foreign port, and there
filled with molasses, whether it be the ordinary
article or that denominated concentrated, and
then reimported with their contents to this coun-
try, were brought back in the same condition
as when exported, within the true intent and
meaning of the Acts of Congress. Contrary to
the views of the plaintiffs, wo think the words,
'* the same condition," mean not only that the
identity of the article exported is preserved, but
that its utility for its original purpose is un-
changed. On this point, we adopt the view
taken by the defendant, because it appears to
be more consonant with the language of the
provision under consideration, and with the ob-
vious intent of Congress in passing it. Suppose
it be so; then it almost necessarily follows, even
within the prmciple assumed by the plaintiffs,
that barrels filled with molasses and imported
here formed a part of the charges of im|M)rta-
tion. They admit that such is the general rule,
but seek to establish an exception which would
include the present case. Now, unless the bar-
rels were brought back in the same condition
as when exported, then the reason on which the
supposed exception is founded fails; and it is
difficult to see why the present case does not
fall within the admitted general rule. Outside
packages belonging to tne merchant were re-
quirea to be estimated and their value added to
Uie actual cost of importation at a very early
period; and without referring to the subsequent
Acts of Consress and the regulations of the de-
partment, which were cited m the briefs of the
counsel, the better opinion is, we think, that
charges include, in general, the value of the sack,
pac^ge,box, crate, barrel, hogshead, bale, cask,
all outside coverings belonging to the merchant,
or, so to speak, the integument of the importa-
tion; and that the value of the same, to be es-
timated at the usual cost to the importer, should

759

526-688

dUFIUBMB COUBT Of THB UlTITBD StaTBS.

Dec. Term,

properly be added to the actual market value
or wholesale price of the importation, in order
to ascertain the true basis on which to assess the
duty.

For these retuoTU we are of the opinion thcU the
rulings and inetrtietion of the circuit court were
correct and thejudgmcnt w, accordingly, affirmed,
toith costs.

Cited-8 CUff., 182, 198, 800.

JAMES KNIGHT. JA8. H. WEST and
ROBERT SARGEANT, Plffs,

AUGUSTUS 8CHELL.

(Sees. C. 24 How.. 62(H»«i.)

Barrels manufactured in and exported from U,
S., and brought baekJUled with moiasses, are
liable to duty.

Barrels manufactured in the United States, and
exported empty, and afterwards brouirht back to
the United States filled with molasses purchased in
Cuba, were not brouirht back *' in the same condi-
tion as when exported," according to the true in-
tent and meaning of the Acts of Gonarress.

Casks, including barrels, as well as hogsheads, ex-

Sorted from the United States empty, and returned
lied, have almost invariably, since the passage of
the Tariff Act of the 20th of July, 1840, been Included
among the dutiable articles, although of American
manufacture.

Submitted Mar. 8, 1861. Decided Mar. U. 1861.

ON a certiflcate of division in opinion be-
tween the Judges of the Circuit Court of
the United States for the Southern District of
New York.

This was an action brought by Eniirht and
others, merchants and partners in business, re-
siding in the City of New Yprk, in the court
below, against Augustus Schell, Collector of
of the Port of New York, to recover back a sum
of money paid by the plaintiffs as duty upon a
quantity of barrels manufactured bv them in
tne City of New York, and sent by them from
the port of New York to Cuba, and there filled
with molasses, and brought back to New York
thus filled. No change was, made in the bar-
rels, except such as implied by their having
been filled with molasses. On the return of
the barrels, the collectors claimed that the bar-
rels were dutiable, and declined to allow them
to be entered dutv free, insisting that the filling
of them with molasses changed their condition
within the meaning of the Act of July 80. 1846.
and the Act of March 8. 1857. He exacted du-
ties on the barrels at the rate of 24 per centum
upon their value at Cuba, which was paid bv
the plaintiffs under protest. The plaintitfs
having complied with the provisions of section
6 of the last mentioned Act. brought this action
to recover back the monev so paid within the
time limited by said section. The defendant
pleaded the general issue, and the action was
brought to trial at the April Term, 1860. The
Judges of the circuit court were divided in
opinion upon the question whether the barrels
were, under the above circumstances, entitled
to entry duty free.
Mr. J. T. WiUianui, for the plaintiffs:
The Acts of Congress of July 80, 1846, and

760

March 8, 1857. provide that goods, wares and
merchandise, the growth, product or mana-
f acture of the Uniteid States, exported to a for-
eign country, and brought back to the United
States in the same condition as when exported,
shall be exempted from dutv.

The question is. did the filling of the barrels
with molasses change their condition t The ob-
ject of the Tariff Oiw in question ia obvioualy
the protection of home industry. There were
but two classes of articles that oonld reaao&a-
bly have been referred to; first, articles of per-
sonal apparel, toilet furniture, books for per-
sonal reading, tools and implements of mechan-
ical art; second, articles as boxes, barrels, bags,
&c., taken out to be filled and brousht back.

The first class was not the one referred to in
the provision under consideration, because it
was already exempted from duty by the Act of
1799, and as to such articles it is of no impor-
tance of what growth or where manufactured.
The provision m question, then, was intended
to apply to the class of articles to which the
barrels in controvert belong.

It remains to inquire, then, did Congress con-
template that the articles of this class diould be
brought back in the same empty condition in
which they were exported? Did Congress In-
tend to say to the manufacturer, that, for the
purpose of encouraging you to manufacture at
home, we provide that m case you so manufact-
ure them here and carry them to Cuba empty
and bring them back in the same empty condi-
tion, their shall, on their return, be entered
duty free; but if you fill them with molasaes at
Cuba, you shall pay duty upon them at d4 per
cent, of their value at Cuba?

It is not easy to see how it can be said that
that the condition of a barrel is changed by fill-
ing it with molasses. It is true that th^ are
bcSmeared with their contents; some of it has
penetrated the seams of the wood; Uiey are
more or less worn; but this results, inevitably,
from the use to which they are put Anything
carried out for any purpose must suffer similar
change from being applied to the purpose for
which it was sent out. The sending oat and
bringing back would be an idle expense unless
the articles were put to some use, and even if
put to no use whatever, the articles must, by
the very voyage, be more or less worn, and in
that respect their condition is changed.

Mr. Edwin M. Stanton, Atty-Genu, for
the defendant :

There are two answers to the claim for the
plaintiffs.

First. The Act of 1799 contemplates, and the
Act of 1857 expressly declares, that the barrels
or casks brought back must be in the same con-
dition as when exported, and not in the condi-
tion of vessels containinj^ (and only used and
imported as and for containinir) another and a
dutiable commodity. The declaration Itself
avers that the casks were brought back in the
same condition as when exported, although it
adds the words " with their contents.*'

Second. The Act requiring all charges u> be
added, specially enumerating "putting up
and packing," makes no excepti<m of charvea
for barrels manufactured in this country, aa oia-
tinguished from barrels manufactured abroad.

See Act of 1828, sees. 4, 7; 3 Stat., 729.

65 U.S.

1860.

EmoHT y. ScHXLL.

526-688

Mr, JuHiee Clifford delivered the opiDion
of the court:

This case comes before the court on a certifi-
cate of diyision of opinion from the Circuit
Court of the United States for Uie Southern
District of New York. It was an action of m-
iumpnt, brought by thejpresent plaintiffs against
the defendant, as the Collector of the Port of
New York, to recover back certain duties paid
by the plaintiffs under protest, upon certain
Imrrels, in which molasses was imported into
the United States from Matanzas.

It was proved, on the trial, that the plaintiffs,
in the year 1859, imported from Matanzas 728
Nirrels of molasses by the brie Irene, 801 bar-
rels of molasses by a vessel cal&d The Yumuri,
and 120 barrels of molasses by a vessel called
The Trovatore; that the barrels containing the
molasses were manufactured by the plaintiffs
at Newburg, in the State of New York, and
shipped from the port of New York empty to
Matanzas, where they were filled with molas-
ses, and returned in the three vessels above
named to the port of New York; that the bar-
rels were made up and completed in eveiy re-
spect before they were shipped to Cuba. They
were returned, most of them, in the same ves-
sels that carried them out from New York, and
all of them in the same condition in which they
were shipped or carried out from New York,
except being filled with molasses.

They were filled with molasses at Cuba.
When the barrels were brought back from Cu-
ba filled with molasses, in the vessels above re-
ferred to, the collector claimed that the barrels
themselves were dutiable, and that they were
not entitled to entry duty free. He claimed a
duty upon them at the rate of 24 per centum
of their value at Cuba, and refused to allow
them to be entered, unless such duty was paid;
that the plaintiffs paid to the defendant that
portion of the duties which was upon the sepa-
rate value of the barrels under protest, claiming
that the barrels were not legally subject to the
payment of any dutv, but were exempt from
duty by virtue of the provisions of the 47th
section of the Actof Conmss of March 2, 1799,
1 Stat, at L., 627, and of schedule I of the ex-
isting tariff.

The plaintiffs thereupon, having complied in
all respects with the provisions of section 5th of
the Act of March 8. 1857 (11 Stat, at L., 199),
entitled '* An Act reducing the duties on im-
ports, and for other purposes," brought this
action to recover back the sum so paia under
protest, as duties upon the separate value of the
barrels, within the time prescribed in said Act
for bringing the same.

Upon the foregoing facts, the question arose
whether barrels manufactured in the United
States and exported empty, and afterwards
brought back to the United States filled with
molasses, purchased in Cuba, were brought
back '*in the same condition as when export-
ed.'* according to the true intent and meaning
of the Acts of Congress in that behalf; and the
opinion of the Judges being opposed on that
question, it was certified to this court f6r de-
cision. By the Act of the 2d of March, 1799. it
is provided, that on any goods, wares or mer-
chandise, of the growth' or manufacture of the
United States, wnich may have been exported
to some foreign port or place, and brought back

See 24 How.

to the United States, and upon which no draw-
back bounty or allowance has been made, no
duty shall be demanded. 1 Stat, at Large, 662.
Among other things, the 9th section of the
Act of the 80th of August, 1842 (5 Stat at L.,
560), provides that all goods, wares and mer-
chandise, the growth, produce or manufacture of
the United States, exported to a foreign country,
and brought back to the United States, shall be
exempt from duty. Dutiable articles, and those
exempt from duty, are arranged in schedules
by the Act of the 80th of Julv, 1846 (9 Stat, at
L.. 49), and the schedule of the latter class em-
braces goods, wares and merchandise, the
growth, produce or manufacture of the United
States, exported to a foreijni country, and
brought back to the United States in the same
condition as when exported. To entitle the
article to entry free of duty.it must also appear
that it is one on which no drawback or bounty
has been allowed. It will be observed, that the
prior Acts of Congress did not require that the
goods should be brought back in tne same con-
Hition as when exported, in order to entitle the
importer to claim that they should be admitted
to entr^ as included in the free list. That lan-
guage IS retained in the Act of March 8d, 1857
(11 Stat, at L., 199), without any alteration or
amendment; so that although It may appear
that the goods were the irrowth, produce or
manufacture of the United States; that they
were exported to a foreign country, and brought
back to the United States; still, unless it also
appears they were so brought back in the same
condition as when exported, the collector of the
port is not authorized to admit them to entry,
free of duty.

Molasses barrels exported empty, when new,
to Matanzas, and there filled and. with their
contents, brought back to the United States,
cannot truly be said to be in the same condition
as when they were exported. Oftentimes, when
emptied of their contents, they are unfit for a
second voyage, and seldom or never afterwards
have the same market value as when they were
new. When filled in the foreign port, the bar-
rels have been applied to the conunercial use
for which they were manufactured; and when
shipped with their contents, brought back to
the United States, and are offered with their
contents by the importer for entry at the custom*
house, they have then, in respect to the revenue
laws of the United States, acquired a new char-
acter. For all the purposes of appraisement, with
a view to ascertain the dutiable value of the
importation, the barrels, if filled, are re^rded,
with their contents, as packages; and it is the
duty of the collector, b^ the express words of
the statute, to order one in ten of the packages
to the public store. Examination of the selected
packages is then made by the local appraisers;
and in case of appeal, the same packages are re-
quired to remain in the public store, and fre-
auentlv constitute the only attainable basis of
le subsequent adjudication by the merchant
appraiser. Such packages are ordered to the
public store in the same condition as when im-
ported, and it is not possible to doubt that Con-
gress intended to include, in the words "one in
ten of thepacki^B[es",the covering of the impor-
tations, if belonging to the merohant. as well as
the contents witliin it. Confirmation of these
I views, if any be needed, may be found in the

761

5Se-544

BuPBXlffB COUBT OV THB UlllTBD STATBab

Die. TSSK.

almost unbroken practice of the Treasury De-
partment. Take, for example, the Treasury Cir-
cular of the 26th of November, 1846, and it will
be found that it fully Justifies the conclusion to
which we have come.

By that circular the seyeral collectors were
informed that —

' * The princi pie upon which the appraisement
is bas^ is this : that the actual value of articles
on shipboard at the last place of shipment to the
United States, including all preceding expenses,
duties, costs, charges and transporation, is the
foreign value upon which the duty is to be as
sessed. The costs and charges that are to be
embraced in fixing the valuation, over and
above the value of the article at the place of
growth, production or manufacture, are —

" The transporation, shipment and tranship-
ment, with all the expenses included, from the
place of growth, production or manufacture,
whether by land or water carriage, to the vessel
in which shipment is made to the United States.
Included in these estimates is the value of Uie
sack,package, box, crate, hogshead, barrel, bale,
cask, can, and covering of all kinds, bottles,
Jars, vessels and demijohns." Mayo, Comp., 850,

Casks,including barrel8.as well as hogsheads,
exported from the United States empty, and re-
turned filled, have almost invariably, since the
passage of the Tariff Act of the SOth of July,
1846, been included among the dutiable charges,
although of American manufacture, on the
ground that, when so filled and brought back,
they were not in the same condition as when
exported, within the meaning of the provision
of that Act. Mayo, Comp., 407. That construc-
tion has been affirmed by the Treasury Depart-
ment, since the passage of the Appraisement
Act of March 8d, 1851 (9 Stat, at L., 629), as
will appear by reference to the Treasury Circu-
lar adopted shortly after its passage. By that
circular the Department declares Aatr—

"The law enjoins that there shall be added
' all costs and charges, except insurance, and
including, in every case, a charge for commis-
sions at the usual rates.' These charges are as
follows, to wit:

" They must include * purchasing, carriages,
dyeing, bleaching, dressing, flnishmg, putting
up and ^tUikiiig,togeth&r toUh the value of the
eaek, package, Sax, crate, hognhead, barrel, bale,
caek, cau, and covering of all kinds, bottles, jar$,
vessels, and dem^ohns. "

Without pursuing the discussion further,
suffice it to say, that we are all of the opinion
that the question under consideration must be
answered in the negative, and we accordingly
direct that it be certified to the court below, as
the opinion of this court, that barrels manufact-
ured in the United States, and exported empty
to Cuba, and afterwards brought back to the
United States filled with molasses purchased in
Cuba, were not brought back " in the same
condition as when exported," within the true
intent and meaning of the Acts of Congress in
that behalf.

ORDBR.

This cause came on to be heard on the tran-
script of the record from the Circuit Court of
the United States for the Southern District of
New York, and on the point or question upon

768

which the Judges of the said circuit court were
opposed in opinion, and which was certified to
this court for its opinion.agreeably to the Act of
Congress in such case made and provided, and
was argued by counsel; on consideratioii
whereof, it is the opinion of this court that bar-
rels, manufactured in the United States and ex-
ported empty to Cuba and afterwards brought
back to the United States filled with molasses
purchased in Cuba, are not brought back in the
same condition as when exported, according to
the true intent and meaning of the Acts of Con-
gress in that behalf. Whereupon,it is now here
ordered by the court that it be so certified to
the said circuit court.

ated-8 CUff.. 196, 108, 200.

PIERRE A. BERTHOLD, ALFRED C.
BERNONDY and MARBXAT THOMP-
SON, Plffs. in Br.,

EDWARD GOLDSMITH.

(See 8. C 84 How., 6aS-544.)

Partn^ership, uiKai is — participation in profits—
servant or special agent is not partner, aiihimgk
paid from proJUs---one employed to negotiate
sales, Tiot a partner.

Partnership Is a voluntary ooDtract between two
or more oompetont persons, to place their money,
offeots, lal)or and skil), or s^e one or all of them, in
lawful oommeroe or business, with the understand-
loir that there shall t>e a communion of the profltA
thereof between them.

While every partnerehip is founded on a coin*
inunity of interest, every community of intereft
does not constituto a partnership.

Whenever there is a community of interest in the
capital stock, and also a community of interest in
the profit and loss, then the case is one of actus!
partnership.

It Is seldom or never essential that both of t-bese
ingredients should concur in the case In order to
establish that relation.

Participation in th«) profits will not alone create
a partnership between the parties themselves sf
to the property, contrary to their intention.

Actual participation in the profits as principal
creates a partnership as between the partieR and
third persons, whatever nuiy be their intention tn
that behalf, and notwithstandinir the dormant part-
ner was not expected to participate in the loss be>
yond the amount of the profits.

Actual partnership, as between a creditor and
the dormant partner, is considered by the law to
subsist where there has been a particination in the

Srofits, although the participant may haveexpres-
stipuiated with his associates against all thensn-
inoidents to that relation.

That rule, however, has no application whatever
to a case of service or special agency, where the
employ^ has no power as a partner in the firm sod
no Interest in the profits, as property, but issimplr
employed as a servant or special agent, and is to
receive a given sum out of the profits, or a propor-
tion of Uie same, as compensation for hk aerr.
ices.

Unless the supposed dormant partner is in some
way interested in the profits of the business, a»
principal, he cannot bring suit as a partner.

Where one employed by a partnership to Dfgo>
tiate sales had no interest in the property, and Is
WAS to remain for sale in the custody and oontroi
of commission merchants who stood responsibto
for the proceeds, and he did not rely upon tbeDro(>
its for his compensation, although ne was to have
one half the profits with a guaranty of $1,800 a year,
he was not a partner.

NOTS.— -Partfiersh^; when a eommunUy of pntjtt9
creates a partnenhip, erteptions. 8oe now to Ward
V. Thompson, 68 U. S., infhh iM9.

n r.8.

1860.

Bebtbold y. Goldsmith.

m-fm

Argued Feb, 28, 1861, Decided Mar, 14, 1£€1,

IN ERROR to the Circuit Court of tlie United
States for the District of Missouri.

This was an action of aasumpsit, brought in
the court bellow by Gk>ldsmith, the present de<
fendant in error.

Judffment was rendered for the plaintiff, and
the defendants brought the case to this court
by writ of error.

The case further appears in the opinion of
the court.

Mr, M. Blair* for the plaintiffs in error.

Mesere. Badfl^r & Carlislet for defend-
ant in error.

Mr. Justiee Clifford delivered the opinion of
the court:

This is a writ of error to the Circuit Court of
the United States for the District of Missouri.
The declaration in this case was filed on the
2d day of September, 1858. by the present de-
fendant, who was the plaintiff in the court be-
low. It was an action of aseumpeU, and the
declaration contained five counts. Without
attempting to give anv very precise analysis of
the declaration, it will be sufficient to say that
the plaintiff alleged, that on the 29th day of
August, 1857, at the special instance and request
of the defendants,he sent and consigned to them
sundry cases and boxes of cigars ofgreat value,
in order that they might sell and dispose of the
same for him, on their guaranty of sales, for a
certain commission or reward, and that the de-
fendants, in consideration thereof, undertook,
and then and there promised,to sell and dispose
of the ci^rs on his account, and to be answer-
able to him for the due payment of the sums
for which the same should be sold, and pay
over the proceeds to him. And the complaint
is, that they not only neglected and refuMMi to
perform their promises in that behalf, but that
they disposed of the consignment to their own
use. Defendants appeared and demurred to the
declaration, but the court overruled the demur-
rer, and the parties subsequently went to trial up-
on the general issue. Testimony was introduced
on both sides, and after the arguments were
closed, the defendants presented to the court cer-
tain prayers for Instruction, which were refused.
And under the instructions given by the court,
the juiy returned their verdict in favor of the
plaintiff for the sum of |;8,000. Exceptions
were dulv taken by the defendants, not only
to the refusal of the court to instruct the Jury
as requested, but also to the instructions given,
and the question to be decided is, whether,
upon the facts disclosed in the record, there
was any error in the action of the court. It
appears from the evidence that the plaintiff
was a merchant, residing at Baltimore, in the
State of Maryland, ana that the defendants
were commission merchants, doing business at
St. Louis in the State of Missouri. For the
purposes of this investigation, it is conceded
that the cigars were sent by the plaintiff, and
that they were duly received by the defendants,
and there is no dispute as to the quantity or
their value. Some of the cilars were forwaraed
by railroad, but the largest invoice was shipped,
in bond, with the understanding that the de-
fendants would make the necessary advances

See 24 How.

for the duties and other charges. Accordingly,
they received the cases and boxes containing
the cigars at the custom-house, and paid ^e
duties and freight. All of the cigars were sent
and received under the terms and conditions
specified in a certain letter from the plaintiff
to the defendants, to jvhich more particular
reference will presently be made. Prior to the
date of that letter, it had been agreed between
the plaintiff and one H. F. Hook, that the lat-
ter should go to St. Louis, and if practicable,
make an arrangement there with some respon-
sible commission house to accept consignments
of cigars from the plaintiff, and sell and dis-
pose of them on his account. It seems that
Hook wanted employment, and the plaintiff
wanted to extend his business. They accord-
ingly agreed to make an effort of that kind,
and if successful, that Hook should have half
the profits, with a guaranty from the plaintiff
that his compensation should amount to $1,800.
Pursuant to that understanding, Hook went to
St. Louis and made an arrangement with the
defendants, and communicate the terms and
conditions of it to the plaintiff. By the terms
of this arrangement, tne defendants were to
sell for a commission of two and a half per
cent, and were to guaranty the sales for a like
commission. They were to receive the goods
in bond, at the custom-house, make the neces-
sary advances for duties and charges, and ac-
cept drafts drawn by the plaintifiT against the
consignments. Having learned the i&ature of
the proffered terms, the plaintiff, .on the 28th
day of August, 1857, wrote to the defendants,
the letter to which reference has already been
made. Referring in express terms to that ar-
rangement, he informed the defendants by that
letter that he had consigned to them an invoice
of cigars, and requestea them to render to him,
when the cigars were sold, an account of the
sales; and Tniat is more, he therein stated to
the defendants that if they were willing to
make advances on such goods, he would con-
sign to them, in a short time, additional in-
voices to a large amount; and in conclusion,
employed the following language : * 'AH shipped
to your house by me; I will hold you responsi-
ble." Full proof is exhibited in the record,
that all the cigars in controversy were sent and
received under the arrangement referred to in
that letter, and the person who made the arrange-
ment with the defendants testified that it was
never changed. He remained in St. Louis to ne-
gotiate sales, and he also testified that he managed
Uie whole business and conducted the corre-
spondence with the plaintiff. Defendants dis-
solved their partnership on the 1st dav of Janu-
ary, 1858, 80 that it became desirable for them to
get rid of their consignments ; and on the 16th day
of the same month, all of the cigars not previous-
ly sold were turned over to another firm, pursu-
ant to an order drawn on them by the person
who negotiated the arrangement. That step
was taken without consultmg the plaintiff, ana
without his knowledge, and ten days later the
defendants wrote to the plaintiff and declined
to render an account of sales, affirming that
they had made none, and assuming, in effect,
that the person who negotiated the arrange-
ment was the general agent of the plidntiff with
respect to the cigars; and they informed the
plaintiff, in the same letter, that he, the sup-

768

58(^544

SUFRBMB Ck>l7RT OF THB UinTBD STAT88.

Dbc. Tevx,

posed agent, on withdrawing the consignment,
nad paid back to them, what money thev had
advanced on the same, Much other testimony
was introducd on the one side or the other,
but the statement already given exhibits the
material facts necessary to be considered in this
stage of the investigation.

Two theories were assumed by the defend-
ants at the trial, and the prayers for instruc-
tion were all based upon the one or the other
of those theories. It was insisted, in the first
place, that the person who negotiated the ar-
rangement and finally withdrew the consign-
ment, was a partner with the plainti£P in the
whole transaction; and if not; then, second,
that he was the agent of the plaintiff and, as
such, had authoritv to withdraw the consign-
ment and acquit the defendants from all fur-
ther responsibility. But the presiding justices
instructed the jury,in substance and effect, that
the defendants were responsible for the cigars
consigned under the letter of instructions,
whether sold directly by themselves as factors
of the plaintiff, or by Hook, as authorized to
nejsotiate sales, provided the cigars were re-
ceived into their possession ; that the defendants
were authorized by the letter to sell the cigars
in the usual course of business, and if Uiey
found that Hook was also authorized to ne-
gotiate sales, then the sales by him in the
usual way were also valid, and that the defend-
ants, by the letter, were to make the advances,
have two' and a half per cent, commissions on
sales, and twp and a half per cent, on guaranty
of sales, and were to account to the plaintiff.
Amonff other things, they also instructed the
Jurv, that there was no evidence to show any
authority from the plaintiff to turn the cigars
over to an auctioneer to be sold, and that the
plaintiff, therefore, was entitled to recover the
net proceeds of the cigars sold, either by the
defendant or Hook, if the latter was authorized
to negotiate sales, and the market value at St.
Louis of the residue, less the charges paid for
freight, storage, insurance, dray age and duties.
Both of the defenses set up in the court below
are still insisted upon in this court, but we
think neither of them can be sustained, and
that the instructions given to the Jury were
correct

1 . Partnership is usually defl ned to be a volun-
tary contract between two or more competent
persons, to place their money, effects, labor and
skill, or some one or all of them, in lawful
commerce or business, with the understanding
that there shall be a communion of the profits
thereof between them. But partnership and
community of interest, independently consid-
ered, are not always the same thing; for the
first, as between the partners themselves, is
founded upon the copartnership agreement
which prescribes the relation they bear to each
other, and of itself creates the community of
interest; but the last may exist, notwithstanding
there has been no agreement between the par-
ties. Part owners of a ship, for example, are
uniformly treated as tenants in common, and
not as partners, although it cannot be denied
that there is a community of interest between
them in every part of the vessel, and each
is entitled to a share of her earnings in pro-
portion to his undivided interest, and must
also share the loss. Joint owners of merchandise

764

may consign it for sale abroad to the same con-
signee; and if each gives separate instmctioas
for his own share, it is well settled law tiiat
these interests are several, and that they are not
to be treated as partners in the adventure. Nu-
merous illustrations of the principle are to be
found in the decisions of the courts, of which
we will give but one more at the present time.
Where a broker or other agent purchases gnod^
for several persons, each agreeing to take a cer-
tain portion of the entire parcel, it is clear, if
there is no arrangement that the goods shall be
sold on joint account, that the transaction does
not amount to a partnership although there it«,
undeniab]y,a community of interest in thegoods
so purchased. These examples will be sumclen t
to show that while every partnership is founded
on a community of interest, it is, nevertheless,
incorrect to suppose that every community of
interest necessarily constitutes the relation of
partnership within the meaning of the commer-
cial law. Whenever it appears that there is a
community of interest in the capital stock, and
also a community of interest in the profit and
loss, then it is clear that the case is one of actual
partnership between tjie parties themselves and,
of course, it is so as to third persons. All of
the decided cases, however, agree that it is sel-
dom or never essential that both of these ingre-
dients should concur in the case in order to
establish that relation. Cases occur, undoubt-
edly, where a community of interest in the
property, without any regskrd to the profits, will
almost necessarily lead to the conclusion that
the relation between the parties was that of
partnership; and, under some circumstances,
that conclusion will follow, although the sale
of the propertv for the joint interest may not be
contemplated by the parties. On the other hand,
it is equally clear that there may be such a com-
munity of interest in the profits, without regard
to loss, and without any community of interest
whatever in the proi)erty, as will establish that
relation. Participation in the profits, however,
will not alone create a partnership between the
parties themselves as to the property, con-
trarv to their intention. But merchants and
traders are often justly held to be partners as to
third persons, where they are not to be deemed
such, expressly or impliedly, as between them-
selves. Judge Stor^ distributes the cases in
which a liability exists as to Uiird persons into
five classes, and it is obvious that the pres-
ent case does not fall within any principle
of that classification. Story, Part., sec. b^\
Greenl. Ev., sec. 483. He admits, however,
that the pressure of the general doctrine is most
severely felt in that class of cases where all the
parties charged, as partners,are to share the prof-
its between them, but the losses are to be borne
exclusively by one of their number. Actual par-
ticipation in the profits as principal, we think,
creates a partnership as between the parties and
third persons, whatever may be their intentions
in that behalf, and notwithstanding the dor-
mant partner was not expected to participate
in the loss beyond the amount of the profits.
Every man who has a share of the profits of a
trade or business ought also to bear his share of
the loss, for the reason, that in taking a part of
the profits, he takes a part of the fund of the
trade on which the creoitor relies f or pay meot.
Qraoe v. Smith, 2 W. Bl, 996; Wa^ v.

1860

Wbbbleb t. Nebbitt.

544-558

Garter, 2 H. Bl, 285. Actual partnerahip. as
between a creditor and the dormant partner, is
considered by the law to subsist where there
has been a participation in the profits, although
the participant may have expressly stipulated
with his associates against all the usual inci-
dents to,that relation. Borkd v. Pittard, 8 Mees.
& W., 857. That rule, however, has no appli-
cation whatever to a case of service or special
agency, where the employe has no power as a
partner in the Arm and no interest m the prof-
its, as property, but is simply employed as a
servant or special agent, and is to receive a
given sum out of the profits, or a proportion of
the same, as a compensation for his services.

Merchants are obliged to have clerks, and
oftentimes find it necessary to emplov brokers
or special agents to effect sales, and it iis no more
detrimental to their creditors that such employ-
es should be paid out of the profits of their
trade than from any other source of income
within their disposal. Unless the supposed dor-
mant partner is in some way interested in the
profits of the business, as principal, it is plain
that he cannot bring suit as a partner, and go
into equity and compel an account; nor can it
be held that he has any such lien on the profits
as a court ef equity may enforce; and if not,
then his condition is the same as that of an or-
dinary creditor, and he must pursue his remedy
aeainst his employer. Denny et al. v. Cabot et
cU. , 6 Met., 90; Vanderburgh v. HvU, 20 Wend.,
70. Repeated decisions have recognized this
distinction, and although it may happen, as here
tof ore, that cases will arise on the one side or
the other of the line, approaching in their facts
so near to each other that the difference between
them may appear to be unsubstantial, yet the
distinction itself, we think, is well founded in
reason, and that the only difficulty is in the ap-
plication of the principle on which it rests.
IlaUet V. Jkiban, 14 La. Ann.. 585.

No such difficulty, however, arises in this
case. Defendants knew the exact relation
which Hook sustained to them and to the plaint-
iff, and they had the letter of the plaintiff in
their possession, informing them that he should
hold them responsible for the cigars. They
knew what the arrangement was, and that the
goods had been sent by the plaintiff and re-
ceived by them, on the terms and conditions
specified in that letter. Irrespective of the guar-
anty, it is difficult to see how Hook could have
any interest in the profits as a partner with the
plaintiff. He had no interest m the property,
and by the arrangement which he himself ne-
gotiated, the cigars were to remain for sale in
the custody and control of the defendants, as
commission merchants, and they stood respon-
sible to the plaintiff for the proceeds. But
he did not rely upon the profits for his com-
pensation, for unless one half the profits ex-
ceeded $1,800 a year, he would neither be ben-
efited nor injured by the success or failure of
the adventure, except so far as the latter result
might have a tendency to induce his em-
ployer to dispense with his services. Little or
nothiUj^ was ever realized from the enterprise
and, of course, no excess of profits over the
• amount of the guaranty was ever earned. It is
quite obvious, therefore, that the theory of the
defendants on this branch of the case cannot be
sustained.

See 24 Uow.

2. It is insisted by the defendants that Hook
was the agent of the plaintiff and, as such, that he
had authority to withdraw the cigars from their
custodv and control, and turn them over to the
other firm. On that point, the presiding justice
instructed the jury that there was no evidence
in the case to support that theory, and, after a
careful examination of the evidence exhibited
in the transcript, we entirely concur in that
view of the case ; and the judgment of the evreuU
court is, therefore, affirmed, toith costs.

Clted-^76 U. 8. (8 Wall.), 215 ; 2 Sawy., 297 : 7 Bank.
Reff., 871 ; 2 FUppin, 464; 8 Cliff., 305: 68 lud., 881 ; 16
Am. Rep., 227, 206 (68 N. H., 276) ; 22 Am. Rep., 889
(28 Ohio, 281.)

JOHN J. WHEELER, Plff, in Er.,

ANDREW J. NE8BITT, JEROME CARD-
ING, FREDERICK BINKLEY, JAMES
D. TRIMBLE, WILSON J. MATHIS and
ROBERT McNEELY.

(See 8. C, 24 How., 544-668.)

Proof necessary in action for maUeiofis prosecu-
tion— charge unfounded — toant of probable
cause — malice — may be proved by drcum-
stances— onus prohandi is on plaintiff— what
is probable cause— question of fact — detention
of plaintiff in prison, which is restUt of his
own request for delay, and of his neglect to give
security, is no ground of complaint.

To support an action for a malicious criminal
proBecutlon the plaintiff must prove, in the first

?)laoe, the fact of prosecution, and tbat the do-
endant was himself the prosecutor, or tbat he In-
stiirated its commencement, and that it finally ter-
minated in acquittal.

He must also prove tbat the charge preferred
against him was unfounded, and that it was made
witbout reasonable or probable cause, and that the
defendant, in making or Instigating It, was actu-
ated by malice.

Tbe Durden of proof in the first Instance is upon
the plaintiff to make out his case, and if be fails to
do so in any one of these particulars, the defendant
has no occasion to offer any evidence in his de-
fense.

Malice alone is not sufBcient'to sustain the action;
because a person actuated by tbe plainest malice
may, nevertheless, prefer a well-founded accusa-
tion, and have a justifiable reason for the prosecu-
tion of the charge.

Want of reasonable and probable cause is as
much an element in tbe action as the evil motive,
and though the averment is a negative one It must
be proved by the plaintiff by some affirmative evi-
dence, unless the defendant dispenses with such
proof by pleading singly the truth of the several
facts involved in the charge.

Either of these allegations may be proved by
circumstances.

NoTX.— MoUefnus proseeution^-aetion for causing
a erimindl proMcution.

. An action on tbe case lies for a false and malicious
prosecution for any crime, whether capital or not,
by which the party may be put in peril of his life,
suffer in his liberty, reputation or property:
whether tbe prosecutor proceed so far as actually
to exhibit an indictment on which the party was
acquitted, or not. Roll. Abr., 112 ; Churchill v. dig-
gers, 8 El. & B., 087.

It must appear that the motive for prosecuting
the original action, whether civil or criminal, was
malicious, and the action without protmble cause.
Cro. Eliz., 70, 134; Leon., 107; Kolw., 81 ; Moo., 600 ;

7tt6

544-558

BupmsMS CouBT OF THB Utxtcmd Statbs.

Dice. Tbex*

Want of probable cause to evidence of malioe, but
it is not the same thing ; and unless It is shown that
both concurred in the prosecution, or that the one
was combined with the other in making or instiga-
ting the charge, the plalntilf is not entitled to re-
cover in an action of this description.

The plaintiff must show that the defendant acted
from malicious motives in prosecuting him« and
that he had no sufficient reason to believe him to
be guilty. If either of these be wanting, the action
must fall.

Want of probable cause is evidence of malioe for
the consideration of the jury ; but the converse of
the proposition cannot be sustained.

The ontuprobandi is upon the plaintiff to prove
afflrmatively, by circumstances or otherwise, as he
may be able, that the defendant had no reasonable
ground for commencing the prosecution.

Probable cause is the existence of such facts and
circumstances as would excite the belief, in a rea-
sonable mind, acting on the facts within the know-
ledge of the pro8ecutor,that the person charged was
guilty of the crime for which he was prosecuted.

Whether the prosecution was or was not com-
menced from malicious, motives, is a question of
facts, and it is for the Jury to determine whether
the inference of malice Is a reasonable one from
the facts assumed in the instruction.

If there was probable cause for the arrest of the
defendant,he can be lawfully detained a reasonable
time till the warrant was Issued and executed.

Where plaintiff was detained in prison for the
space of seven days, as the necessary consequence
of his own request for delay, and the neglect on his
part to offer any satisfactory securityf or bis appear*
ance at the time appointed for the examination ;
held, no grouAd of complaint.

Arffued Feb, £5, 1861. Decided Mar, U, 1861.

N ERROR to the Circuit Court of the Unit-
ed States for the Middle District of Ten-
nessee.

This was an action of trespass on the case
commenced by Wheeler, the present plaintiff
in error, in the court below, against the present
defendants in error, for false imprisonment.

The trial resulted in a verdict and Judgment
for the defendants, and the plaintiff brought the
case to this court by writ of error.

It appears that the plaintiff was arrested on a
charge of horse stealing; that the only grounds
of suspicion against him were that he, in com-
any with two companions, Irishmen, were
bund to have in their possession four fine
horses ; that both he and his companions were
indifferently clad, and were all strangers in
that locality. The fact was that these horses
belonged to Wheeler, and that he merely per-

mitted the two Irishmen to ride one each, as
they happened to be going in the same direction
as himself.

The case further appears in the opinion of
the court.

Mr. W. L. Underwood* for plaintiff in
error:

The gravamen of the plaintiff's complamt
against the defendants, is, first, that they con-
spired ; second, in a malicious prosecution; third,
whereby he was falsely imprisoned.

As to the first point, counsel cited Bouv. L.
Diet., tit. Conspiracy; Bex r. Rupal, 8 Burr..
1320; Chit. Cr. L., 1142; 2 Stark. £y., 401.
403; 8 Chit. Cr. L., 1189, 1143.

2. The gravamen of the action is. that the
plaintiff has improperly been made the subject
of legal process, to his damage.

2 Greenl. £v.. 99.

There are two grounds necessary to supped
an action for malicious prosecution — nmlioe and
the want of probable cause. The latter is the
gist of the action.

Morgan v. Bughee, 2 T. R, 225.

Malice is not to be considered in the sense of
hate or spite against an individual. Want of
oaution, in occasioning injury to others, is suf-
ficient.

See 2 Greenl. Ev., 453; BrookiY. Warwick^ t
Stark. ; BouY. L. Die, tit Malice; 1 Camp..
200, note a; Sutton v. Johnstone, 1 T. R., 49.1

Acquitted by the magistrate is prnna fade
evidence of want of probable cause.

2 GreenL, 455; WiUiame v. Noi-wood, 2 Yerg .
8-^9; Hickman v. Oriffln, 6 Mo., 87; Merriam v.
MUeheU, 18 Me., 489.

Suspicion and conjecture do not amount to
probable cause.

Stone V. Stevenif 12 Conn., 219; Holbum t.
Neal, 4 Dana, 128.

The charge of the court below was erroneous
under the above authorities.

Mr. P, Phillipst for the defendant in error.

The plaintiff must show that the defendant
acted from malicious motives, and that he had
no sufficient reason to believe him to be ^ilty.
If either be wanting, the action must faiL

JohmUme v. SuUon, 1 T. R.. 544; MilcheU r.
Jenkins, 5 Bam. & Ad., 594; Herman v. Brook.

Dan v., 212; Salk., 15: Ck>ok v. WaUEer.dO Ga., 519;
Dickinson v. Maynard, 80 La. Ann., 06; Heyne v.
Blair, 62 N. 7.. 19 ; Medcalf v. Brook, h. Ins. Ck>., 45
Md., 198 ; Burrls v. North, 64 Mo., 426 : Scott v Shel-
or, 28 Oratt., 801 ; Glaze v. Whitley, 5 Oregon, 164 ;
Willis V. Knox, 5 So. Gar., 474 ; Harkrader v. Moore,
44 0al., 144; Dletz v. Lanffflttj^eS Pa. St., 234: Bur-
nap V. Albert, Taney, 244; 4 Burr., 1974; 1 Mason,
24 : Stew. Adm., 115 ; Cotton v. James, 1 Bam. & Ad.,
133; Besson v. Southard, 10 N. Y.« 286; Ganea v.
Southern Pac. R. R. Co., 51 Cal., 140.

It must also appear. In every case, that the orig-
inal suit l8 ended, and that It terminated In favor of
the defendant In the original suit, either bv acquit-
tal, abandonment or final Judjrment In his favor,
before the commencement of the action for mali-
cious prosecution; otherwise the point would
come to be tried too soon and disorderly. Doug.,
205; Tel v., 117 : 2 Term, 225 : Str., 114; Hob., 114 ; 10
Mod., 245 ; W. Jones, 96 ; Sinclair v. Eldred, 4 Taunt.,
7 ; O'Brien v. Barry, 106 Mass., 800 ; Brown v. Ran-
dall, 86 Conn., 66 : Cardlval v. Smith, 109 Mass., 166 ;
Hall V. Fisher, 20 Barb., 441 ; Hamllburvh v. Shep-
ard, 119 Mass., 80; Gillespie v. Hudson, II Kan^ 163 ;
Feltt V. Davis, 49 Vt., 151 ; Batoheldor v. Frank, 49
Vt., 90; HibbinR v. Hyde, 50 Cal., 206; Moulton v.
Beecher, 1 Abb. N. C, 192; 52 How. Pr.. 182.

A noUe proMoui by the Attorney-General is not
such a termination of a criminal suit as will author-
Iso an action. An acquittal must be shown. Find-

766

ing of an indictment is some evidence of probable
cause. 6 Mod.. 261; 10 Mod., 210 ; Gilb. Caa.« 185: Cte-
dlval V. Smith, 100 Mass., 158 : Bacon v. Towne. 4
Cush., 217; Parker v. Farlry, lO Cush., 279; Bacon
V. Waters, 2 Alien, 400; Bull. N. P., 14; Drin* v.
Burton, 44 Vt., 124 ; see eoiilra, Moulton v. Beecher,
1 Abb. N. C, 108; 62 How. Pr.,^182; Chapman v.
Woodf , 6 Blackf ., 504 ; Yocum v. Polly, 1 B. Moo.
858 ; Rlchter v. Koster, 45 led., 440; Rice v. Ponder.
7 Ired., 300; Brown v. Randall, 88 Conn., 66 ; 4 Am.
Rep., S6.

Where the complainant withdraws the proseco-
tlon, and the accused is thereupon dlscliarffed«or ctw
mairlstrate discharges on examination, or Che gnni
jury fall to find an indictment, or the prosccutiii^
attorney discharges without the action of the grand
Jury, it is equivalent to an aoqulttalt and is a Hifll-
dent termination of the suit. wlUial&B v. Norwood

2 Tergr.* 829: Johnson v. Martin, 8 Mufi||k, Si^;
Sayles v. Brigvs, 4 Met., 421 ; Cardlval ▼. SmiUu V^
Mass., 158; 8. C., 12 Am. Rep., 682: Brown x. IUb>

dall, 86 Conn., 56; 4 Adq. Rep., 35; Drigya v. Burton.
44 Vt., 124: Secor v. Baboock, 2 Johns., 208; Joof^
V. Givin, OUb., 185, 220; Monran v. Huirbns 2 Tens.
225 : Freeman v. Arkell. 2 B. A C, 494 : Mitchell r.
Williams. 11 M. & W., 205 ; Bacon v. Waters, 2 Alkn.
400; Schoonover v. Myers, 28 HI., 308.

It has been held that a verdict on the merits to not
necewary ; a dismissal or abandonment of a criraw
nal prosecution before trial is a sufficient tennlui»-

6S r.&

1660.

WhKBLBB Y. NjEABiTT.

544-^968

erhoff, 8 Watts, 241 : Bvaing y. 8anfnrd, 10
Ala., 616.

Probable cause is a reasonable ground of sus-
picion, supported by circumstances sufficiently
strong in themselves to warrant a cautious man
in the belief tliat tlie accused is guilty of the
offense with which he is charged.

MunM V. Dupont, 8 Wash., G. C, 81; ^
shay y. FergvMn, 2 Den., 617.

So that, although the plaintiff is entirely in-
nocent, if the defendant shows that he has rea-
sonable grounds for belieymg him guilty at the
time the charge was made, the action cannot
be sustained.

HaU y . Suydam, 6 Barb. , 86 ; James y . Phslps,
11 Adol. ^^ £., 489; Braughton y. BMnstm, 11
Ala., 922.

While malice in this form of action is not to
be limited to " spite or hatred," it must consist
in the " malus animus" as denoting that the
party is actuated by improper and indirect mo>
liyes.

MUelieU y. Jenkins, 6 Barn. & Ad., 694; see,
also. 12 Mod., 208; 10 Mod., 217, 4 Bam. &
C.,26.

Mr. JutiUce Clifford deliyered the opbiion of
the court:

This is a writ of error to the Circuit Court of
the United States for the Middle District of
Tennessee. John J. Wheeler, the plaintiff in
error, complained in the court below against
the present defendants, in a plea of tresspass on
the case, as will more fullyappear by reference
to the declaration which is set forth at large in
the transcript. It alleged three distinct causes
of action, and each cause of action was set
forth in two separate counts. All of the counts,
howeyer, were founded upon the same trans-
action, so that a brief reference to the first,
third and fifth of the series will be sufficient to
exhibit the substance of the declaration, and
the nature of the supposed grieyances for which
the suit was instituted. First, the plaintiff
alleged that the defendants, falsely and mali-
ciously contriying and intending to injure him
in his good name and reputation, on the 18th
day of September, 1856, at a certain place within
the jurisdiction of the court below, went before

a certain Justice of the peace for that county,
and falsely and maliciously, and without any
reasonable or probable cause, charged the
plaintiff with haying feloniously stolen four
horses, which he then and there had in his
possession, and caused and procured the
magistrate to grant a warrant, under his hand
and seal, for ue apprehension of the plaintiff,
upon that false, malicious and groundless
charge; and that he, the plaintiff, was accord-
ingly arrested by yirtue of the warrant so pro-
cured, and falsely and maliciously, and with-
out any reasonable or probable cause, im-
prisoned in the prison house of the State there
situate, for the spade of seyen days; and that at
the expiration of that period he was fully ac-
quitted and discharged of the supposed oflSense,
and that the prosecution for the same was
wholly ended and determined. Second, the
plaintiff alleged that the defendants, on the
same day and at the same place, with force and
arms assaulted him, the plaintiff, and forced
and compelled him to go to the prison house of
the State there situate, and then and there
falsely and maliciously, and without any
reasonable or probable cause, imprisoned him
for the space of seyen days, contrary to the
laws and customs of the State. Third, the
plaintiff alleged that the defendants, on the
same day and at the same place, did unlaw-
fully and falsely conspire, combine and agree
among themselyes and with others, that the
first named defendant, with a yiew to procure
a warrant for the arrest and imprisonment of
the plaintiff, should go before a certain ma^s-
trate of the county, and make oath, according
to law, that he, the complainant, yerily be-
lieyed that the plaintiff, with two other persons,
had committed the aforesaid offense, and that
the other defendants in this suit should attend
the preliminary examination of the plaintiff be-
fore the magistrate, and then and there aid
abet, and assist the complainant, by their tes-
timony, infiuence and adyice, in prosecuting
the charge; and the plaintiff ayerred that the
defendants so far carried their corrupt and
eyil conspiracy and agreement into effect, that
they procured the warrant from the magistrate
by the means contemplated, and that he, the

tion of the proseoution (Kelley y. Sage, 12 Kan^
109; MoWiUiams y, Hohan, 42 Md.. 66: Gilbert y.
Kmmons, 42 111., 148; Fay y. O'Neill, 86 N. Y., 11:
Leever v. Hamill. 57 tad., 428): so is the quashlDg of
an iodiotment and discbarffe of defendant. Hays y.
Blizzard, 80 Ind., 457 ; disobarare on habeas corpiw,
after oommitment by Ju8tloe,is not. Walker v. Mar-
tin, 48 HI., 506; Swartwout v. Dickelman, 12 Hun,
858.

The Insufflcienoy of the indictment is no defense,
nor its rejection by the grand Jury. Stanclllf v. Pal-
meter, 18 Ind., 821 ; Jones y. Gwin, 10 Mod., 148, 214 ;
Plppet y. Heam, 5 Bam. ft A., 684; Hhaul y. Brown,
28 Iowa, 87 ; Cbaml)ers v. Kobinson, 2 8tr., 601 ; Wioks
V. Fentham, 4 Term, 247.

The action lies if some of the charges in the in-
dictment are maliciously preferred, though others
are not. Ueed v. Taylor, 4 Taunt., 616.

Tbe action lies for knowingly procuring the in-
dictment of a person for an act not a crime (Den-
nis y. Ryan, 5 Lans., 850; 63 Barb., 145: 657^. T.,886);
or falsely and maliciously accusing of, and procur-
ing arrest and indictment of anotber for, an act
believed to be a crime (Shaul v. Brown, 28 Iowa,
37 ; 1 Am. Lead. Gas., 281 ; Anderson v. Buchanan,
Wrlgbt, 726; Farlle v. Danks, 2 Bng. L. & E., 115;
Strelgbt y. Bell, 37 Ind., 650; CoUins y. Love, 7
Blackf., 416: Barton v. Kavanaugh, 12 La. Ann.,
332); or lalsely and malioloueily prosecuting before a
court which has no jurisdiction of the crime. Mor-
tice 24 ilow.

ris y. Scott, 21 Wend., 281; Sweet y. Negus, 80
Mich., 406 ; Stone v. Stevens, 12 Conn., 219 ; Hays v.
Tounglove, 7 B. Mon., 545 ; contra^ Painter v. lyes,
4 Neb., 122 ; Turpln y. Remy, 8 Blackf., 210.

Making a true statement in good faith, through
which a person is prosecuted or indicted, will not
support an action for malicious prosecution, al-
though tbe facts stated constitute no crime. Dennis
v. Ryan, 65 N. T., 885; Bennett v. Black, 1 Stew.,
484; Wyatt v. White, 5 H. & N., 871: McNeely v.
Driskill, 2 Blackf., 260; Leigh y. Webb, 8 Esp., 165.

In case of a conviction, the action will not lie. un-
less the conviction was procured unfairly. Whit-
ney y. Peokham, 15 Mass., 248: Com. v. Davis, 11
Pick., 848: Miller v. Deere, 2 Abb. Pr., 1 ; Monroe v.
Maples, 1 Boot., 554; Cloon v. Oerry, 18 Oray, 201 :
Rosenstein v. Brown, 7 Phil., 144 ; Basher v. Mat-
thews, L. B. 2 C. P.. 684: Hibbing v. HydOi 50 Cal.,
206 : GriiBs y. Pellars, 2 Dev. ft Bat., 4fl2 ; PMttter v.
Avery, 41 Barb., 200; Witham v. Gowen, 14 Me., 86$;
Payson v. Caswell, 22 Me., 226: Burt v. Place, 4
Wend., 691.

An action will lie for procuring another to bring
a malicious criminal prosecution, or voluntarily
participating in such a prosecution, or for com-
mencing one in good faith, and prosecuting after
rddtive knowledge of innocence. Mowry v. Mtiler,
Leigh, 561 : Perdu v. Connerly, 1 Rice, 49 ; Stan-
burry v. Fogle, 87 Md., 860; Fit:^ohn v. Mackinder,
9 C. B., N. 8., 505 ; 80 L. J., C. P., 264.

544-558

SUFHBMB COUBT OP THB UnITBD StATBS.

D£C. TftRM.

plaintiff, was then and there arrested by virtue
of the same, and imprisoned upon that false,
malicious, and groundless accusation, for the
space of seven days, and that at the expiration
of that period he was fully acquitted and dis-
charged of the^supposed offense. Such is the sub-
stance of the 'declaration, so far as it is deemed
material to reproduce it at the present time.
Testimony was introduced by the plaintiff
tending to show that he was the lawful owner
of the four horses described in the warrant on
which he was arrested ; and he also proved,
without objection, that he had always sustained
a good character in the neighborhood where
he resided. He also introd uced a dul^ certified
copy of the complaint made against him b)r the
first named defendant, and a duly certified
copy of the warrant issued by the magistrate.
Those copies show that the complainant, on
the 18th daj of August, 1856, made the accu-
sation under oath, as required by the law of the
the State, and that the magistrate thereupon
granted the warrant for the apprehension of the
plaintiff, together with two other persons, who
were jointly accused with him of the same
offense. Both the complaint and warrant were
in regular form, and the latter contained the
usual directions, that the persons accused should
forthwith be brought before the magistrate
who issued it, or some other justice of the peace
for the county, to answer to the charge, and be
dealt with as the law directed. Whether the
officer made any formal return on the precept
or not does not appear ; but it is stated in the bill
of exceptions, that the warrant was placed in
the hands of the sheriff, and that the persons
accused of the offense, including the plaintiff,
were on the same day brought before the
magistrate for trial. When brought into court
they were not prepared for the examination,
and at their request the trial was postponed for
twelve days, or until they should have sufficient
time to procure the attendance of certain wit-
nesses, whose testimony was necessary, as they
represented, to establish their defense; and the
mmutes of the proceedings before the magis-
trate, state, in effect, that the acccused, " not
being able to give any securitv for their ap-
pearance " at the time appointed for the trial,
* ' or not offering to give any, the sheriff was
directed to hold them in custody to answer to
the charge." Pursuant to that order the
plaintiff, as well as the other persons accused,
remained in the custody of the sheriff, and
were kept by him in the prison house of the
State there situate until the witnesses of the
plaintiff appeared; and on the 25th day of Sep-
tember, 1856, there were again brought before
the magistrate, and after the witnesses on both
sides were examined, all of the accused were
fully acquitted and discharged of the alleged
offense. To show that the prosecution was
groundless, and without any reasonable or
probable cause, the plaintiff examined several
witnesses, to prove the circumstances under
which he was arrested, and the substance of
the evidence adduced against him at the trial
before the magistrate. One of the defendants
is the magistrate who granted the warrant, and
the other defendants were witnesses for the
State in the criminal prosecution. All of the
defendants were citizens of the State of Ten-
necsee, and the plaintiff was a citizen of the

768

State of Kentucky, and it did not appear that
the parties had any acquaintance with each
other prior to this transaction. No attempt
was made on the part of the pUintiff to prove
express malice, and there was no direct evi-
dence of any kind to support the allegatioii of
conspiracy. On the oUier hand, the defend-
ants insisted that there was no evidence to sup-
I>ort the charge of conspiracy or of false im-
prisonment, and that the proeecution was in-
stituted in good faith, and conducted through-
out upon reasonable and probable cause; and
to establish that defense they called and ex-
amined several witnesses to prove what the
evidence was which was given against the
plaintiff at the trial before the magistrate. With-
out entering into particulars, it will be sufficient
to say, that the evidence adduced by the defend-
ants had some tendency to maintain the defense.
Under the rulings and instructions of theooort
the Jury return^ their verdict in favor of tlie
defendants, and the plaintiff excepted to the
charge of the court. Unaided by the assign-
ment of errors, it would be difficult to ascertain,
with any degree of certainty, to what particular
part of the charge of the court the exoepiions
were intended to apply. But that difficulty is
so far obviated by the specifications contained
in the printed argument filed for the plaintiff,
that, with some hesitation, we have concluded
that the case, as presented in the transcript, is
one which may be re examined in this court.

1. Among other things, the presiding jus-
tice instructed the jury, that in order to excuse
the defendants on the first two counts in the
declaration, it must appear that they had proba-
ble cause for the prosecution of the plaintiff
for the offense described in the complaint and
warrant, or tiiat they acted bona fde without
malice. Objection is made by the counsel of
the plaintiff to this part of the charge of the
court; but we think it was quite as favorable
to him as the well settled rules of law upon the
subject would possibly allow. To support an
action for a malicious criminal prosecution, the
plaintiff must prove, in the first place, the
fact of prosecution, and that the defendant
was himself the prosecutor, or that he insti-
gated its commencement, and that it finally ter-
minated in his acquittal. He must also prove
that the charge preferred against him was un-
founded, and that it was made without reason-
able or probable cause, and that the defendant
in makinff or instigating it was actuated by
malice. Proof of these several facts is indis-
pensable to support the declaration, and clearly
the burden of proof , in the first instance, is up
on the plaintiff to make out his case, and if he
fails to do so in any one of these particulan,
the defendant has no occasion to offer any evi-
dence in his defense. Undoubtedl]^, every
person who puts the criminal law in force
maliciously, and without any reasonable or
probable cause, commits a wrongful act; and
if the accused is thereby prejudiced, either in
his person or property, the injuij and loss so
sustained constitute the proper foundatioa of
an action to recover compensation. Malice,
alone, however, is not sufllcient to sustain the
action, because a person actuated by the pbun-
est malice may, nevertheless, prefer a well found
ed accusation, and have a justifiable reason for
the prosecution of the charge. Want of reason -

tt U.S.

1860.

Wheeler v. NasBnT.

544-568

able and probable cause is as much an element
in Uie action for a malicious criminal prosecu-
tion as the evil motive which prompted the
prosecutor to make the accusation ; and though
the averment is a negative one in its form and
character, it is, nevertheless, a material element
of the action, and must be proved by the
plaintiff bv some affirmative evidence, unless
the defendant dispenses with such proof by
pleading singly the truth of the several facts
mvolved in the charge. Morris v. Carson, 7
Cow., 281. Either of these allegations may be
proved by circumstances, and it is unquestion-
ably true that want of probable cause is evi-
dence of malice, but it is not the same thing;
and unless it is shown that both concurr^
in the prosecution, or that the one was com-
bined with the other in making or instiga-
ting the charge, the plaintiff is not entitted
to recover in an action of this description.
A1x»)rdingly, it was held in Foshay v. Fer-
guson, 2 Den., 619, that even proof of express
malice was not enough without showing, also,
the want of probable cause; and the court go
on to say, that however innocent the plaint-
iff may have been of the crime laid to his
charge, it is enough for the defendant to show
that he had reasonable grounds for believing
him guilty at the time the charge was made.
8imi&r views were also expressed in Stat^ v.
Crocker, 24 Pick., 88. There are two things,
say the court in that case, which are not only
indispensable to the support of the action, but
lie at the foundation of It. The plaintiff must
show that the defendant acted from malicious
motives in prosecuting him, and that he had no
sufficient reason to believe him to be ^llty. If
either of these be wanting, the action must
fail ; and so are all the authorities from a very
early period to the present time. Oolding v.
Crowis, Sayer, 1; Fanner v. Darling, 4 Burr.,
1,974; 1 HillardonT.,460.

It is true, as before remarked, that want of
probable cause is evidence of malice for the
consideration of the jury; but the converse of
the proposition cannot be sustained. Nothing
will meet the exigencies of the case, so far as
respects the allegation that probable cause was
wanting, except proof of the fact ; and the onus
probandi, as was well remarked in the case last
referred to, is upon the plaintiff to prove affir-
matively, by circumstances or otherwise, as he
may be able, that the defendant had no reason-
able ground for commencing the prosecution.
Pureell v. McNamwra, 9 East, 861; WtOans
V. Taylor, 6 Bing., 184; Johnstone v. Sutton, 1
Term, 644; Tamer v. Ambltr, 10 Q. B., 267.

Applying these principles to the present case,
it necessarily follows that so much of the
charge of the court as is now under consider-
ation; furnishes no Just ground of complaint
on the part of the plaintiff. On the contrary,
it is quite obvious that unless it was accom-
pain^ by prior explanations, not stated in the
bill of exceptions, it was even more favorable
to the plaintiff than he had a right to expect.
He was. bound to make out his case; and if it
did not appear that the prosecution had been
commenccKi with malicious motives, and with-
out reasonable and probable cause, then the
plaintiff was not entitled to a verdict. Mitehel
Y. Jenkins, 5 Bam. &,Ad., 594.

2. With these remarks as to the first ground

See 24 How, U S., Book 16.

of complaint, we will proceed to the examina-
tion of the second, which is also based upon a
detached portion of the charge of the court.
After stating the alternative proposition already
recited, the presiding justice proceeded to de-
fine the term "probable cause." He substan-
tially told the jury that probable cause was the
existence of such facts and circumstances as
would excite the belief, in a reasonable mind,
acting on the facts within the knowledge of
the prosecutor, that the person charged was
guiltv of the crime for which he was prose-
cuted.

Having thus defined the meaning of the term
'' probAble cause", he then proceed to say,
that the want of probable cause afforded a pre-
sumption of malice, but that such presumption
might be rebutted by other evidence, showing
that the party acted bona fide, and in the hon-
est discharge' of what he believed to be his du-
ty; and then pave the instruction to which the
second objection applies. It is as follows: ** If,
however, the jury find that the arrest was
wanton and reckless, and that no circumstances
existed to induce a reasonable, dispassionate
man to believe that the defendant was guilty
of having stolen the horses he had in his pos-
session, then the jury ought to infer malice."
Clearly, this part of the charge must be taken
in connection with what preened it, and when
so read and understood, it is impossible tp hold
that it is incorrect, except, perhaps, the closing
paragraph is put rather strongly in favor of the
plaintiff. Whether the prosecution was or
was not commenced from malicious motives,
was a question of fact, and it was for the jury
to determine whether the inference of malice
was a reasonable one from the facts assumed
in the instruction. Be that as it may, it is
quite certain that it furnishes no ground of ex-
ception to the plaintiff, and in all other re-
spects we hold the instruction to be correct.

8. One other objection only remains to be
considered. After stating the fact that the
magistrate who issued the warrant was sued
as a joint defendant, the presiding justice told
the jury that the warrant, as given in evidence,
was in due form, and that the presumption
was, from the statements found therein, that
there was sufficient evidence before the magis-
trate to authorize him to issue it; and then fol-
lows that portion of the instructions to which
the third objection applies. He then told the
jury that if there was probable cause for the
arrest of the defendant, he could be lawfully
detained a reasonable time till the warrant was
issued and executed. It is insisted by the
plaintiff that this instruction was both abstract
and misleading. But that theory is wholly
without support, from anything that appears
in the record, and, in point of ract, is directly
contradicted by what aoes appear. To sustain
that remark it is only necessary to refer to the
declaration, where it is alleged that the plaint-
iff was detained in prison for the space of
seven days, and the minutes of the proceedings
before the magistrate show that he was so de-
tained as the necessary consequence of his own
request for delay, and the neglect on his part
to offer any satisfactory security for his ap-
pearance at the time appointed for the exami-
nation. Those minutes were introduced by
the plaintiff; and in the absence of any proof

4U 76»

653-«3^

SUPBEMS COXTBT OF THE UnITKD StATBB.

Dec. Tsbm,

to the contrary, it must be assumed that they
speak the truth. In view of the whole case,
we think the charge of the court to the jury
was correct, and that there was no error in the
record.

The judgment of the circuit court is, therefore,
affirmed, with coete.

Clted-gS U. 8., 196; 6 Sawy., 589; 11 Kan.. 166 ; 66
N. Y., 464; 68N. Y..22.

MYRA CLARK GAINES. Appt,

f).

DUNCAN N. HENNEN.

(See 8. C, 24 How., 653-631.)

When whU is lost or destroyed, it map be admitted
to probate, on secondary proof in Louisiana —
what proof necessary to admit parol etidenee —
immaterial o^eetions— posterior wiU—what is
interruption of prescription — exeeutor*s state-
ment—rea adjuoicata — criminal proceedings
for bigamy, token inadmissible as evidence —
bastard may be devisee or legatee — adulterine
child may be legitimated in Louisiana — in
what manner — when confession of bigamist ad-
missible to prove bigamy — access between man
and wife, and legitimacy of child, presumed—
effect of judicial invalidation of marriage.

Id LouisiaDa, wfaere a will baa been destroyed,
seoondary proof Is admissible to prove its contents,
and to carry it to probate.

if a will, duly executed and not revoked, is lost,
destroyed or mislaid, either In the lifetime of the
testator, without his knowledge, or after his death,
it may be admitted to probate upon satisfactory
proof belnff given of its having been so lost, de-
stroyed or mislaid, and also of its contents.

To entitle a party to give parol evidence of a will
having been destroyed, where there is not conclu-
sive evidence of its abpolute destruction, he must
show that be had made diligent search and Inquiry
after the will In those places where it would most
probably be found. If In existence.

That this case wns not one for equity Jurisdiction,
ths t certain persons should have been made parties,
that the sources of title had not been set out in the
bill, that the probate proceedings in the court of
New Orleans are yet pendlnsr and that the same
court has exclusive Jurisdiction ; held, immaterial
objections.

Courts of probate may, for cause, recall or annul
testameniary letters, but they can neither destroy
nor revoke wills.

Such courts may and often have declared that a
posterior will of a testator shall be recognized in
the place of a prior will which had been proved
when it was not known to the court that the testa-
tor had revoked It.

Plaintiff's claim Is not barred by prescription ;
the prescription of twenty years does not exist; for
she did not attain her majority until 1826, and her
suit for the probate of the will was instituted in
1834.

The complainant claimed the Inheritance as early
as that date, and the prescription which had b«run
to run had been legally Interrupted on the a)th
July. 1838, the date of her first bill.

By Louisiana Code, 3184, a legal Interruption of a

g rescript Ion takes place where the possessor has
sen called to appear before a court of Justice,
either on account of the property or the possession,
and the prescription is interrupted by such demand,
whether the suit has been brought before a court
of competent Jurisdiction or not.

That article of the Code contemolates a volun-
tary. Intentional and active abandonment of the
suit, in order to restore the running of a right of
prescription.

NoTB.— ir?i€rt cmiMitutes a vaiid marriam. Evi-
tlence tn prove marriaoe. See note to Jewell v. Jew-
ell, 42 U. S. (1 iluw.), 219.

7iO

The mere absence of herself and oouoael at a term
of the court when her case was called Is InralB-
dent, without other evidence, to convict her ot hav-
ing abandoned her demand. '

After the interruption of the prescription by the
filing of the bill by the complainant, the defendants
coum no longer claim to be in possession in good
faith, as that is defined in the Civil Code.

By the decisions of Louisiana, an extraJudicisl
statement by an executor, that he believes tne debt
to be due by the estate, does not bind the heir, nor
is the heir bound by the approval of a court as to
such a claim, if it be made ex partf.

The suit was not res adjudieata by this court in
its Judgment in the case of Gaines v. Belf and
Chew, Sd U. 8., 506.

This court having decided, in 47 XJ. 8., that there
had been a lawful marriage between the com-
plainant's father and mother, and that Mis. Gaines
was the lawful and only Issue of the marriage,
the decision made in the case in 68 U. 8., was not
intended to reverse the decree in 47 U. 8^ and it
cannot be so applied as res judicata to this case.

In the first suit her demand was for one half and
four fifths of another half of the property owned
by her father when he died, which she then claimed
as the donee of her mother to the one half, and as
forced heir of her father to four fifths of another
half of his estate, and now she claims in this suit
as universal legatee and legitimate child of her
father, under h& will of the 18th July, 1818, which
has been admitted to probate by the Supreme
Court of Louisiana. 'I'he law of Louisiana will not

Eermlt the decision in the first to be pleaded against
er in this case as a resjvdicata.

The case in 58 U. 8., and that now under our
consideration are dissimilar as to jiMirtiee and tbinin
sued for, or what is called *' the object of the Judg-
ment," and the demand now made is not betweeo
the same parties or formed agaimt each In the same
quality.

Criminal proceedings Instituted for blsramy by
the canonical presbyter of the Holy Oathedral
Church of New Orleans, introduced by the defend-
ants as a part of their evidence in this case Is Inad-
missible as such, and all which It contains must be
disregarded.

A bastard in esse, whether bom or unborn, is
competent to be a devisee or legatee of real or per-
sonal estate.

If the complainant was the offspring of an Illicit
intercourse she would still be in the conditioo.
from her father's testamentary declaration of her
legitimacy, to take as his universal Imitee.

In Louisiana, though a child may be adulterine
in fact, it may be legit imated for all the purposes of
inheriting from its parents. If one or either of
them Intermarried in good faith.

On such a question good faith is first to be pre-
sumed ; and, as to what constitutes good faith. It is
adjudged in that State that to marry a second time.
supposing the previous marriage Invalid, Is one of
the cases of good faith.

The testamentary recognition of a child as legiti-
mate is of the highest legal authority. All pre-
sumptions are to be taken in favor of such a dec-
laration.

In Louisiana, although a putative marriage be
adulterine in fact, yet u It was contracted in good
faith by the parties, or by either of them, their
children are leigitimated to Inherit from their par-
ents, either in a case of intestacy or to take by
testament.

In the latter case, a declaration, by either father
or mother, that they are their children, without the
addition that they are natural children, will make
them legitimate, and no other proof can be demand-
ed of them to enable them to enjoy all the rights
of legitimate children.

A charge of bigamy In a criminal prosecutkm
cannot be proved by any reputation of manlsge;
there must be proof of actual marriage before the
accused can be convicted.

But in a dvil suit the confession of a bigamist
will be sufllcient, when made under circumstances
from which no objection to it as a confession can
be implied.

Access between man and wife Is always presumed
until otherwise plainly proved, and nothing is al-
lowed to impugn the iegitlmeey of a child ttort of
E roofs by facts showing it to beimpossil>le that the
usband could have been the father of It.

A Judicial invalidation of marriage at any time
for the bigamy of a party to it relates tMck to the
time of the marriage, and places the dccel\(^ In a
free condition to marry again, or to do any other

1860.

GAHTBa y. HsmiEir.

56d-«81

act as an unmarried woman, without any sentence
of tbe nullity of the marriaare.

(Mr. Justloe CAMPBSiiL, bavloff been of counsel,
did not sit in this case.)

Argued Feb. U, 1861, Decided Ma/r, I4, 1861.

APPEAL from the Circuit Court of the United
States for the Eastern District of Loui-
siana.

The case is fully stated by the court.

Meesn, James M. Smiley, F. Peiin, €•
Cnsliin^, and Okilton & Ma^g^rader, for
the appellant :

Mr. Duncan N. Hennen» in person.

Mr. Lonis Janln, in behalf of the City of
New Orleans.

Mr. Jiutiee Wayne delivered the opinion of
the court:

We will first give some of the facts of this
case, that the litigation which has grown out of
the wills of Daniel Clark may be correctly un-
derstood. Without them it could not be.

They have been the subject of five appeals to
this court. This is the sixth. It presents the
controversy differently from what it has been
before. It also presents points for decision
which were not raised in either of the preced-
ing cases. Some of those that were, however,
will necessarily be mentioned in this opinion.to
illustrate their connection with this case. Thev
may be so considered without our coming at ail
into conflict with any Judgment heretofore
given concerning the rights of the parties in
any antecedent appeal. Our conclusion will
differ from one of them on account of testi-
mony in this case which was not in that, but
they will not be contradictory; and because we
have information in this, concerning a piece of
testimony then relied upon, which we shall ex-
clude in this, as inadmissible for any purpose.

Four of the five appeals were deddea by this
court substantially in favor of Bfrs. Gaines. The
fifth was adverse, not in anywise excluding the
re-examination of the only point then ruled by
the use of the same testimony, and that which
is new. Considered in connection, both have
impressed us with a different impression of the
status of Mrs. Gaines* legitimacy from that
which this court did not then think was suffi-
ciently proved, as we now think it has been.
Now, she is here with a support which her
cases have not had before. She comes with a
decision of the Supreme Court of Louiriana, di-
recting, upon her application, that the will of
Daniel Clark, dated at New Orleans, July 18,
1813, as set forth in her petition, should be rec-
ognized as his last will and testament, and that
it should be recorded and executed as such. In
that will her father acknowledges that his be-
loved Myra, then living in the family of Samuel
B. Davis, is his legitimate and only daughter,
and bequeaths to her all the estate, reu and
personal, of which he might die possessed, sub-
ject only to the payment of oertahi legacies
named in the will.

Her petition for the probate of that will was
first addressed to the Second District Court of
New Orleans, in which Judge J. N. Lea pre-
sided.

After asserting that such a will had been
made by her father, its contents were set out as
they were recollected by witneesee who had

Bee 34 How.

read it, and bv other persons to whom it had
been shown by the testator, with whom he
spoke of it in the last moment of his life, as
his last will and testament, in favor of his le-
gitimate daughter, Mvra, charging them» to
take care of it, and telling them it would be
found locked up in a trunk, describing it,
which he had placed in a certain room in his
house.

The will is then stated in the petition to have
been olographic; that is, altogether written and
signed in her father's handwriting, with his
seal attached to the same; that immediatelv aft-
er his death diligent searches were made for it;
that it could not be found ; that it has not been
since, and that it had been mislaid, lost or de-
stroved.

She then declares, that when her father died
she was a minor, absent from New Orleans,
and livins with Samuel B. Davis, to whom and
whose lady she had been confided in the year

1812. Judge Lea took cognizance of her pe-
tition, proceeded throughout its pendency with
great judicial exactness and caution, and, as
the whole record shows, with ofQcial liberality
to every one concerned in resisting the appli-
cation, without in any particular having demed
to the petitioner her nghts.

The judge, however, finally decided against
the sufficiency of the proof to establiA the
will aocordinij^ to the requirements of the Civil
Code of Louisiana, but without prejudice to
the right of the petitioner to renew her appli-
cation, with such proofs as might be sufficient
to establish an olographic will. She applied
for a new trial, and upon that being denied, so-
licited an appeal to the Supreme Court, and
that was allowed.

The Supreme Court tried the case. It dif-
fered with Judge Lea as to the proof which was
required by the Code to establish a lost or de-
stroyed olographic will It reversed (fib Judg-
ment of the court below, and decreed that the
will of Daniel Clark, dated on the 18th July,

1813, should be recognized as his last will and
testament, and ordered it to be recorded and to
be executed as such, it being posterior to the
will of May, 1811, which Relf and Chew had
presented for probate, under which they had
taken possession of the property of Daniel
Clark, and had disposed of it to the entire exclu-
sion of Mrs. Gaines from any part of it — ^sn es-
tate shown by the proof in the cause introduced
by the defendants, which had been registered
or inventoried a short time before Clark's death,
at more than $700,000, in which Clark and
Coxe were interested, and an estate exclusively
belonging to Clark of $296,000.

But to return to the decree of the Supreme
Court establishing the will of 1818; it must
be understood, that its admission of the will
to probate does not exclude anyone who
mav desire to contest the will with Mrs.
Gaines from doing it in a direct proceeding,
or from using any means of defense by way
of answer or exception, whenever she shall use
the probate as a muniment of title. And the
probate does not conclude Relf and Chew, or
any other parties having any interest to do so,
to oppose the will, when it shall be set up
against them, by such defenses as the law will

Sennit in like cases. It was with those quali-
cations of the probate of the will of 1818 that

771

658-631

SUFBBMB COUBT OF THE UnITBD StATBS.

Dec. Tbrm,

the case was tried in the court below, and they
have been constantly in our minds in the trial
of the appeal here.

[Jpon the rendition of the probate by the
Supreme Court, Mrs. Gaines filed her bill in
this case. It shall be full^ stated hereafter,
with the defeases made agamst it.

Before doing so, it is due to the merits'of the
controversy to advert to the decisions of the
Probate Court of the Second District of New
Orleans, and to that, of the Supreme Court re-
versing it, more minutely than has been done.
Especially, too, as they are coincident with our
conclusions upon the testimony regarding the
execution bv Mr. Clark of his olographic will
of 1818, and of the concealment or destruction
of it after his death.

The Supreme Court adopjts the prepared
statement of the facts of the case as it was made
by Judge Lea in the court below. Its accu-
racy has never been denied by any one of ttie
parties interested m this suit, nor by anyone else.

It is as follows: "The petitioner alleges,
that on the 16th of August, 1818, the late Dan-
iel Clark, her father, departed this life, having
previously, on the 18th of July, executed an
olographic will and testament, by which he
recognized her as his legitimate and only daugh-
ter, and constituted her universal legatee. That
the will was wholly written, dated, and signed,
in the handwriting of the testator, and was left
among his papers at his residence; that after
his death search had been made for it, but that
it was not found, and it had lieen mislaid, lost
or destroyed."

The learned judge then proceeds: " To en-
title the petitioner to a judgment recog^nizing
the existence and validity of the will, it is nec-
essary that she should establish affirmatively,
bv such testimonv as the law deems requisite,
that D^iel Clark did execute a last will con-
taining testamentary dispositions as set forth
in the petition, and that he died without hav-
ing destroyed or revoked it." '* That looking
for the testimony which might solve the ques-
tion, whether such a will had ever been exe-
cuted or not, a reasonable inquirer would nat-
urally turn for information to those who were
most intimate with the deceased in the latter
part of his life, and especiallv, if thev could be
found, to those who were with him m the last
moments of his existence, when the hand of
death was upon him, if they had no interest in
directing his propertv into any particular chan-
nel, as they might be considered as the best
and most reliable witnesses that could be pro-
duced; and it appears to be precisely testimony
of that character that the petitioner presents in
support of her application. " Judge Lea then
sa^s: " Boisfontaine had business relations
with the deceased which brought them into
frequent intercourse; and that for the 'two last'
days of his life, up to the moment of his death,
he was with him. That De la Croix and Belle-
chasse were intimate personal friends of Clark,
and were with him shortly before his death. All
of these witnesses conciur in stating that Clark
said he had made a will posterior to that of 181 1,
and De la Croix sajrs, that Clark presented to
htm in his cabinet a sealed parcel, which he
declared to be his last will, and that it would
be found in a small black trunk. De la Croix
also had sworn, shortly after Relf had presented

772

the will of 1811 for probate, that Clark had
made a will posterior to that; Uiat the existence
of it was known to several persons, and he ap-
plied for an order of the court and obtained it,
commanding every notary in New Orleans to
report if sudi a document had not been depos-
it^ with one of them. Bellechasse and Mrs.
Harper swore that they had read the will. The
judge then expresses his conclusion to be, that
the legal presumption of the existence of such
a paper had been made out, and that its having
been destroyed or revoked by the testator had
been satisfactorily rebutted, and that there was
nothing in the record to impeach the credibilitv
of Bellechasse or Mrs. Harper. In these rul-
ings of the district jud^ of the Supreme Court
concurred, and then said, in delivering its opin-
ing, all they had to do was to inquire whether
the will of 1818 had been proved in conformity
with the article No. 169 of the old Code or 1648
of the new."

Those articles require the testimony of two
witnesses when the will shall be presented for
probate, who shall declare their recognition of
It as having been written wholly by the tes-
tator, that it had been signed and sealra by him.
and their declaration that they had often seen
him write and sign in his lifetime. It was
from such a requirement of proof, relecting
secondary testimony altogether, that thediatridi
court refused the petition for a x>robate of the
will. Upon such refusal Mrs. Gaines appealed
to the Supreme Court.

That court said : ' 'That the question of the al-
leged insufficiency of the proof in the case
could only be dfetermined by an inquiry,
whether the article was to be pursued at all
times and in all cases, or whether they were
not merely directions when the will itself was
presented for probate, and were inapplicable to
restrain the court in certain cases, when by
reason of the loss or destruction of such an in-
strument, from taking secondary proof of its
contents, as the best which the nature of the
case was susceptible."

The court then, by a course of reasoning,
supported by several cases from the Louisiana
Reports, determined that in the event of a will
having been destroyed, secondary proof is ad-
missive in Louisiana to prove its contents,
and to carry it to probate; that the articles 169
and 1648 contemplate that the will itself should
be presented, with the proofs of its execution,
to die judge of probate when that can be done;
that no one would seriously contend that the
calamity of its destruction should deprive the
legatee of the right to establish it by sec-
ondary evidence; "for was such the law, a re-
ward would be offered to villainy, and it
would always be in the power of an unscrupu-
lous heir to prevent the execution of a will.'*
It then meets the assertion directly, that arti-
cles 1648 and 1649 of the Code require the
production of the will in order that it might be
indentifled by witnesses who reoognne it;
denies that position, and affirms that in the
absence of such witnesses the evidence concern-
ing an unproduced, destroyed olographic will
might be complete. The articles are not nega-
tive laws, declaring that no other kind of proof
shall be admitted. "And it is doubled very
much if sn olographic will made here had by
some accident been destroyed before being

1880.

GikHTEB y. HSNKXH.

568-681

legally proved, whether a copy of it, identified
by two witnesses, who were able to swear to
the genuineness of the original in the manner
pointed out by law, would not be considered a
sufficient compliance with the provisions of the
code." Such, in fact, was the petioner's case
they were considering. Such is the law in
analogous cases. The law cannot liave been in-
tended to require an impossibility, and to leave
a party so circumstanced without a remedy.

The doctrine of the common law is in ac-
cordance with the view taken bv the Supreme
Court of Louisiana concerning lost deediB and
wills. It has been judicially acted upon in
English and American cases. It was so in the
case of Dan v. Brawn, 4 Cow., 488. That
was a suit upon a lost will devising real estate.
By the Statute of New York it was necessary
to prove the will by three credible witnesses.
The will of Brown, as to its execution, was
proved by one of the subscribing witnesses.
He stated it was executed in the presence of
himself, James Mallory, and another person
whose name he did not remember, but that he
had no doubt of his being a credible witness.
That, the court said, was all the evidence
which could be expected under the circum-
stances. There are several other cases to the same
effect in our American Reports. Jfirman, on
the Probate of Wills, 1 vol., Perkins' edition,
p. 21^, says, upon the authority of many cases,
note A: ** that if a will, duW executed and not
revoked, is lost, destroyecT or mislaid, either
in the lifetime of the testator, without his
knowledge, or after his death, it may be admit-
ted to probate upon satisfactory proof being
given of its having been so lost, destroyed or
mislaid, and also of its contents.'* Bui to en-
title a party to give parol evidence of a will
alleged to he destroyed, where there is not con-
clusive evidence of its absolute destruction, the
party must show that he has made diligent
search and inquiry after the will in those places
where it would most probably be found, if in
existence. Under its reasonmg, the Supreme
Court of Louisiana, sustained by the author-
ities in England and in the United States, admit-
ted the olographic will of 1818 of Daniel Clark
to probate, declaring ,also, such was the law in
Louisiana, and reversed the judgment of the
lower court dismissing the petition of Mrs.
Gaines.

In virtue of that decision of the Supreme
Court, Mrs. Qaines presents herself to this
court, declared by her father to be his legitimate
and only daughter, and universal legatee. We
will, in another part of this opinion, show the
legal effect of her father's testamentary decla-
ration.

We will now state, as briefly as it may be
done in such a case, the essential allegations of
the bill; the responses of the defendants and
their averments; the proofs in support of the
complainant's rights, and such of them as are
relied upon to defeat them; the legal issues
made by the bill and answers, and tne points
relied upon by both parties in their arguments
in this case.

The bill was brought against several defend-
ants, Duncan N Hennen being one of them.
They separated in their answers. Hennen, aft-
er giving the claim of title to the property for
which he is sued, admits that it was a. part oi

Bee 24 How.

the estate of Daniel Clark, and adopts the an-
swers filed by the other defendants as a part of
his defense. The cause was tried with re^
spect to him only, and the bill was dismissed
bv the court below. From that decree Mrs.
Gainee appealed to this court.

After specific declarations as to the character
in which she sues, and her legal right to do so
as the legitimate child of her father and his
universal legatee, she acknowledges that he had
made a provisional will in the year 1811. That
he then made his mother, Mar^ Clark, his uni-
versal leeatee, and named Richard Relf and
Beverly Chew his executors. That the^ had
presented it to the court for probate, that it had
been allowed, and that they, as executors, had
taken posseession of the entire separate estate
of Daniel Clark, and of all such as he claimed
in his life in copartnership with Daniel W.
Coxe. It is then assumed that the will of 1811
had been revoked by the will of the 13th July,
1818. That Chew was dead ; that all the legal
power which the probate of the will of 1811
had given to Relf and Chew had expired; that
Mary Clark was dead, and that her heirs and
legatees reside beyond the jurisdiction of the
court.

Mrs. Gaines then states, in the language of
equity pleading, the pretenses of the defend-
ants in opposition to her claims — such as, that
Relf and Chew sold them the property as tes-
tamentary executors of Daniel Clark under the
will of 1811 ; that they bought for a full consid-
eration, without any notice of the revocation of
the will of 1811, or that any other person was
interested in the property than M!ary Clark;
that the titles they had from Relf and Chew
could not be invalidated by the revocation of
that will, and that the right of action against
them for the property in their possession, ii com-
plainant had ever had any, were barred b^ pre-
scription— ^that is, by the Acts of Limitation of
Loidsiana. It is then charged by the complain-
ant that Relf and Chew had no authority to sell
the property of Daniel Clark when the sales
were made by them. That they had never
made an inventory of the decedent's property
for the probate court before the sales were
made; that the sales were made without any le-
ap\ notice, and for an inadequate consideration.
That if Relf and Chew had sold under a pow-
er of attorney from Marv Clark, and not as ex-
ecutors, Uiat Mary Clark's power wus insuffi-
cient in its terms for such purpose; that she
had no power or rights in the estate of Daniel
Clark to ffive such a oower, and that Relf and
Chew had not caused themselves to be recog-
nized in a proper court as Mary Clark's attor-
neys, as they ought to have done, before they
could acquire any right to sell any part of the
estate of Clark. She then charges that the de-
fendants knew, when they bought the property
sued for, that she had applied as early as in the
year 1884 to have her father's olographic will
of 1813 probated by the proper court at New
Orleans; that the defendants knew of all the ir-
regular proceedings and assumptions of Chew
and Relf in respect to the estate of her father,
and of their sales of it without authority ; that
the defendants knew, when they bought, of the
suits which she had brought to recover her
rights in her father's estate; and that her pres-
ent suit was brought imder the probate of the

778

558-681

SUPBBICB OOUBT 09 THB UNmSD STATIfl.

DsC. TSBM,

win of 1818 by the Supreme Court of Louisiana.

Hennen, the defendant, answers for himself,
and adopting the answers of the other defend-
ants, states that the property for which he was
sued is designated according to a plan made
in 1844, as lots 9, 10, 11, on the square com-
prised between Phillippi. Circus, and Poydras
streets; each lot, by ^nelish measure, contain-
in s; 23 feet 11 inches and 2 lines between paral-
lellines.

The answers of the other defendants make
the same admissions as to their titles having
been derived from or through Relf and Chew
and Marv Clark; admit the property separately
claimed bv them to have been a part or the es-
tate of Clark; and finally make an averment
that Mrs. Gktines has not that civil stattu by
her birth which, under the law of Louisiana,
can entitle her to take the property of her fath-
er under the will of 1818, though it had been
admitted to probate, and that she had been de-
clared in it his legitimate and only daughter.
In other words, the defendants have declared
that she is an adulterous bastard.

It is proper to state the books and documents
which are in evidence in this case.

1. The present record of Gaines v. ffennen,

2. The printed record of the suit Ko. 188, of
December Term, 1851, in this oo\iri,Oaines v.
Bdfand Ohew, 12 How., 472.

8. The proceedings in the courts of probate
entitled Probate Record.

4. The commercial account books kept by
Relf and Chew, professing to relate to their
tranractions concerning the estate of Daniel
Clark.

This testimony, as it has been enumerated,
was brought into the case by agreement of
the parties for as much as it might be worth,
subject to exceptions by both sides as to its ad-
missibilitv upon the trial of the cause.

Several immaterial or formal points were
made in the argument to defeat the claims set
out in this bill— such as, that the case was not
one for eouity Jurisdiction, but was raUone ma-
iericB, exclusively cognizable before the Probate
Court of the Second District of Kew Orleans.
Next, that Chew and Relf, and Mary Clark,
or her heirs should have been made parties;
that the sources of Daniel Clark*s title to the
property sued for had not been set out in the
bill in addition to the manner it had been
enumerated. Again : that the probate proceed-
ings in the Second District Court of Mew Or-
leans in 1856 are yet pending and undetermined,
and on that account the same court has ex-
clusive Jurisdiction over the estate of Daniel
Clark. We have examined these formal ob-
jections, and find them to be unsustained by
the cases cited in support of them. They are
inapplicable to the actual state of the case, and
are insufflcient to arrest the trial of it upon its
merits. The same objections were also urged
in the Circuit Court, but were disregarded, we
presume, by the Judge as unsubstantial points of
defense. As to the objection that Relf and Chew
and the heirs of Mary Clark had not been made
parties to the bill, we observe it was not neces-
sary to make either of them so. The present
is a suit for the recovery of property aamitted
by the defendants to have been a part of the es-
tate of Daniel Clark. Nothing is sought U> be
recovered from Chew and Reu. Their ezecu-

torial functions under the will of 1811 have
long since been at an end. Had the bill involved
directly their transactioiisas executors with the
complainant, as universal legatee, up<Mi a prop-
er showing of that, with a prayer to be maae
parties, the court n^ght have allowed it. But
not having done that, the defendanta cannot
urge, because Relf and Chew have not been
made defendants with them, that they should
escape from a trial on the rightfulness of their
possession of a part of the estate of Clark, as
they have admitted it to be; or that they have
not acquired it under circumstances from
which the law presumes that they had notice
of the irregularity of the sale as it was made
by Relf and Chew. Nor was it neoessaiy for
the heirs of ILiry Clark to be made parties ; for
Mary Clark herself never had any pecuniary
responsibilities for the sales of the property of
the estate of her son by Relf and Chew, as her
power of attorney to them upon its face was ir-
regularly executed, and was of itself notice to
the defendants that when they bought, the
sales had not been made in conform!^ wiUi the
law ol Louisiana regulating the safes of the
property of a testamentary ^^oedent.

But it was also said in the argument that no
claim could be set up by Mrs. Gaines under the
will of 1818 until Uie will of 1811 shall be set
aside. Neither the language used by this court
in 2 How., 661, nor in tiie decision in 12 How.,
472, will bear such an interpretation, or admit
of such a conclusion. The rulines of courts
must be considered always in reference to the
subject-matter of litigation and the attitude of
parties in relation to the point under discussion.
And it will often be the case, as it is now, that
counsel will use an illustration for a Judicial rul-
ing[, or words correctly used when they were
written as applicable to a different state of
things. When this court said, in 12 How., 651.
that the will of 1818 cannot be set up without
the destruction of the will of 1811, it was with
reference to the existing fact that tiie latter had
been duly proved, andtiiat it stood as a title to
the succession of the estate of Daniel Clark, and
that the will of 1818 had not then been proved
before a court of probate, and on that account
could not be set up in chancery as an inconsist-
ent and opposing succession to the estate while
the probate of the will of 1811 was standing in
full force. And when Mr, Ju$Uee McLean,
speaking for the court, 2 How., 647, says, '"she
(meaning Mrs. Ckdnes, then the complainant^
must ask for the probate of the will of 1813, and
a revocation of tne other will of 1811," adding
"for no probate can stand wliile a previous one
is unrevoked," it is plain that the meaning was,
as we now say it is, when a court recalls the
probate of a will, substituting the probate of an-
other will by the same testator made posterior
to the first, that the former becomes iix^Kn-
tive, and that the second is that under which tbe
estate is to be administered, without any for
mal declaration by the court that the first was
annulled, and it makes no difference thai apsrt
of the estate has been administered under the
first probate. The unadministered most be
done under the second. Courts of probate may
for cause recall or annul testamentarr letten,
but they can neither destroy nor revoke wHb.
though they may and often have declared that
a poSerior will of a testator shall be reoogniiod

UV.S.

1860.

Gairbs t. Hbkkbk.

65d-6dl

in the place of a prior will which liad been
proved, when it was not known to the court
that the testator had revoked it. Sach is ex-
actly this case. The Supreme Court decreed
that the wili of Daniel Clark, dated New Or-
leans, July 18, 1818, as set forth in the plaint-
iJl's petition, should be recognized as his last
will and testament, and the same was ordered
to be recorded and executed as such, with the
declaration, that admitting the will to probate
does not conclude anyone who may desire to
contest the will with the applicant in a direct
action. The decree of the court in that partic-
ular is the law of the case.

It was also urged that the defendant and
those under whom he claims were purchasers
for a valuable consideration without notice, and
are therefore in equity protected against the
claims of the complainant. It is a goSd defense
when it shall be proved as a nuitter of fact. But
in this instance it is not onlv disproved by testi-
mony introduced by the defendants, but by ad
missions in their answers, as shall be shown here-
after in this opinion. In our opinion the objec-
tion has no standing in this case, though the argu-
ment from which the counsel admitted he had
borrowed it is a very good one in its proper place.

We shall now examine the case upon the more
serious points made in opposition to Mrs. Qaines
by the learned counsel, Mr. Janin.

The first was, that her claim was barred by
prescription. The prescription relied upon by
the defendants is that of ten years against one
claiming a vacant estate, twenty years to pre-
scribe a title, and thirty years to bar the faculty
of accepting a succession or the estate of a de-
ceased person. There being no vacant succes-
sion in this case, the ten years' prescription
does not apply, and the prescription of twenty
years does not exist; for Mrs. Gkilnes did not
attain her majority until June or July,1826,and
her suit for the probate of the will made by her
father on the 18th of July, 1818, was instituted
in 1884. When her petition for that purpose was
dismissed in 1886, her first bill was filed in a
month or two afterwards. From that time
there was a legal interruption of the prescrip-
tion of twenty years, which the defendants
have pleaded and now rely upon. In fact, they
recognize the interruption in their answers. In
their averment of their having had peaceable
possession of the property aned for since they
bought it, they add, " that they had never been
disturbed in respect to it,*' except by an abor-
tive attempt of the complainant and her husband
to recover it by their bill filed in 1886. New
Record, 47; We find them also in their an-
swer (New Record, 54) admitting that such a
suit as complainant refers to in her present bill
had been instituted by her and her husband in
1886, and that the object of it was Uie recovery
of the * identical property" now in controversy.
New Record, 56, 67. It is also admitted in the
answer, that the suit of the complainant in the
probate court to annul the probate of the will
of 1811, and to set up that of 1818, was brought
on the 18th June, 1884. These admissions
are decisive that the complainant claimed the
inheritance as early as that date, and that the

grescription which had begun to run had been
sgally interrupted on the 28th July, 1886, the
date of her first bilL

See 34 How.

By the article of the Code, 8484. a legal inter-
ruption of a prescription takes place where the
possessor has been called to appear before a court
of justice, either on account of the property or
the possession, and the prescription is inter-
rupted by such demand, whether the suit has
been brought before a court of competent ju-
risdiction or not.

The weight of authority upon the construc-
tion of that article of the Code is, that it con-
templates a voluntary, intentional and active
abandonment of the suit, in order to restore the
running of a right of prescription. In the case
of Wtaon V. MarghaU, 10 La. Ann.. 831, the
court said the plaintiff did not dismiss the suit,
or consent to the dismissal. She lived in a re-
mote part of the State, and the mere absence of
herself and counsel at a term of the court when
her*case was called is insufficient, without oth-
er evidence, to convict her of having abandoned
her demand.

Prali V. Peet*$ Ouratar, 8 La., 282; Dunn v.
Kenn^if, 11 Rob. La, 250; Jfonoood v. DemU,
7 La. Ann., 628; Mechanic A Trader^ Bank v.
TheaU, 8 La. Ann., 469.

After the interruption of the prescription by
the filing of the bill by the complainant, the de-
fendants could no longer claim to be in posses-
sion in good faith, as that is defined in the Civil
Code. In article 8415 the possessor in bad faith
is he who possesses as master, but who assumes
this quality when he well knows that he has no
title to the thing, or that his title is vicious and
defective. The possessor mtist not only not be
in bad faith, but in the positive belief that he
is the true owner, and if he doubts the va-
lidity of his title, his possession^is not the basis
of prescription. Troplong, Prescription. Vol.
IL. p. 461, No. 927; Ih., p. 444, No. 918; lb.,
p. 442, No. 916. The plea of prescription is not
available in this case.

But the defendants go further, and insinuate
that their possession of the property, though
beginning with the executors, Relf and Chew,
continued afterwards under Mary Clark, whose
power of attorney to them authorized them to
sell the. estate of Clark.

When Relf and Chew proved the will of
1811, they received the estate of Clark as exec-
utors, with a right of detainer for one year,
and for as long afterwards as the court of pro-
bate might permit upon their application,
showing cause for the delay or the extension
of a longer tune. They did receive such an ex-
tension for three years, upon their representa-
tion that the nature of the estate, the difficulty
of the time, and the ample sufficiency of the
estate to pay all of its debts, would enable
them by the' delay to accomplish that result.
The creditors were called upon to meet to con-
sider the proposition. They assented to it. But
the executors never fultilled the arrangement,
either for the benefit of the creditors or for the
legatees under the will of 1811. Nor did they
ever make any return to the court of probates
of their transactions relative to Clark's estate,
until 1886, after the complainant had sued
them, and then without vouchers to homologate
their receipts, expenditures and payments,
except for a small part. Shortly after the ap-
plication for an extension of time, in the year
1818, they applied for a power of attorney,

d5^-6di

SUPBEHB COUBT OF TRS UnITSD StATBS.

Dbc. Tbrm.

from Mary Clark, who had been named in the
will of 1811 as universal legatee, to authorize
them to sell the estate in her behalf. The pow-
er was given;, and under it, without any notice
to the court of probate, which ought to have
been ffiven, and the power filed in it, they con-
tinued, sa the testimony in this case shows, to
act as executors, and to dispose of the estate of
Glark,both real and personal, property in copart-
nership, and other property separately belong-
ing to Clark, without ever having received any
permission to do, so from the court of probate;
and that should have been obtained, as Mary
Clark had not been acknowleds^ed by that court
as the universal legatee of Clark. It may be
that they mistook their powers in doinj? so; but
they received the estate of Clark in a fiduciary
character, to be accounted for to the legatees
and creditors, according to their rights under
the law of Louisiana, and for that they are re-
sponsible. Besides, the power from Mary Clark
was given to them as executors, that she might
have the benefit of those responsibilities for the
faithful execution of the trust that they were
under b^ th^ law of Louisiana as executors.
They paid debts, received moneys, sold prop-
erty, and acted throughout as if they were not
responsible to the court from which they de-
rived their testamentary letters, or to Mary
Clark, and, as the record in this case shows,
without sustaining their transactions by vouch-
ers of any kind.

Nothing is better settled by the decisions of
its courts in Louisiana, than "that an extra
iudicial statement bv an executor, that he be-
lieves the debt to be due bv the estate, does
not bind the heir, nor is the heir bound by the
approval of a court as to such a claim, if it be
made ex parte." 4 La., 882. Again: that the
admission of the genuineness of the signature
to vouchers, filed bv the curator of a succes-
sion, in support of his account, dispenses with
any other proof of the payment claimed; but
when such payments are made without an or-
der of the court, the curator must show that
the debts were really due by the succession, or
he will not be entitled to credit for the amounts
so paid. MiUer v. Mtiler, 12 Rob. (La.), 88. A
receipt given to an administrator for the pay-
ment of an account is not evidence that the ac-
count was due, if the fact of being due is dis-
puted. Moore v. TTiebadeaux, 4 La. Ann., 74. So
an administrator who renders an account is
bound to establish the items of It by evidence,
and may be held to strict proof by the parties
interested, without a formal opposition on their
part. Succession of Lee, 4 La. Ann., 579.
The accounts of Relf and Chew were put in
evidence by the defendants, and they were
used to show, among other thines, that they
were authorized to sell the estate of Clark as they
did, and that they were auxiliary for the estab-
lishment of the defendant's plea of prescription.
Such, however, is not our opinion, and but for
the use made of them, we should not have no-
ticed them at all. not thinking that they are
put m issue by the bill of the complainant, or
the answer of the defendants, particularly as
Relf and Chew are not parties to this pro-
ceeding.

We will now proceed to the consideration of
that point made In the argument by the coun-

sel of the defendant, but more particularly rn>-
resenting the City of New Orleans, as he said
he did.

It was, that complainant's suit could not be
maintained, hecAuae it was reeaeffudieata by ttoB
court in its Judgment In the case of at Qaihea ▼.
BOf, In 12 How., 506.

We do not think so. That case is misonder-
stood by the learned counsel. Then the par-
ties went to trial upon the demand of Mrs.
Gaines for.one half of her father's estate, as the
donee of her mother, his widow, and as forced
heir of her father by the law of Louisiana for
four fifths of another half of hit ettaie.

Her bill Uien was brousht in consequence of
this court having decided. In 6 How., 550, that
there had been a lawful marriage solemniaed
in good faith between them in Philadelphtt.
That case was tried upon the same evioence
upon which the appeal was determined in 12
Howard, with the exception of what is mia-
called an ecclesiastical record from the Cathedral
Church in New Orleans, of which we dkiall
have much to say hereafter. Besides haTing
decided, in 6 Howard, that there had been a
lawful marriage between the complainant's
father and mother, this court decreed that Mrs.
Qaines was the lawful and only issue of the
marriage; that at the time of her father's death
she was his only legitimate child, and waa ex-
clusively Invested with the character of his
forced heir, and as such was entitled to its
rights In his estate.

The judgment In that case has never been
overruled or impaired by this court. It certain-
ly was not intended to be by the case in 12 How-
fuxl, for the report in that such shows, from the
number of the justices who sat upon its tnal,
and their decision as to the Judgment then to be
rendered, that the majority of them did not in-
tend to overrule the decree In 6 Howard. It
was recognized again as still in force by a
majority of the judges who sat in this case in
our consultation. 'The defendant in the case
of 1851, 12 How., 537. admitted that such a de^
cree was rendered, denying, however, that it
was conclusive upon or that it oug^t to affect
their right; and if it could do so, it ought not
to have such an effect in that instance, averring
the same as a matter of defense, that the decree
was brouf;ht about and procured by irapodtioQ
combination, and fraud, between the complain-
ants and Charles Patterson. That it ahoold
not be regarded in a court of justice for any
purpose wnatever, and that it had been con-
sentend toby Patterson to enable the compbun-
ant to plead the same as reejudieata upon points
in litigation not honestly contested. Mr, Janm
was mistaken when he said that the decree in
6 How., 588, had been reviewed in the case of
12 How.. 587, meaning thereby that it had beea
overruled. It was not only not so. but one of
the justices who assented to the judnnent in
6 Howard, which declares that there had been
a valid marriage between Daniel Clark and
Zullme Carridre, and that she was the legiti-
mate child of that marriage, would not assent
to its being done when he concurred in the de>
cree in 12 Howard.

The decision in 12 Howard does not, either
in terms or Inf erentially, assert that no marriage
had ever taken place between Daniel Clark and

776

esu.s

1S60.

Gainbb y. Henkisk.

558-^dl

the complainant^B mother. The issae in that
case was, that at the time of the complainant's
birth, her mother was the lawful wife of another
man, namely, of Jerome Des Grange.

It was, therefore, essential to the defendants
to f^t rid of the decree which had affirmed the
legitimacy of Mrs. Gaines and of the marriage
of her father and mother, and it was attempted
by a contrivance as extraordinary in its begin-
ning as it was abortive in its result. We will
show what it was from the record, not only on
account of its anomalous character, but because
it is unexampled in jurisprudence.

After having asserted that the decree in 6
Howard had been obtained by the fraud of Pat-
terson and Gkneral Gaines, thus impeaching
the credibility of Patterson in advance, the
defendants, Relf and Chew, introduced him
as their witness (Old Record, pp. 590-594),
and he was examined bv their counsel, first
as to a suit in which Mrs. Gktinee had re-
covered a house and lot from him. After stat-
ing his age to be about seventy, his answer was:
'* It was for a house and lot on which I resided
when the suit was brought; I stil! reside in that
house and lot, and have done so ever since the
suit was brought. Mrs. Gaines succeeded in
the suit, aocorcRng to the Judgment of the court.
That house and lot belong to her, but they told
me they would not take it from me. General
Gaines and liis wife gave me in writinff, under
Uieir hands, that they would not take the prop-
erty from me; that he would make my title
good. The property has always been assessed as
mine, and I have always paid the taxes on it.
I paid most of the costs, but they paid me again
— ^that is, General and Mrs. Gaines. There was
an understanding between us that they would
pay the costs, even should the suit be decided
afffdnst me. They made the same offer to Judge
Martm," In his cross-examination, witness
said he had made the best effort in his power,
with the aid of able counsel, to defeat Mrs.
Gaines in her suit. The cross-examination was
resumed the next day, 20th June, 1849. Pat-
terson was abked to look upon a document
marked A, and to state if he knew the hand-
writing of the late General Gaines; whether the
signature to it was not his; whether he had re-
ceived that, or a communication .of which that
was a copy, prior to withdrawing his dilatory
pleading in the case of OcUnes v. Eelfand Ohew,
and filing your answer to the merits of tliat case.
The defendants, by counsel, protested against
the paper being put into the record, on the
ground that it contained false, malicious and
gratuitous imputations against parties in nowise
connected with the suit. Witness then answered,
that was the signature of Gkneral Games; he
had often received letters from him, and seen
him write, and that he had received two or three
communications, of which that was a copy, t)e-
fore he withdrew his dilatory pleadings m that
case, and answering to the merits. A letter was
then handed to witness, marked B. He an-
swered, the body of it was the handwriting of
General Gaines; was present when he wrote it,
and saw both General and Mrs, Gaines sign it
Then the following question was put to the wit-
ness : "At the trial of your cause with Gaines
and wife, did not vour counsel make a request
of the counsel of Mrs. Gaines to be permitted
to introduce the record from the Probate Court

See 34 How.

of New Orleans, of all the proceedings of Mrs.
Gaines in the prosecution of her rights in that
court?" Witness answers: "Yes, sir; her
counsel objected to that, and I applied to Gen-
eral and Mrs. Gaines to introduce the record.
They replied to me to get all the evidence pos-
sible, the stronger the better. General G^mes
remarked, it would be more glorious to have it
as strong as possible. I then caused it to be
introduce. " Here the cross-examination of the
witness was closed. The counsel for the de-
fendants objected to the foregoing testimony,
and especially to that part which relates the
conversations of the complainants with the wit-
ness, and that part which details what was
done in a judicial, proceeding, on the grounde,
among others, that it is incompetent for the
complainants to make evidence for themselves,
and that what had been dons injudicial proceed-
inge thovXd be shown by the record. And from
that gentleman's accurate knowledge of his pro-
fession, indicated as it has been by the two lines
just underscored, may we not say in the sseal of
professional advocacy, that the best of us may
forget it? For what has been his interrogation
of Patterson but an attempt to invalidate a Judg-
ment against him by the testimony of the most
interested party to have it annulled, without
having made any appeal to the record of that
J udgment ? And Patterson was the defendant's
witness.

But wo have not vet done with this attempt
to prejudice the rights of Mrs. Gaiaes by sug-
gestions that her suit with Patterson was pre-
tensive and fraudulent, and to extract from him
some proof or confession of his own infamy.

After the examination in chief and the cross-
examination had been completed and signed by
the witness, and both counsel had announced
that they had concluded their examination, the
counsel for the defendant made another objec-
tion to the cross examination of Mr. Patterson,
insistinj; that it should be considered as his ex-
amination in chief by the complainant, to which
the defendants had the right of cross-examina-
tion ; and the witness was recalled on the fol-
lowing day for that purpose. Every effort was
then made by many questions to extract from
him some inconsistency with his first examina-
tion, vrithout success. But fortunately for his
own character, he removes the imputation of
fraud and combination between himself and
General Gaines, to give to the latter the benefit
of a collusive judgment in the circuit court
against himself, bv having, in his answer to one
of the questions, alluded again to the documents
A and B, which are now presented as conclu-
sive against the charge that there was ever any
combination between them, by trick or by con-
trivance, or by any deceitful agreement or com-
pact, for a suit to be brought by one against the
other to defraud any third person of his right.
See Old Record, pages 1018 for Document A,
and 819 for letter B. And when the witness
was asked if he had not been particularly re-
quested by the General and Mrs. Gaines to use
his best exertions, with the aid of the best coun-
sel he could employ, to make every defense in
ills power to tliis suit of which it was suscepti-
ble, he answered: Yes, and I did so; and I
considered the agreement with General and Mrs.
Gaines as an act of liberality on their part, grow-
ing out of a desire to come to a speedy trial

777

558-681

SuFftEins Court ov the Unitbd Statbb.

Dec. Tbrm,

with some one or more of the defendants on the
merits of the case.

It was an indiscreet arrangement between
General Gaines and Mr. Patterson, not to be
tolerated in a court of Justice, but not one of
intentional deception in contemplation of any
undue advantage. And it would never have
been made by Keif and Chew, in their answer
to the subseauent bill of the complainant against
them, had tney not been erroneously advised
that the decree in 6th Howard, establishing the
marriage of Clark and Zulime Carrldre, and the
legitimacy of Mrs. Gaines, might be used as rM
judicata afodnni the defendants in the suit of
the 20th January, 1840, and as they now at-
tempt to make the decision in that case a res
judicata agidnst the claims of Mrs. Gaines In
this which we are now deciding.

But what was decided in the case in 12 How-
ard? It is stated, in the language of the de-
cision, " that the first and most important of the
issues presented is that of the legitimacy of Mrs.
Gaines." Then are stated the pleadings under
which the issue was made. It shall be given in
the language of the decision : ' ' She (Mrs. Ghiines)
alleges that her father, Daniel Clark, was mar-
ried to Zulime nde Carridre, in the City of
Philadelphia, in the year 1802 or 1808, and that
she is the legitimate and only legitimate off-
spring of that marriage. The defendants deny
that Daniel Clark was married to Zulime at the
time and place alleged, or at any other time and
place. And they nirther aver that, at the time
the marriage is alleged to have taken place, the
said Zulime was the lawful wife of one Jerome
des Grange. If the mother of the complainant
was the lawful wife of Jerome des Grange at
the time Zulime is alleged to have married with
Clark, then the marriage is merely void, and it
is immaterial whether it did or did not take
place. And the first question we propose to ex-
amine is, as to the fact whether Zulime toas Des
Orange's lawful wife in 1802 or 1808." Then
follows the recital of the marriage between Des
Grange and Zulime, with the record of it, on
the 2a December, 1794, admitted on the part of
Mrs. Gaines. To rebut and overcome the es-
tablished and admitted fact of that marriage,
the complainant introduced witnesses to prove,
" Uiat previous to Des Grange's marriage wiUi
Zulime he had lawfully married another woman,
who was living when he married Zulime, and
was still his wife and, therefore, the second mar-
riage was void, and this issue we are called on
to try."

Then it is said that *' the marriage with Des
Grange having been proved, it was established
as prima facie true that Zulime was not the law-
ful wife of Clark, and the 'onus of proving that
Des Grange had a former wife living when he
marriud Zulime was imposed on the complain-
ant; she was bound to prove the affirmative fact
that Des Grange had committed bigamv. " Then
follows the recital of the testimony of the com-

Elainant to prove that Des Grange became a
igamist by his marriage with her mother. And
then, to '* meet and rebut this evidence, the de-
fendants introduced from the records of the
Cathedral Church of the diocese, to which New
Orleans belonged at that period, an ecclesiasti-
cal proceeding against Des Grange for bigamy,
which respondents insist is the same to which
complainants refer." It is set out in full in the

778

decision, beginning at page 618 in 13 Howard,
extending to 519, inclusive. Then the rebut-
ting testimony of Daniel W. Coxe, for a long
time a copartner in business with Clark, was
mtroducea. He states an antecedent connection
oetween Clark and Zulime to the time of their
alleged marriage, with a confidential letter to
him, which was delivered by Zulime, In which
it was stated that she was pregnant, and that
he, Clark, was the father of the child; further
requesting that he would put her under the care
of a respectable physician, and furnish her with
nloney during her confinement and stay in
Philadelphia; and further, that she gave birth
to a child, who was Caroline Barnes, who be-
fore her marriage went by the name of Candine
Clark, and that what has been related happened
in 1802; and he further states that Clark was
not in Philadelphia in 1803. having gone to
Europe in August, 1802, and having returned
to New Orleans early in 1808. A letter from
Des Grange was introduced, dated at Bordeaux.
July, 1801; also a suit for alimony brought by
Zulime against Des Grange in 1805, which will
be further noticed in the opinion. Then it is
said: "This is substdntiaUy the evidence on
both sides on which the question depends,
whether Des Orange was or was not guti^ ^
bigamy in marrying Maria Julia nee Carriere, in
1794. Objections are taken to several portiooa of
this evidence, and especially as respects the
record of the suitagainst Des Grange for bigamy
in the eoclesiasticin court ** And though this is
followed in the decision by a suggestive, able
and searching commentary upon the objections
made to the testimony of the defendants, and
upon that of the complainant, by connection
and comparison of the two, and upon what was
deemed the law of the case, all of it relates ex-
clusively to disprove that Des Grange was mar-
ried, and had a wife alive when he married
Zulime.

The announced conclusions in that case,
which were seven in number (12 How.. 589).
show it to have been so. It was ** the question
decided/' and was said " concludes this contro-
versy." The factum of marriage between Clark
and Zulime, and the legitimacy of Mra. Gaines,
ss both had been decreed by this court, were
not then disaffirmed, either directly or infer-
entially, and all that was said about it is. "that
the decree of this court in PattermnCs case does
not affect these defendants, for two reasons: 1.
Because they were no parties to it; and Sd, be-
cause it was no earnest controversy."

It is our opinion that the decision made In the
case in 12 Howard was not intended to reverse
the decree in 6 Howard, and that it cannot be
so applied as res judicata to the case we are now
trying.

We will now show the difference as to the
character in which Mrs. Gaines then sued and
that in which she now does, in connection with
the law of Louisiana, as to what oonstitnes a
res atfjudtcata, and what does not

In the first, her demand was for one half and
four fifths of another half of the property owned
by her father when he died. She then clainied
as the donee of her mother to the one half, and
as forced heir of her father to four fifths of an-
other half of his estate. Now she daims ss
universal legatee and legitimate child of her
father, under his will of the 18th July. 1818»

1860.

Gainbb y. Hbnuxk.

56d-68I

which has been admitted to probate by the Su-
preme Court of Louifiiana, and ordered to be
executed as such.

The difference between the two cases is just
that which the law of Louisiana will not per-
mit the decision in the first to be pleaded against
her in this case as a res judicata.

It is declared in the article 2265 of the Louisi-
ana Code, '* that the authority of the thing ad-
judged takes place only with respect to what
was the ol^ect of (he judgment. The thing de-
manded must be the same; the demand must be
founded on the same cause of action; the de-
mand must be made between the same parties,
and formed by them against each other in the
same quaiity"

The case in 12 Howard and that now under
our consideration are dissimilar as to parties and
things sued for, or what is called ' ' the object of
the judgement." The suit now is not between
Mrs.Gkdnes and Belf and Chew, but between her-
self as complainant, and Duncan N. Hennen as
defendant Nothing was said in the first suit of
the claim of Mrs. Gaines under the will upon
which she now sues, as in every particular de-
tailed in the article 2266. There are differences
between her present cause of action and that
formerly made, and the demand now made is
not between the same parties, or formed against
each in the same quality. And therefore,
upon well settled principles coincident with the
article 2205, and also independent of it, nothine
that was said or done in the case in 12 HowarS
can prejudice her claim as she now makes it.
We give the authorities for that position, that
they may be consulted, without being able, for
want of time, to show their application by ex-
tracts.

24 Wend., 585; 14 Pet, 406; 1 Dana. 109; 8
Wend., 27; 2 Sim. & Stu., 464; 6 Wheat, 109;

7 Cranch, 565; 8 East, 846; 4 Gill A J., 860;
Preston v. Sloeomb, 10 Rob. (La.). 861; 1 La.
Ann., 42; 8 La. Ann., 530; 10 La. Ann., 682;

8 Mart. (La.). 465; 7 Mart (La.), 727; 7 Rob.
(La.), 46.

And the precise point was ruled in Burt y.
Sternburgh, 4 Cow., 568. 564, *' that the defend-
ant might haye shown, if he could, that he had
aequir^ a title since the former trial, or any
title other than that which had been passed upon
in the former trial."

We are fully satisfied from the article 2265,
and the cases cited from the Louisiana courts,
and from the English and American reports,
that the objection of res jvdieata, as made
against the recovery of the complainant in this
case, is without any foundation in law.

We have now reached the last and most im-
portant objection made against the complain-
ant's recovery. But before discussing it direct-
ly, we must dispose of the ecclesiasticStl record,
which was much relied upon in the argument
to repel the evidence of her legitimacy, and to
establish the fact that the marriage between
her father and mother was unlawfiu, from her
having been then the lawful wife of Jerome
Des Grange; in other words, that Des Grange
did not commit bigamy when he married her,
by which she was not released from her con-
jugal relations with him, and had not the right
to marry any other man who was free lo con-
tract marriage.

We have seen that exceptions were taken to

See 24 How.

the admissibility of that record as evidence
when it was first presented by the defendant's
counsel in the case before the circuit court.
They were renewed upon the appeal here. They
were continued when the defendants intro-
duced it again in to this case, and it is necessarily
before us to be determined as a question of law,
whatever may have been thought of it hereto-
fore, either by judges or by counsel.

Our first remark concerning it is, admitting
that the canon law. as sanctioned by the Church
of Rome, was in force in Louisiana at the time
of this procedure, it was a mere assumption,
without authority in its beginning, tyrannous
against the object of it, and irregular in its
action. It was a nullity, coram non judiee,
before the canon who issued it. The presbyter
canon who assumed to do so was not Vicar-Gen-
eral or Gh>vemor of the Bishoprick of Louisi-
ana and the two Floridas. He was only the
presbyter canon of a vacant see, without dele-

gation by commission or deputation from a
ishop to represent him in his spiritual offices
and powers. He had no canonical power in his
pastoral charge of a particular church and con-
gregation to orifl:inate a prosecution for bigamy.
Kor would either archbishop or bishop, had
there been either then in Louisiana, have vent-
ured to do so in the condition at that time of
the ecclesiastical practioe and roval ordinances
of Spain especially in their application to its
foreign possessions. And such a procedure was
a direct violation of the Institudones de dereeho
canonieo Americano por El Rev. Sr. D. Justo
Donoso.

The inquisition, as it had existed for more
than a hundred years in France and Italy, was
introduced into Spain by Gregory IX., about
the middle of the 18th century, tt encountered
no opposition there. It at first attained a
prevalence and extension of power larger than
it had exercised before, and was on the increase
when Spain became an united kingdom under
Ferdinand and Isabella. They were authorized
by the bull of Sextus IV. to establish the inqui-
sition in their States. And then it was invested
with jurisdiction of heresies of all kinds, and
also of sorcery, Judaism, Mahomedanism, of-
fenses against nature, and polygamy, with
power to punish them, from temporary cpnfine-
ment and severe penanances to the san benito
and the atUo de je. Before that time the in-
qjuisition had exercised a capricious jurisdic-
tion, both as two persons and creeds. Ency-
clopeedia Britannica, 8 edition, 11th vol., art.
Inqui., page 886. In its new form it met with
opposition. Attempts were made in Castile
and Arragon to repulse its authority and to re-
strain the holy office, as it encroached upon
government and deprived the people of many
of their ancient rights and privileges. Its power,
however, became triumphant, and so aggressive
upon royal authority that it wasreslsted by the
Kings of Spain, as well in the kingdom as in
its foreign possessions.

It cannot be expected that we shall enter
chronologically into such a detail. We will veri-
fy what has just been said by distinct citations
from the laws of Spain and royal ordinances.

The first of these ordinances which we shall
cite is that of Charles I. of Spain(5of Germany),
issued at Madrid on the 21st September, 1580;
Leyes de Indian torn. 1, livre l,tUulo 10,page 48.

779

55a-6di

SlTPBSMB Coom 09 THB tJHmED StATB^.

Dbc. Tsrx,

Charles had been aboufc twelve years ia Spain,
The mines of the West had begun to throw
their treasures into Spain. They were essen-
tial to the accomplishment of the political and
military designs of the King, and to his necessi-
ties also. Complaints were constantly being
made of the rigors of the inquisition upon the
Indians in his western dominions, and upon
his subjects who had emigrated to them in
large numbers in pursuit of ^Id. It was said
but for such causes that the yield of gold would
have been larger. The King determined to re-
strain the holy office in its jurisdiction, and is-
sued his decree of September 21, 1630. We
give Judge Fou^house's translation of it: " We
order the attornevs, police officers, sheriffs, and
other ministerial officers of the prelates and
eeeleaaetiealjtidgeeofour West Indies, Islands,
and continents (Hong the ocean, not to arrest any
layman, or issue any execution against him or
his propertv, for any reason whatever; and we
order all clerks ana notaries not to sign, seal
or take any deposition with regard to the same,
or for any reason thereto relating; and when-
ever ecclesiastical iudges shall judge necessary
to have a person imprisoned or an execution
issued, they shall pray for the roval aid of our
secular justices, who shall grant ft according to
law. And all vicars and ecclesiastical ju(^^
shall observe this order and comply with it, as
is prescribed by this law, under penalty of los-
ing the status and privileges which they enjoy
in the Indies, and of being there held as foreign-
ers and strangers to the same. And any of said
attorneys, police officers, sheriffs, clerks and
notaries, and any other who do the contrary,
shall be forever exiled from all of our Indies,
and all of their goods shall be confiscated for
the profit of our royal treasures; and we hereby
direct and empower all of our justices, and all of
our subjects and settlers, not to consent thereto
and let the attorneys or executing officers do so,
too; and we order that this oroinanoe be ob-
served, any contrary custom notwithstanding.

The ordinance of Charles was followed bv
another of his son, Philip II., which declued,
' ' that whenever in our royal courts of the Indies
the aid of the secular arm shall be asked by
the prektes and ecclesiastical judges, either for
an arrest or for execution, the demand shall be
by petition, and not by requisition." These
royal ordinances will be found in the BeeopilO'
eian in the Indies. They were declared by a
law of Don Carlos II., one hundred and thirty
years after they were promulgated, to be exist-
mg laws, on the 18th May, 1680. See the law
to that effect preceding the Titvlo Primero in
lAbro Primero, fol. 1, BeeapUadon Leyes de
Indies, They have had their places in every
edition of the BeeopHadon since. Indeed, they
were never abrogated, and were in practical
operation in all of the dominions of Spain in
America until she lost them.

They establish satisfactorily that the presby-
ter canon, Hasset, when he issued his prosecu-
tion against Jerome Des Granffe for bigamy
and imprisioned him, that he did so contrary to
law, and that his whole proceeding in the mat-
ter was a nullity, and, as such, inadmissible as
record evidence in a secular or ecclesiastical
court. BeeopHadon Leyes de hs reynos de las
Indies; En Madrid, por Andres Ortega, ano,
de 1774; Tereera Edidon, page 48.

But there are other royal oidinanoes establish-
ing what has just been said in respect to the
nullity of that procedure, because they bear di-
rectly upon the incapacity of the ecclesiastical
power to originate a prosecution for bigamy.

The first of them which we shall cite is a
pedule of March 19, 1754, in which it was de-
clared that polygamy was a crime of a mixed
nature, in which the royal tribunals may take
cognizance in the first instance, with this quali-
fication, that if the inG|uisition wishes to punish
the accused for suspicion of heresy, he shall be
remitted to it after having suffered the legal
penalties. Leyes de Indies, ch. 1, tit. 10, note 2.

But this cedule was modified in 1761 by
Charles III. leaving to the inc^uisition cogni-
zance of this crime, and reserving only to the
secular courts the power to take informations,
and to arrest the accused in order to deliver him
to the inouisition. This concession was made
by the King, who ascended the throne at a pe-
riod peculiarly critical, requiring the concilia-
tion of every agency in his new kingdom to
meet the pressure of political difflculues, and
to allay discontents and suspicions against him-
self, which subsequently became a revolt. He
was charged with being opposed to the inquisi-
tion, from having been on the throne of Naples
for several years, where it had never bem in-
troduced, the people having always resisted iu
establishment over them.

But the prudence of the King did not reB>tiain
the inquisition from the assertion of its Juris-
diction in that and in other particulars offen-
sively to the ancient usuaffes and rights of Spain.
In its eagerness to extend its power, it invwied
the royal authority, and stretched its jurisdic-
tion to every cause in the slightest degree con-
nected with ecclesiastical discipline or pun-
ishment. The King resisted it,and he was soon
furnished with a cause for doing so. The in-
quisition having taken from the auditor of the
army a process instituted against an old veteran
who was accused of bigamy, the jealousy which
the King in fact entertains against the inqul^-
tion was revived. His vigilant minister, d'Ar-
anda, used it to obtain a royal decree, oidering
the process against bigamy to be restored to the
civil or secular courts. It also enjoined up-
on the inquisition to abstain from interfering
with the proceedings of the secular courts; re-
quired it to confine Itself to its proper functions
in the prosecution of apostacy and heresy; for-
bade it to "defame with imprisonment Ms vas-
sals before they were previously and puMicly
convicted," and commands the inquisitor-gen-
end to require the inquisitors to observe the
laws of the kingdom in cases of that idnd; and
further, all the King's royal tribunals, judges,
and justices, were ordered to keep and obey the
decree, and to punish those who should vlolau
it in anv manner whatever. Tliis was the de-
cree of Charles III., of the 5th of February.
1770, cited by Judge Foulhouse in his opinion
upon the nullity of the proceeding against
Jerome Des Orange, by the assumption of the
Presbyter Canon, Hasset, of the Cathedral
Church of New Orleans. For the royal decree
of the 5th February, 1770, cee original the
Novissima Beeopilaeion, Vol. V., p. 4!^: Coxt's
Memoirs of the Kings of Spain, 8d vol., ch. 57.
page 867.

Thus stood the Jurisdiction of the inquiaitioQ

1860.

GktJXES y. Heitnek.

558-681

Id respect to the crime of bigamy restrained hj
royal authority for six years. Complaints were
then made of the uncertainty of the royal ^ed-
ule of the 5th Februar;^, 1770, especialijr in re-
spect to the extent of its interference with the
power of the holy office to inquire for discipline
and for punibhment into cases of polygamy.
The King was induced to call a toro or council,
to discuss the different relations and bounda-
ries between the secular and ecclesiastical cog-
nizances of the crime of bigamy. The result
of that council was communicated to the King
on the 6th September, 1777. It was that a ma-
jority of it had come to a conclusion, that by
the act of marrying a second time whilst the
first wife was alive, the person who does so vio-
lates the faith due to the marriage contract ; that
he deceives the second wife and wrongs the
first; inverts the order of succession, and of the
legitimacy established by the laws, iTUtMiueh
<M his fraud makes the children of the second
matrimony, though truly adulterine, legitimate,
and capable to inherit from their parents on ac-
count of the good faith of their mother in con-
tracting that marriage; further, that the king-
doms of Spain assembled in eortes had estab-
lished penalties against the crime of bigamy,
cammanding that they should be imposed by
the royal courts, and declaring that they should
not be embarrassed in their cognizanee of the
offense; also, that he who marries a second
time, his first wife being living, offends the or-
dinary jurisdiction in maliciously deceiving the
curate OS assist at a null marriage, and that on
that account- there is ecclesiastical jurisdiction
to inquire into the validity or nulht^ of mar-
riages; but that it was to be done without em-
barrassing the royal courts in their cognizance
of the offense. It was then said that such per-
sons may also incur the crime of a false pro-
fession of the sacraments, which was exclusive-
ly within the jurisdiction of the holy office;
which was, however, to be exercised recipro-
cally by it and the secular courts, to prevent
the repetition of the offense by the imposition
of penalties which belong to each, and by the
delivenr of prisoners from one to the other to
be tried. Upon the foregoing report being made
to the King, he gave a royal order to l^ com-
municated to the inquisitor-general, that by his
ceduleof the 5th February, 1770, the holy office
was not impeded in the cognizance of the
crimes of heresy and apostacy, and of persons
declared subject to suspicion of bad conscience
by the violation of apostolic bulls which had
been received and enforced in Spain with roval
consent, in those cases in which the jurisdiction
of them was in the holy office. This royal
resolution was followed by another decree, re-
mitted to the aicaldro and to the chancenr and
audiences of the kingdom on the 20th Febru-
ary, 1782. Nomssima Becopilaeion, page 425 of
Vol. V. ley. 10, note 1, Tercera Edidon,
Madrid, por Andres, Ortega. 1774.

The result of the council, however, of which
we have just given the particulars, did not sat-
isfy the grand inquisitor. Attempts were
made to reassert his assumed jurisdiction in all
its plenitude, both in Spain and its foreign do-
minions. The holy office was on its decline.
This was its last great struggle for existence.
The King had' long resided in I^aples, where the
inquisition was regarded with the same horror

See 24 How.

as among Protestants. Though partaking of
the same feeling, he was too prudent to tram-
ple on the prejudices and opinions of his Span-
ish subjects, or to make a direct attack against
the great engine of ecclesiastical authority. He
had witnessed the danger of precipitate re-
forms and of shocking national prejudices in
matters however beneficial. He adopted in his
long reign the only maxim which could be
pursued with safety, and perhaps the only
means to produce the intended effect. He en-
deavored to check the oppressions, to soften
the rigors, and to circumscribe the authority of
the inquisition, and thus prepared the way for
time and circumstances to produce its total
obolitlon. In the pursuit of this design he was
seconded by the enerey and liberal principles
of his minister, Florida Blanca. The principal
restrictions of de Aranda were gradually re-
vived; and in 1784 the celebrated decree was
issued, which partially subjected the proceed-
ings of the holy office to the cognizance of the
sovereign. It was ordered that no grandee,
minister, or any person in civil or military
service of the Crown, should be subjected to a
process without the approbation of the King.
Thenceforth this formidable tribunal became
feeble in its operations, and was suffered only
to give such displavs of its authority as were
calculated to weaken the public veneration.
Coxe's Memoirs of the Kings of Spain, Vol.
III., pages 596. 527, &c. Under the reign of
the son of Charles, the Prince of Asturias, his
successor in Spain and the Indies, " the inqui-
sition received a still heavier shock, and before
the late revolution it haid become a mere tribunal
of police, to arrest the progress of political,
rather than of religious heresy. " It was finally
abolished in Spain in 1808.

It appears, then, from the royal ordinances
which have been cited, that from the time of
the introduction of the inquisition into Spain
the extent and manner for the exercise of its
jurisdiction were subject to the regulations of
royal ordinances; that it had been so restrained
in p>olygamous cases, its jurisdiction in them
having been confined to inquiries connected
with the validity or nullity of marriages, and
to the infiiction of penances for the violation
of the ecclesiastical law in respect to them. It
had not the power to initiate a process in a
case of bigamy for the punishment of it but in
subjection to the royid ordinances, or to insti-
tute in the Indies, after those ordinances were
gassed, an inquisitorial tribunal concerning it
efore the accused had been convicted in the
secular courts.

Such was the law of Spain in respect to
prosecution for bigamy, and the sunken condi-
tion of the inquisition, when no ecclesiastic,
however high may have been his dignity,
would have ventured to make such a decree as
was issued by the Presbyter Canon of the Cathe-
dral Church of New Orleans against Jerome
Des Orange for bigamy. It had all the form
and more than the vigor of the holy office. It
was entitled " Criminal proceedings instituted
against Gkronimo Des Grange, for bigamy, by
the Vicar- (General and Qovemor of the Bish-
oprick of this Province, and attested by the
notary. Franco Bermudez." The canon sub-
sequently styles himself Canonical Presbyter of
this Holy Cathedral Church, which he was;

781

658-e81

BnPBXMB COTTBT OV THB UNTTBD STATBA.

Dbc. Txbm,

but adds that he was proTisory Vicar-Geaeral
and (Governor of the BiBhoprick of the Prov-
ince, which he was not. This assumption was
eiUier ignorance, or was intended to give con-
sideration to himself or to the prosecution. He
was neither provisor nor Vicar-Qeneral. For
the manner in which those functions were de-
puted by the bishop, we refer to the 8d vol-
ume of the TniHttteiones de D&reeko Canonico
Americano, Appendiee Pnm&ro, pages 894,
895, 89a. 898. The decree purports to have
been issued on the 4th of September, 1802. It
begins by saying that it had been publicly
stated in this city that Ckronimo Des Grange,
who had been married in 1794 to Maria Julia
Garridre, was at that time married before the
Church to Barbara Jeanbelle, and is so now,
who has Just arrived; and also, that Des
Grange, having just arrived from France a few
months since, has caused another woman to
come here, whose name will be obtained. It
is also reported in all the city, publicly and no-
toriously, that Des Grange has three wives, and
not being able to keep it a secret, &c., <ftc.,His
Ezcellency^ has ordered, in order to proceed in
the investigation and the infliction of the cor-
responding penalty, that testimony be produced
to substantiate his being a single man. which
Des Grange presented in order to consummate
the marriage, and that all should appear who
can give any information in the matter, &c.,
Ac, And as it has been ascertained that Des
Grange is about to leave the city with the last
of his three wives, let him be placed in the
public prison during these proceedings, with
the aid of one of the alcaldes, this decree serv-
ing as an order, which His Excellency has ap-
S roved, and as such it is signed bv me, notary,
iefore me, Frakco Bbrmudez.

(Signed) Thomas Hassbtt.
it 18 not necessary to cite any of the proceed-
ings upon that paper, or to speak of the fre-
quently occurring notarial certificates of Fran-
cisco Bermudez. The whole of it, however,
shows that what was done was so under his
contrivance and auspices. The canon, Hassett,
is made to begin as an ecclesiastic in authority,
and signs the decree, but places the execution
Of it and the imprisonment of Des Granf^e up-
on an order of His Excellency. It is twice re-
ferred to in the paper as a part of it. It should
have been produced with the other proceed-
ings. Without that being done, no part of it
can be received in evidence as the record of an
authentic judicial tribunal. The whole paper
is a novelty in the proceeding of an ecclesias-
tical court. His Excellency means the chief
alcalde of the city, who had no legal auChority
under the law of Spain to sanction such a
prosecution, or to order the execution of it,
either by the introduction of testimony or the
imprisonment of the accused. The paper
signed by Franco Cassiergues is insufficient for
that purpose.

The procedure of the holy office in such
cases will be found in the article Inquisition,
in the 8th edition of the EnevdopcBdia Britan-
ntea. Vol. XII., page ,389, It establishes the
fact that the cannon, Hassett, and Bermudez,
intended to proceed against Des Grange ac-
cording to the forms of the holv office, and
that at a time when its functions in such par-
ticulars had ceased in Spain and in the Indies.

782

Those who are curious may also find directioDS
for such a procedure in Bums' Ecclesiastical
Law, and in Ougton's Ordo Judidorum me
MethoduB Procedendo in NeffotOt ei lAtOnu in
foTo EccMaetico OiviU Britannieo ei ESbernko,
2d volume. Mr. Bentham, also, in his BMan-
ale of Judicial Evidence, specially applied to
English Practice, Vol. 11, book 8. ch. 17,
pages 880 to 408, exposes with coirent reason-
ing and admirable satire the artifices of the
early English ecclesiastics, and their success in
getting up a similar initiation of a prosecution
in contravention of English statutes.

Before leaving the paper we have been ex-
amining, it is proper tor us to allude to the tes-
timony of Judge Foulhouse given in this case,
and to his opinion given afterwards in confir-
mation of its invalidity.

When he was examined as a witness, it was
distinctly understood between the parties, and
agreed to, that the defendants might make a
motion to suppress his testimony. That was
not done. We cannot infer from it that the
counsel of the defendants acquiesced in the
witness's conclusion that the paper from the Ca-
thedral Church was inadmissible. as evidence,
but it is certainly good cause for the reliance
placed by counsd in their argument of the
cause upon the learned judo's declarations,
and his support of them by his researches. He
cites from the Partida, 7 tit., law 16; Noriai-
ma BeoopUadon, book 12, tit. 28, law 16; 3V
mssima J?., book 12, tit. 28, law 10; the last
being the ^ule of Charles III. in a case of
imputed bigamy, ordering the inquiator-^ner-
al to direct the inquisitors to take cognizance
of the crimes of heresy and apostacy, bigamv
being considered by the canon law as a kind
of heresy, without assuming to do so '* dy de-
faming the accused wiih imprieonmeni before
they had heea previously and publicly con-
victed."

For the reasons given, supported by the roy-
al ordinances of Spain, we have been brought
to the conclusion that the paper from the Ca-
thedral Church of New Orleans, introduced by
the defendants as a part of their evidence iii
this case, is inadmissible as such, and that all
which it contains must be disregarded by us in
the judgment we shall give.

We finally remark, that our extended exami-
nation of tliat paper has not been made because
of its essential b^uring upon the merits of the
case of the complainant. It was to dlsabose
the record of what did not legally belong to it,
and to correct misapprehensions which might
arise unless its character and import had been
legally diown. Give to it, however, the fullest
credence, and it will be seen that it can have
no effect upon the law of adulterine bastardy,
upon which this case must be decided, which
we are now to consider.

This brings us to the chief objection which
was made m the argument, and most relied
upon to defeat the recovery of the complain-
ant. It is that her ^atus of adulterine illegiti-
macy incapacitates her from taking as l^g^ee
under the olographic will of her father, Uiougfa
admitted to probate, as it has been, by the Su-
preme Court of Louisiana.

It is an averment of the defendant in his an-
swer to the complainant's bill, bat not in re-
sponse to any allegation in it. It changes the

64 U.&

1860.

GAiNsa ▼. Hensbn.

553-631

attitude of the litigants from what it was in
the case of Gcnnes v. Beff and Oheu>, in 12
How., 472. Then Mrs. Qaines had the burden
of proof to establish afBrmativelv the fact, that
she was the forced heir of her father, and the
donee of her mother, his widow. This court
at that time did not think that had been satis-
factorily done, and dismissed her suit, without
affirming for or against the fMtum of marriage
between her father and mother. Indeed, such
a point could not have been made, or be sup-
pose to have been intended to be decided by
the court in the case then in hand, without ex-
pressly overruling its decision in 6 Howard,
that there had been a lawful marriage between
Daniel Clark and Zulime Carriere, ner father
and mother, and that Mrs. Gaines was their
lawful child. To get rid of the force and ef-
fect of that decision, the defendants, having
only charged before that she was the offspring
of an illicit intercourse between her father and
mother, invoked the church papers of which
we have spoken so much, in the hope of estab-
lishing from it that she was an adulterous
bastard. And aeain, with the aid of that
which is not evidence in the case, and with
much that Ib so, they now rely to establish that
charge. Mrs. Gaines meets the charge with
new evidence, relying upon the old siso, and
with the declaration of her father in his last
will, that '*! do hereby acknowledge that my
beloved Myra, who is now living in the family
of Samuel B. Davis, is my legitimate and only
daughter, and that I leave and bequeath unto
her, the said Myra, all the estate, whether real
or personal, of which I may die possessed,
subject only to the payment of ceitain lega-
cies, hereinafter named." And with this pres-
entation of herself, of which she had never
had the proof before, asked that the case
might be Judged according to the evidence arid
the la/WB applieaUe to it. What that proof is will
be arrayed hereafter in its proper place. Now,
we only remark, that the burden of proof is
upon the defendant, and that the law applica-
ble to such a declaration in a will, concerning
a child, requires that there shall be full proof
to the contrary of it, and will not be satisfied
with semi plena probaUo,

But the law regulating the sufficiency of
proof for the disaffirmance of such a declara-
tion in a will cannot be fully understood and
appreciated, unless our recollection shall be re-
vived of the differences made by the ecclesias-
tical law and that of Louisiana as to tiie kinds
of illegitimacy, and the disabilities and privi-
leges attending them. In fact and in law they
differ. The rights and capacities of illegiti-
mates depend upon the distinctions being pre-
served.

If one be a bastard, from having been bom,
as the code expresses it in article 27, of an
^illicit connection, though they cannot claim
the rights of legitimate children, yet if they
have been dulv acknowledged by their fathers
and mothers, leaving no lawful children or de-
8cendanU, they, as natural children, will be
called to the legal estate or succession of the
mother, to the exclusion of her father and
mother, and other ascendants and collaterals of
lawful kindred. And in the case of their
f ather*s succession or estate, they may be called
to the inheritcnce of it when he has acknowl-

Bee 24 How.

edged them, and has left no descendants, no
ascendant, no oolleral relations nor surviving
wife, and to the exclusion only of the state.
But though natural children, and known to be
so, they can take by testament or will from
their father, if bom before their father's will
were made. And here we have the reason, in
the differences of their right of succession to
their fathers and mothers, why Clark made
his olographic will in favor of his lec^timate
daughter Myra; fearing from the clandestinity
of his marriage, and other circumstances at-
tending it, that her legitimac^r would be de-
nied, notwithstanding his habitual and daily
acknowledgement of it. unless it was proclaimed
and avow^ in his will. They take or in-
herit by wills of their fathers, if bom before
the wills were made. As of a devise that B
shall stand seised of land to the use of Jane,
his daughter. This would be a good devise to
her, if she were reputed to be so, though she
Were a bastard, ana not so called in the will.
Dyer, 828, pi. 29; 8. C. Jenk, p. 289; 41 E.,
8-13. But this does not extend to a bastard
bom after will made.

Sid., 149; 89 E., 8-24; 8 Leon, 48; i^t«r'«
case 1 Atk., 410; Bardin v. Staden, 2 Ves.,
Jr., 589; 2 Blodwell v. Edwardi, Cro. Eliz.,
609, 510; Coke Litt., 128, B: Ex parte Wallop,
4 Brown, C. C, 90; KenneU v. AhboU, 4 Yes.,
502.

A bastard in esee, whether bom or unbom,
is competent to be a devisee or legatee of real
or personal estate. The only question in such
a case is, whether, when in esee, the bastard is
sufficiently designated as the object of the be-
quest.

Gordon v. Gordon, 1 Mer., 141; Bayley v.
Snelham, 1 Sim. & Stu., 78; 2 Pow., Dev., by
Jarm., p. 260; Co. Litt., 8-6, and note 1 ; Dyer,
818; Noy, 85; Park, 26; 8 Leon, 48,49.

But we ought to mention in this connection
whether a gift can be made to a bastard not
procreated Is vexata questio. The early authori-
ties certainly lean to the negative. The reason
assigned is, ** that the law does not favor such
a generation, nor expect that such shall be."
EtodweUy. Edtoards, Cro. Eliz., 509; Co. Litt.,

a-6.

So that we see by the foregoing authorities, had
it been proved in this case or in any of the cases
which the complainant has brought for her
rights in her father's estate, that she was the
offspring of an illicit intercourse, which we
affirm it never has been, she would now be in
the condition, from her father's testamentary
declaration of her legitimacy, to take as his uni-
versal iegatee. And if the case was made to
turn upon that now, the complainant would be
entitled to a decree; but it does not.

It is said, as an adulterous bastard, produced
by an unlawful connection between two persons,
who at the time when the child was conceived
were either of them or both connected by mar-
riage with some other person, the complainant
cannot take under the olographic will of her
father, because the Code f oroids it. The articles
217, 222, do forbid the legitimation or acknowl-
edgment by their fathers and mothers of adulter-
ine children. The article, 914, does say that
in no case can adulterine children inherit the
estates of their fathers and mothers — ^that is, as
acknowledged natural children may do, by the

788

953-68t

BUFRBME COUBT OV THS UnTTBD BTATBS.

Dec. Tbbm,

articles 913 and 918 of the Ckxle. And it is de-
clared bv the 1476 article of the Code, "that
natural fathers and mothers can in no case dis-
pose of property in favor of their adulterine or
incestuous children, unless to the mere amount
of what is necessary to their sustenance, or to
procure them an occupation or possession by
which to support themselves. " This is the pro-
hibition upon which the defendants rely to de-
feat the complainant.

The application of it, however, to the case in
liand, was not as fully considered by the learned
counsel for the defendant as it mUht have been.
We will make it, with a decided Louisiana case,
for everything that shall be said, and by author-
ities for every general proposition cited, akin
to the subject-matter.

The article containing the prohibition neces-
sarily intends that the relation of the parties
shall be such as it mentions, before it can have
an effect upon either of them.

Now, we say. first, that the legal relations of
adulterous bastardy do not arise in this case;
for, independently of the declaration of the
will, that the complainant is the legitimate child
of Daniel Clark, this court having decided in
6th Howard that the marriage of Clark to Zu-
lime was valid by reason of the invalidity of
her previous marriage with Jerome Des Grange,
that of course makes the complainant legitimate.
But if it be assumed} as it was in the argument,
that by the decision in 12 Howard, the marriage
of Clark to Zulime was invalid on account of the
validity of her marriage with Des Grange, then
still Myra is legitimate by the law. as the off-
spring of a putative marriage.

The cases from the Louisiana Reports are
conclusive. The articles in the old code, 119,
120, are to this effect, that if both parents, or
either of them, contracted the second marriage
in ^ood faith, the issue of it will be legitimate.
So It was ruled in the case of Olendening v. Oleiv-
dening, 8 Mart.N. 8., 538. The language of that
case is, ' 'that the plaintiff resists the claim on the
succession of his father by a woman he married
in the lifetime of his wife, the plaintiff's mother,
and of the children, if born of tliat woman.
The defendants contend that notwithstanding
the plaintiff's father had a lawful wife at the
time of his second marriage, that as the woman
he last married was in good faith at the time of
the marriage, and ever- since, at least till after
the birth of the last child she had by him, her
marria^ has its civil effects; and that she and
her children, the present defendants, are en-
titled to all the advantages the law gives to a
lawful wife and children. There seems to be
no dispute on the Question of law. The woman
who was deceived by a man who represents
himself single, and the children begot while the
deception lasted, are Ixmaflde wife and children,
and as such are entitled to all the rights of a
legitimate wife and issue." The plaintiff then
urged, that four of the children were born after
the good faith of the woman ceased, as she had
been advised of the illegality of her marriage
by a communication mi^e to her that her hus-
band had another wife living in Tennessee.
The court, however, said the proof of this
knowledge was insufficient to deprive herself
and her children of their rights, though one
witness swore he communicate that fact to her.

The next case come up before the new court

784

organized in Louisiana under the Constitution of
1845. It is that of PatUm v. PhOadelpkia and
New Orleann, 1 La. A.nn., 100. The facts were,
that in 1799 A. Morehouse married Abigail
Townes in the State of New York, and had two
children by her. He subsequently came to the
Spanish colony of Louisiana, and save out that
he was a widower, and married Elenore Hook.
In the act of marriage, he declared himself the
widower of Abigail Townes. Bv the second
wife he had children, and both wive^ survived
him. It was said, " the decision of the late
Supreme Court in the case of Olendening v.
Olendening ei al.,9 Mart. N. 8., 538, in relation
to the good faith of the second wife, is a cor-
rect application of the Spanish law. which regu-
lated the subject-matter at the time of the mar-
riage of the plaintiff's ancestor. By Uie law,
1 title, 13, part 4, it is ordained, that if, after
both parties know with certainty the existence
of the impediment to the marriage, they beget
children, these children will not be legitimate:
yet, if. during the existence of such impedi-
ment, and while one or both of them was ig-
norant of it. they should be accused before the
Judges of Holy Church, and before the impedi-
ment, as proved in the sentence pronounced,
they should have children, those U^otten
during the existence of the doubt will alfbe le-
gitimate. We agree with the plaintiff's counsel,
that the second wife, and all the children con-
ceived during her good faith, have all the rights
which a lawful marriage gives," In this cass.
also, it was said that the second wife was in-
formed of the existence of her husband's first
wife; "but the court answered, the evidence
establishes nothing more than the existence of
a doubt."

We now give the case of AMon ▼. Abeton^
14 La. Ann., 137, decided in 1860. by the Su-
preme Court of Louisiana. Its ruling is coin-
cident with the two previous cases cited, upon
a statement of facts concurring with them, but
more particular in detail.

Olive Abston sued to liave herself recogniznd
as the lawful surviving wife of John AMon.
deceased, late of the parish of Carroll, claiminc
she was entitled to a portion of the property of
his succession. Her son, John K. Abaton, the
issue of her marriage with John Abston, de-
ceased. Joined in the action, for the purpose of
having himself recognized as the legitimate son
and lawful heir to the estate of hte deceased
father. John N. Abston is the exact case of Mn.
Gaines. The suit is against Rebecca Wright, the
third wife of John Abston, dec^ised, vodtke ad-
mimetrator of Ms meeession or eetate. He in-
tervened in his capacity of tutor of Nancy Nix
Abston, the minor child of the defendant, the
issue of her marriage with the decayed, claim-
ing in behalf of the minor the rights of legiti-
mate and forced heir in the succession of John
Abston, her father. Rebecca Wright pleads
in ffeneral denial, and avers that she was law-
fully married to John Abston. deceased, in
Warren countv, in the State of Mississippi, and
that if the plaintiff's alleged prior marriage wss
ever consecrated, it was unknown to her, and
to all other persons residing in the Stale of
Mississippi. She filed, also, a sum^leineota]
answer, averring that her husband, John Abs-
ton, had made in the State of Mississippi hii
will, leaving to her his whole estate, after the

6d U.S.

t860.

Oaihbs v. Hbnnbn.

5Sa<681

payment of his debts, and that the will had been
•admitted to probate in the parish of Carroll, in
Loui^ana.

The facts of the case were these: John Abs-
ton married with Olive Hart, his first wife,
«nd pUdntiff in this suit, in the State of Ala-
bama. John N. Abston, the co-plaintiff in the
suit, and other children, were the issue of that
marriage. John Abston abandoned his family
in the State of Alabama, without having been
-divorced, a vinculo moitrimomi, from his first
wife, contracted a second marriage with one
Susan Bell, and she died. After her death, and
being still undivorced from his first wife,
he intermarried in Mississippi with Rebecca
Wright. In a short time after this last mar-
riage he removed from Mississippi into Carroll
County, in the State of Louisiana, where he
acquirad a new domicil. and where he died, in
which was situated the whole property of his
succession, movable and inmiovable at the time
of his death.

This narrative, and the relations as they had
been given of the parties to the suit, raised two
•questions, which it became necessary for the
court to decide before it gave its opinion upon
the question of the legitimacy of the two sets
of children of John Abston, the bigamist, and
father of them, and the rights of his two wives
in his estate: First, as to the effect of the
probate of the will, it being contended, as that
had been done by a court of competent Juris-
<licUon, that it could not be questioned col-
laterally, nor its validity be inquired into in the
suit. The court declared that the decree of a
probate court ordering a will to be executed
•does not amount to a judgment binding on
those who are not concerned in it, and that
when the will is offered as the title in virtue of
which property is claimed or withheld, that its
validity may be inquired into. Sophie v. Dup-
lessiM, 2 La. Ann., 724; Suecession of Dupuy,
4 La Ann. , 670. The other question raised was,
whether the rights of the parties in the suit
should be determined by the law of Mississippi,
where the marriage of the defendant and the
-deceased had been contracted, or by the law
of Louisiana, where John Abston had his dom-
icil at the time of his death, where his sue-
-cession was opened, and where all his property
was situated. The answer to that question was,
that the laws of Louisiana which regulate the
right of succession make no distinction be-
tween persons who have contracted marriage
in or out of the State, nor the issue of such
marriages, whether born in or out of the State.
If they have the qualities required by the law
in matters of inheritance, they will be recog-
nized as legal heirs. without regard to the places
of marriage or birth.

The court, then, with a proper regard to the
fact that the will which haa been made by
John Abston Via% invalid on (account of its not
having ^ieen cUtested by three toitnesses, and that
the sueeestion was an intestacy, determines that
it could not be regulated by the law of Missis-
sippi, as the plaintiff contended it should be,
the basis of which is the common law, but that
it must be by the law of Louisiana. We pre-
fer to cite its own language as to the similitude
and the differences between them: " The prior
marriage of the deceased with the plaintiff,
which remained undissolved, was a legal dis-

Bee 24 How. U. S., Book 16.

ability under the common law, which made the
uiarnage with the defendant, Rebecca Wright,
not merely voidable, but void ab initio, and
made their issue illegitimate, and incapable of
succeeding by inheritance to the estate of any
one. By the law of this State, Uie disability
of a prior marriage, undissolved, also renders
the second marriage null and void ; hiU the legal
conaequen^ces of a marriage void ab initio under
our Uno are very different from those under th6
common Imo. The Civil Code declares, that
** the marriage which has been null nevertheless
has its civil effects in respect to the parties and
their children, if it has been contracted in good
faith. ]f only one of the parties acted in good
faith, the marriage produces itscivU effects only
in his or her favor, and in favor of the children
bom of the marriage." •* In two cases, some-
what similar to' the present, it has been held
that each wife was entitled at the death of the
husband to one half, as the community prop-
ertv, after the pavment of debts; and this rule
will govern our decision in this case." PaUon
V. Philadelphia, 1 La. Ann., 98; HubbeiU v.
iT^cstein, 7, La. Ann., 253. The mandate of
the court was accordingly given, with this
further decree, that John N. Abrton, the co-
plaintiff, and that Nancy Nix Abston, the minor,
represented by the intervener, are entitled as
heirs at law to the separate property or estate
of their deceased father, John Abston, and the
costs of the appeal were directed to be paid,
one half by the plaintiff, Olive Abston. and the
other half by Rebecca Wright, the defendant.

But in further confirmation of what has been
the Spanish law, and, of course, that of Loui-
siana, in legitimating the children of those who
marry in good faith, believing, upon good
ground, that there was not a precedent marriage
to prevent it, we cite from the Novissima Beco-
piUidon, 5th vol., 425, N. Lev., 10, what was
said in the Council allowed to be held by
Charles III. , King of Spain, in the year 1777, for
the purpose of giving to the inquisitor-general
a better understanding than he profe^ed to
have concerning the King's royal ordinance of
1770, concerning the jurisdiction of the holy
office in bigamy and polygamous cases gen-
erally.

The result of that council, and so recognized
by the King, was: ''That by the act of marry-
ing a second time, whilst the first wife was
alive, the person who does so violates the faith
due to the marriage contract; that he deceives
the second wife and wrongs the first; inverts
the order of succession and of the legitimacy
established by the laws inasmuch as his fraua
makes the children of the second marria^,
though truly adulterine, legitimate, and capable
to inherit from their parents on account of the
good faith of their motlier in contracting that
marriage."

To the same effect is the Code Napoleon. C.
Cer., art. 201, 202. The law of France was ^
before the code. Pothier, Oontrat du Mariage,
Vol. Ill, pp. 172, 107; Toullier, tome 1,698;
Marcadi Explication du Code, tome 1.520; Law
of Spain, Partida, 4 Lex, tit. 18. Vol. 1 ; Dal-
ton's Die, tome 2.372, tit. Mariage, 872.

Thus we see, though a child may be adulter-
ine in fact, it may be legitimate for all the pur-
poses of inheriting from its parents, if one or
either of them intermarried in good faith.

50 78&

508-^81

BnFBXMS COUKT OF THB UNITBD BTATBS.

Dbc Txrm,

Such is the law for others in Louisiana, and
it must be administered accordingly for the
complainant, if she stands in the position, by
the evidence which the law requires and has
determined to be sufBcient to establish a mar-
riage in good faith between her father and
mother, or a»U) either of them, to entitle her to
inherit from either or both of them ae legitimate
by the la/w.

On such a question good faith is first to be
presumed. Marcadi BBcplieaiion.iom. l,pp. 522,
698. As to what constitutes good faith, it is ad-
Judged that to many a second time, supposing
the previous marriage invalid, is one of the
cases of good faith. Dalton's Die, tom. 2, p.
871 ; Tit. Bpain.No. 578. The last two citation?
have been given to show the inaccuracv of the
conclusion of the learned counsel of defendant,
that if the invalidity of the marriage between
Des Granse and the complainant's mother was
not proved, that she was necessarily an adulter-
ine illegitimate.

She was heir at law if procreated by Clark in
good faith, or if conceived b^ her mother in
good faith — that is, she supposing her capacity
to become the wife of the former.

Nor was a sentence of the nullity of the mar-
riage between Des Grange and the complain-
anrs mother necessary to protect the legitinmcy
of the offspring. Marcadi Exptieation, tome f,
p. 495; Ibid. p. 519; 2 Phillimore's Report,
16; Shelf ord on Marriage, Law Library, Vol.
XXXI, p. 275,

The good faith of Clark and Zulime is proved
by the evidence of Madame Despau (Old Rec.,
580). and Madame Calliant (Old Kec., 809), and
by the contemporaneous facts relating to the
marriage, as well as by the testimony of Cavi-
liere (Old Rec, 546) as to the bigamy of Des
Grange, by the testimony of Bellechasse, by
that of Madame Benguerel. Old Rec., p. 849.
The good faith of Clark in marrying is proved
by his own declarations in the last years of his
life. By Bellechasse's testimony. Probate Rec-
ord, 178; Boisfontatne, iMrf. 162; Mrs. Symth's,
Ibid, 1 52. Again : the good fait h of the marriaee is

g roved by the authentic declaration of Clarl in
is will that the complainant was his legitimate
daughter and only child. See, also, the opinion
of the Supreme Court of Louisiana, Olark Sue-
cemon, 11 La. Ann., 124.

But we now say, if we are to consider the
question of adulterine bastardy to be properly
before us in this case, it cannot affect the riffhtu
of the complainant under the will of Clark of
1818. If the complainant, by reason of the mat-
rimonial character of her mother, shall be
deemed adulterine on that side, she is not so on
the side of her father, he having been as a sin
gle man free to marry : and if he did marry in
good faith, she is not incapacitated, as respects
him, to be, under his will, his universal legatee.
Journal du Palais, Vol. LX. p. 45. January 7,
1852.

There is no pretense that Clark was incapa-
ble to contract marriaee; and it matters not
whether, as to the mother of the complainant,
any impediment existed under the Spanish law:
the complainant stands as the declared issue of
her father by a woman to whom he supposed
himself lawlully married. Not only the bill i^
self, but the evidence upon which it is estab
lished, shows that Daniel Clark had no other

legitimate issue. No one exists who has any
right to contest his acknowledgment of the
legitimacy of his child, or to setup the adulter-
ous source of her origin. See 0. N., art 885, 2
Marcadi. pp. 51, 81, 52. Noe. 60-4^2; Jour-
nal du PnUaie, Vol. LX. p. 45; Joberi v. Pitot,
4 La. Ann., 805; Judge Foulhouse's Opin., 57.
58, 2 TouUiers, 960.

The testamentary recognition of a child as
legitimate is of the highest legal authority. All
presumptions are to be taken in favor of such a
declaration. Matthews on Pies. Ev., pp. 284,
286; Qaines v. Chew, 12 How, 508; JftZZer v.
Andrue, 2 L. Ann., 767: Jarman, Wills, Vol
I., p. 188; 5th Phillip's Note, 284, 287. And
authorities cited. 1 Greenl. Ev.. 184. And we
now cite, in confirmation of all that has been
said upon this point, the 117 Nouvelle of Jus-
tinian. It gives the rule of evidence in such
ca8e8,and it prevails in every ecclesiastical court
in Europe, where the Roman law is the basis
of its jurisprudence, in respect to the le^timacy
of persons. It is, also, in cases of that kind, the
law of Louisiana.

We give it in the orignal Latin: '* Adhoc
autem et Ulud eandre peripeximtu, ut n quit fit-
ium auiJiUam habens de l&era mnUere evm qua
nuptia contutere poeeunt, dieat in intirumento,
nvepubUca, mm numu eonecripto et habente tub-
ecripttonem trium tentmm fide dignorum, sice in
testamentoMve in geetis monumentorum^hunc aut
hanc fiUum euum esee^et non atffeeerit naturalem,
ht^juwnofU fiUos, es$e legitimos, et nuUam aliam
probcitionem ab He qucBri, eed omni frui eoe ure
quod legitimis filu nostra eonferunt kgee, " Trans>
lation: *' We have determined to ordain, that
if any one having a son or daughter of a free
woman, with whom he might luve been mar-
ried, shall say in a written act, either before a
public officer or under his own hand, sustain^
by three credible witnesses, or in his lasi will,
or in public act, that this son or this daughter
is his child, and that he does not call them nat-
ural children, they shall be reputed legitimate,
and no other proof shall be demanded of them,
and they shall enjoy the rights of legitimate
children." This Nouvelle has been the subject
of much criticism and learned interpretation
by the most distinguished civilians. By no one
more so than the Chancellor d' Augueaseau, in
his declaration or ordinance of 1786, which bad
for its object, as he himself says, to explain and
affirm the proofs of the legal condition of men.
The declaration consists of forty-two articles
Severel of them relate to the form in which
baptismal acts ought to be registered to give
verity to legitimates; but whether they are &o
or not, this ordinance of Justinan securer to
children legitimacy if they shall be placed by
their fathers or mothers within its preaicament.
And we may add, that the interpretation of it
by all who have been skilled in the civil law hs,
that it attaches legitimacy to the son or daugh-
ter of a man and woman who are both free, but
that it does not demand that the word legitimate
should be applied to them to make them so. Oo
the contrary, the Nouvelle means that if the
child is not called a natural child, he is of right
to be reputed legitimate, and the commentat4ir*s
remark is: " Mark well, that this is not a Roman
law made when paganism reigned in Rome, but
a law made by a Cnristian Emperor.'* Merlin
Repertoire de Juritprudence, 17th Vol, tit.

1860.

Gainkb v. Hbmnbit.

558-631

Legitime, sees. 1, 11. pp. 848, 849; £d. Brux-
eUes, 1827; Question (f^SStol; On la previe testis
maniale ne ftU point admise, tome 8r Causes
OelSbhs MUation Bedamee,8an» cuUe de bapUme,
sansuns Ver^aUepMsessiondrEtattur lefonde-
ment de plueieurs forte eonaectures; tome 19,
Causes Cel^bres, 204.

Such as we have stated it to be is the law re-
lating to the children of a putative marriage,
though it be adulterine in fact, if it was con-
tracted in good faith by the parties, or by either
of them. Their children are leg^itimatei to in-
herit from their parents, either in a case of in-
testacy or to take bv testament. In the latter,
a declaration by either father or mother that
they are their children, without the addition
that they are natural children, will make them
legitimate, and no other proof can be de-
manded of them to enable them to enioy all the
rights of legitimate children. But the case in
hand is even stronger than that, for here the
father in his will " acknowledges his beloved
Myra to be his legitimate and only daughter,"
and makes her the universal legatee of his es-
tate after the payment of certain legacies.

But the defendants aver that the connection
between her father and mother was adulterine,
even though they may have been married, and
on that account that she is barred from taking
as legatee under her father's will.

We will now give the proofs upon which
they rely to substantiate their allegation, in
connection with the voluntary rebutting testi-
mony of the complainant, as we find it in the
record.

The paper from the Cathedral Church in New
Orleans is first invoked by the defendants.
Kow, though that paper has been shown to be
an unauthorized attempt by a canonical preb-
endary, without jurisaiction of any kind in
such a matter, upon a public report, to try Des
Granger for bigamy, for having three wives at
the same time, and to make him answer by im
prisonment, whether such an irresponsible ac-
cusation was true or not true, the defendants,
in our consideration of their averment, shall
have the full benefit of that paper as evidence,
though we have declared it to be inadmissible
as such.

Des Grange, it appears from the paper, was
put in the public prison and kept their until the
canon, Hassett, after having examined several
witnes8es,decreed : that not bein^ able to prove
the public report, he directed the proceeding
to be suspended, to be resumed thereafter if it
should become necessary, and that Des Grange
should be set at large, on condition that he paid
the costs. This he did, and fled from New Or-
leans, without ever again having again any con-
jugal relations with the mother of the complain-
ant, though as it will directly api)ear from the
paper that he was indebted to her for his en-
largement from the canon's usurped authority.
Kor did Des Grange reappear in New Orleans
until after the cession of Louisiana to the
United States.

In the course of the proceedings against Des
Grange, both himself and the complainant's
mother were examined as witnesses. Both of
them reply to questions concerning his bigamy
in respect to his marriage in i794 with her;
acknowledged that they were aware of the re-
port prevailing against him in that regard; and

See 24 How.

she says diat about a year since (in 1801) it was
stated in the city that her husband had been
married at the North, and wishing to ascertain
whether it was true or not. that sne had gone
to Philadelphia and New York, where she used
every exertion to find out the truth of the re-
port, and that she learned only that he had
courted a woman, whose father not consenting
to the match it did not take place, and she mar-
ried another man shortly afterwards; ana she
adds, that she had recently heard that her hus-
band was married to three women, but she did
not believe it, nor had she any doubt about the
matter which rendered her unuuie^ or unhappy.
All of this Des Grange connrms; for being
asked why his wife, Maria Julia CarriSre, went
to the North last year, he answers: '* That the
principal reason was, that a report had been
circulated in this city that he was married
to another woman; &e wished to ascertain
whether it was true, and she went."

Thus the defendants, by the Introduction of
the paper from the Cathedral, diow the exist-
ence and currency of the report of Des Grange's
guilt of bigamy in marrying the mother of the
complainant, and the aggravation of it in the
public mind by the prosecution of him, and
from the canon not having dismissed it alto-
gether, bu^ having retain^ it for further in-
quiry. Upon his enlargement, as has been
proved by unimpeachable testimony, Des
Grange fied.

Now, in this connection, it is appropriate to
state the evidence which the law will receive
and pronounce to be sufficient to determine
that he did commit bigamy when he married
the mother of the complainant. It so happens,
excluding all admission of it to the family of
the mother of the complainant, the fact is
proved by a witness, the truthfulness of whose
testimony has not been assailed, and could not
have been.

Madame Benguerel has no connection with the
family of the oomplaiaanttand her standing and
character were such that the defendants could
not impeach her credit by even an insinuation
against either; but she was subjected to their
cross-interrogation. It brought out neither dif-
ference nor contradiction of herself, nor was
there anything in the way in which she gave
her testimony to subject her to any suspicion of
friendship to the complainant, or of any want
of memory or uncertainty in her narrative.

Madame Benguerel says: '* My husband and
myself were very intimate with Des Grange,
and when we reproached him for his baseness
in imposing himself upon Zulime, he endeav-
ored to excuse himself by saying, that at the
time he married her he had abandoned his law-
ful wife, and never intended to see her again."
In answer to a cross- interrogatory put upon the
point, she says: '* I am not related to the de-
lendants, nor with either of them, nor am I with
the mother of Myra; nor am I at all interested
in this suit." She adds: " It will be seen bv
my answers how I know the facts; I was well
acquainted with Des Grange, and I know the
lawful wife of Des Grange, who he married be-
fore imposing himself in marriage upon Zu-
lime."

The paper then discloses the following facts:
That Des Grange was notoriously charged with
bigmay in marrying Zulime; that she left New

787

653-681

SUPBKMK COUBT OF THB UkITBD STATBS.

Dec. Tkbm.

Orleans '* for the North " in 1801 to get proof of
it; that he says that her principal reason for go-
ing was for that purpose ; that he was prosecuted
for bigamy by the canon in 1803, and was tem-
porarily released from prison after Zulime had
sworn that. she did not believe the report about
him. It is in proof, also, that he then fled
from New Orleans, and did not return to it imtil
the year 1805. Her interference or testimony
befor the canon negatives every suspicion that
she bad any agency in instigating the prosecu-
tion against him. His own oath upon the occa-
sion confirms it, for he speaks of his wife being
satisfied with hia innocence, and there is not a
word in the paper nor in any of the evidence
to show that her friends had provoked or abet-
ted in any way the public accusation of his big-
amy. 'Sot is Clark, the father of the complain-
ant, at all associated with that procedure. In-
deed, he was in Europe at that time. With all
these facts and obvious fnferences from them,
taken in connection with the testimony of Ma-
dame Benguerel, the only question concerning
the bigamy of Des Grange in marrying the
mother of the complainant when he did, is
whether the law determines the evidence to be
Bufidcient in a civil suit to establish the fact.

We think that the law requires us to pro-
nounce that it is sufficient.

A charge of bigamy in a criminal prosecution
cannot be proved by any reputation of marriage.
There must be proof of actual marriase before
the accused can be convicted. But In a civil
suit the confession of a bigamist will be suffi-
cient, when made under circumstances from
which no objection to it as a confession can be
implied. There are none such in this case. The
first legal consequence of such a state of the
evidence is, that it released the mother of the
complainant from all conjugal obligations with
Des Grange, making her free to contract mar-
riage with any other man who was free to inter-
marry with her. But that conclusion is not the
purpose for which we have used, as the defend-
ant wishes it, what the church paper discloses.
The object has been to show that the defend-
ants have introduced that paper in support of
the charge of adulterine bastardy, when in fact
it discloses a condition of thines from which it
may well be inferred that botn the father and
mother of Mrs. Gaines intermarried in good
faith. It is far short of the evidence in the rec-
ord to prove that they did so, which will be
seen presently. Then the next testimony which
the oefendants rely upon to aid in proving the
adulterine status of the complainant is that of
Daniel W. Coze, the friend and copartner in
business with Daniel Clark. His testimony was
originally taken in a previous case to invalidate
the marriage between Clark and the mother of
the complainant. In 12 Howard, as it was in
this case, it was associated with the church pa-
per to sustain the objection we are now consid-
ering. In the argument, it was said that the
two were sufficient to prove it. But take the
testimony of Mr. Coxe as a whole, or in its par-
ticulars, and no part of it has the slightest bear-
ing upon the canon's prosecution of Des Grange,
or upon the objection that the complainant was
the offspring of an adulterous intercourse. Mr.
Coxe b^ins with the history of Caroline Barnes,
giving an account of the preparations which he
had made at the solicitation of Daniel Clark for

788

the confinement of her mother, and then stales
it to be his belief that Clark had never married
her. Beyond this, in regard to the marriage,
he does not speak, except in his offers tbUie
success of his effort to dissuade her from at-
tempting to prove it, and that he did not believe
that Daniel Clark was in Philadelphia in the
year. 1808, when it is alleged that he married
there the mother of the complainant. Many
other circumstances are narrated by Mr. Coxe
in connection with the affairs of Mr. Clark,
and of his acknowledgment of Caroline Barnes
as his illegitimate chud. But after the closest
examination of them in connection with the
point of adulterous bastardy, and that Clark
and Zulime, after the birth of Caroline, were
married in good faith, there is not a word in
Coxe's testimony to impeach the fact of mar-
riage, or the fidelity of the parties in entering
into it.

The defendant also gave in evidence a letter
written by Bellechasse, from Matanzas. to Coxe.
in reply to one from the latter. Coxe had writ-
ten to Bellechasse at the instigation of Mr. Relf.
requiring him to dispose of fifty-one lots In fa-
vor of Caroline Barnes, to the exclusion of the
complainant, for whom they were confided by
Clark to him for her benefit. This Bellechasse
refused to do. He then states what had pre-
viously passed between Relf and himself con-
cerning these lots. He had before given to
Relf his renunciation of any ownership of them,
with directions to dispose of them for Myn.
stating what had passed between himself and
Clark upon the subject, as he has related it in
his testimony. Prolmte Record, pages 173 to 18S.
inclusive, answer to 18th interrogatory. This
letter does not relate in any way to the marriage
between Clark and the complainant's mother,
or to their alleged adulterous intercourse. It,
however, confirms the honorable character of
Bellechasse, and strenghtens all that he had said
of Clark's declarations to him of the Intimacy
of his daughter Myra, and of hia intentions to
make her tne heiress of his estate. This letter
seems to us to have been introduced into this
case by the defendants, with some expectation
that it might serve to make Bellechaase's testi-
mony equivocal, and also to associate both Myra
and Caroline as the adulterine offspring of Clark
and Zulime. The attempt, in our view, is s
failure as to both. The complainant's alalia
depends upon the evidence in this case. That
of Caroline Barnes, notwithstanding the decla
rations of Coxe that she Is the natural child of
Clark by Zulime, must be determined by the lav
as to what were the relations between her mother
and Des Grange when she was conceived and
bom. The witness, Madame Despaa, says that
she was at the birth of Caroline, and that it took.

Elace in 1801. Mr. Coxe says, to the best of
is belief, that she was born m the year IdOt,
but without any of those attendant circam-
stances which give even a coloring to the correct-
ness of his chronology as to the event of which
he was speaking, anowith one proceeding from
himself, which diows how little reliance can be
put upon the accuracy of his memo^, either a»
to the time when he says Mrs. Des Grange vn-
sented to him Clark's letter to have her taken
care of in her confinement^ as she was with <^ld
by him, or as to the time of the birth of Caro-
line, or as to Clark's visits to PhiladetphiA im-

I860.

Gaines ▼. Hsnnbn.

558-681

mediately preoedine his departure for Europe
in the year 1802. in Mr. Coxe's second exami-
nation, he states it had heen disclosed to him
by his correspondence with Clark that the latter
had been in Philadelphia from late in 1801 to
the last of April, 1802, all of which time Zulime
was there; that it was in April that Clark re-
turned to New Orleans, and afterwards that he
had revisited Philadelphia in July, 1802, on hie
way to Europe; thus confirming the statement
of Madame Despau in those particulars. In the
absence of all contrary proof, either bv circum-
stance or deposition, the declaration of Madame
Despau as to the time when Caroline Barnes
was bom must be received to establish that fact.
And that being in the year 1801, however much
it may be suspected that she was the child of
Clark, and even that he supposed her to be so,
she must be considered in law to be the child of
Des Grange, the gestation of her mother and
the birth of the child being within the time be-
fore any interruption had Mien place of their
conjugal relations. That is proved by evidence
introduced into the case by the defendants.
The first is the power of attorney of the 26th of
March, 1801, given by Mesdames Caillavet, La-
sabe, and D^pau, authorizing Des Grange,
their brother- in-law, to proceed to Bordeaux, in
France, to recover property of which they were
co-heiresses of tiieir father and mother. Next,
bv a general power of attorney, which Des
Granjpe at the same time gave to Zulime to act
for him in all affairs during his absence. She
did so in several particulars, styling herself the
legitimate wife and general attorney of Don
Gkronimo Des Grange. Des Grange accepted
the power given to him. sailed for France in
April, and on the 1st July. 1801, wrote from
Bordeaux to Clark to aid his wife with his ad-
vice, should she be embarrassed in any respect,
and expressed his uneasiness that he had not
yet heard from her; saying, also, that he was
then enj^aged in a " lawsuit for the purpose of
recovenng an estate belonging to my wife and
family." Now, under such a chronology of
ciroumstances and of conjugal amity, we need
not say that as access between man and wife
is always presumed until otherwise plainly
proved, and that nothing is allowed to impugn
the legitimacy of a child short of proof by facts
showing it to be impossible that the husband
could have been the father of it. the law, then,
establishes the relation between Des Grange and
Caroline as having been that of father andlegiti-
mate child,and that she was not the offspring of
an adulterous commerce between Clark and Zu-
lime; thouffh Coxe says she was. and reaffirmed
substantially in his letter to BeilechaHse, as we
gather from his answer in his refusal to turn
over property to Caroline which was received
by him from her father for Mrs. Gaines. See
letter in page 896 of Record of Gainer v. Hennen.
The defendants also gave in evidence an au-
thenticated record from the County Court of
New Orleans. It was introduced by them, and
declared by them, in their answers to the com-
plainant's bill, to be a petition by her mother,
Zulime nee Carriere, wife of the said Des
Grange, to a competent Judicial tribunal in New
Orleans, praying for a divorce and dissolution
of the bonds of matrimony existing between her
and Des Grange, which was su&quently de
creed after the birth of the complainant. But

See 24 How.

th^ now urge and declare that such record
and decree prove nothing in the case. In our
opinion it proves much, though differently
from what it was introduced for. Their coun-
sel now says, that the record was deficient in
the petition and, therefore, that it does not ap-
pear that its object was the annulment of the
marriage between Zulime and Des Grange on
account of his bigamy. The petition is want-
ing; and why, has not been satisfactorily shown
by the defendants. They knew it to be want-
ing when they introduced the record of evi-
dence, and on that accoimt cannot now repudi-
ate it for what it contains, because that is
against the purpose for which it was intro-
duced. It shows that a petition was filed ; that
a curator was appointed for Des Grange; that
he was summoned to answer for Des Grange;
that he appeared and demurred to the iurisaic-
tion of the court in cases of divorce, and on that
account that the court could not pronounce a
judjpnent therein, and that the damages prayed
for in the petition could not be assessed until
after the court had rendered judgment touch-
ing the validity of the marriage. There was a
joinder in demurrer, wliich, ho<^ever,was with-
drawn, and the curator filed the general issue.
The docket entries in the suit, kept by the
clerk, are in conformity with the Act of April
10th, 1805, section 11. They are as follows:
Petition filed June 24, 1806. Debt or damages,
$100. Plea filed 1st July. 1806. Answer filed
July 24, 1806. Set for trial 24th July. The
witnesses are stat^, and the costs given. And
then follows Judgment for plaintiff, damages
$100, July 24, 1806. Now this extract, of so
many particulars, makes out as well as it could
be done the purpose of the petition, and estab-
lishes consistently, as It is required to be done,
by the rules of evidence for such a case, that
the marriage between Jerome Des Grange and
Zulime. or, as otherwise named. Marie Julia,
rUe Carriere, was thereby declared null and
void. But the defendant's counsel says, that
the record is inoperative for any purpose, inas-
much as it was a proceeding at the instance of
Zulime in her maiden name,, three years after
her alleged marriage with Clark. It is forgot-
ten that a judicial invalidation of marriage at
any time, for the bigamy of a party to it, relates
back to the time of the marriage, and places
the deceived in a free condition to marry again,
or to do any other act as an unmarried woman,
without any sentence of the nullity of the mar-
riage. The evidence, too, shows that the pro-
cedure by Zulime against Des Grange origi-
nated in her anxiety to place herself in that
condition in respect to her marriage with Clark,
which he had enjoined upon her to keep secret
until a sentence of the nullity of her marriage
with Des Grange had been obtained. She could
not, under such circumstances, use Clark's name
in such a suit; she could not have sued in Des
Grange's when disclaiming the validity of her
marriage with him; and therefore her counsel in
filing her petition used her maiden name, as it
was proper and professional in them to do. One
thing is certain.that the record from the County
Court of New Orleans does not in any way sus-
tain the charge against this complainant of adul-
terine bastaray. but adds another circumstance
to the many which exist in pwrnf ^^llw mar-
riage between her father and mother, and of

789

65»-681

BnFBXMS Ck>UBT OF THB UlTITBD STATBS.

Dec, TfiXM,

the good faith with which they entered into it.

To confirm what has just been said, we wili
now cite the evidences of it:

** Madame Despau testifies that she was at
the marriage of ^ulime and Clark in 1802 or
1808; that it took place in Philadelphia, and
the oeremoney was performed by a Catholic
priest, in the presence of other witnesses as well
as of herself She staters that she was present
when her sister gave birth to Mrs. (Raines; that
Clark claimed and acknowledged her to be his
child, and that she was bom in 1806. That the
circumstances of her marriage with Daniel Clark
were these: Several years after her marriage
with Des Qranee, she heard he had a living
wife. Our famny charged him with the crime
of bi^my in marrying Zulime. He at first de-
nied It. but afterward admitted it, andfied from
the country. These circumstances became pub-
lic, and Mr. Clark made proposals of marriage
to my sister, with the knowlea^ of all our fam-
ily.'* The witness then crmtmues her narra-
tive, that it was considered essential, before the
marriage should take place, that proof should
be obttuned from the Catholic church in New
York of Des Grange's bieamy, it being there
that his prior marriage had taken place. They
went there; found that the registry of mar-
riaffes had been destroyed. Clark followed them,
ana having heard that' a Mr. Gardette in Phila-
delphia had been one of the witnesses of the
prior marriage of Des Grange, and he told them
that he had been present at the prior marriage of
Des Grange; that he knew him and his wife;
that the wife had sailed for France. Clark
then said, "you have no reason any longer to re-
fuse to marry me; it will be necessary, how-
ever, to keep our marriage secret until I have
obtained juaicial proof of the nullity of your
marriage with Des Grange." They were then
married.

Such judicial proof was subsequently ob-
tained, as has already been shown. Another
witness, Madame Caillavet, confirms the state-
ment that Clark made proposals of marriage
for Zulime to her family, after her withdrawal
from Des Grange, on account of her having
heard that he was the husband of another wo-
man then alive. She also swears that Clark ad-
mitted the marriage to her. and that so did Zu-
lime. Clark also made an acknowledgment of it
to other witnesses, with simultaneous declara-
tions to them of the Intimacy of Myra ; and his
paternal treatment oi her from her birth to his
death impressed them with the full belief of the
fact and of the sincerity of the purposes for
which he made such declarations. Mrs. Harper,
who nursed Myra, not as a hireling, but as the
friend of Clark, says that he made to her, at
different times, declarations of the child's legit-
imacy and of his marriage with her moUier.
Ho admitted it also to Boisfontaine, and added
that he would have avowed the marriage but for
her subsequent marriage to Gardette. Pressed
upon by such proofs, every effort was made
by the most searching and repeated cross-ex-
amination to lessen the force of ^em, without
success. Failing in this, a direct attempt was
made to discredit their veracity by an impeach
mcnt of their characters. It was a signal fail-
ure. Forty years of their lives were canvassed
to bring upoft them some reproach. The proofs
to the <^ntrary were decisive. They, too, had

7»0

had their misfortunes; but their lives had been
passed in the different places where Uiey had
lived, not only without censure, but altogether
free from suspicion. Their testimony was also
put in comparison with that of Mr. Coxe. Tliey
do differ in immaterial circumstances, but in
nothing concerning the marriage between
Clark and Zulime. All that Coxe had been
able to say about that was, that he did not be-
lieve it. That conclusion, too, he came to by
inferences from his own narrative coooeming
the time of the birth of Caroline Barnes; that
he withdrew afterwards, as to the time of its
occurrence, and also as to his declaration, tliat
Clark had not been in Philadelphia in the year
1801, extending his sojourn there for more than
four months, whilst Zulime and her aunt were
in search of proofs of the bigamy of Des
Grange. The evidence also shows that Clark
aided their inquiries for that purpose. Besides
the want of memory of Mr. Coxe, his narrative
shows so strong a tiias against the marriage that
we must receive it with many grains of allow-
ance. After Zulime had obtains a sentence of
the nullity of her marriage with Des Grange,
she went to Philadelphia to learn the truth of
reports which were in circulation concerning
the fidelity of Clark to herself. She had an in-
terview with Coxe; told him her purpoee, and
her intention to proclaim her marriage with
Clark, unless she became satisfied upon that
subject. He told her that she could not prove
the marriage, and afterwards advised her to
take counsel of a lawyer. He, of course, dis-
suaded her from any attempt to do so. At the
same time Coxe afl^gravated her distress and
hopelessness by tellTnff her that Clark was then
engaged to marry a My of distinction in Mary-
land, which, whether true in the particulsn
of his narative of it, or as a general report,
there is no proof in this record; but it served
ills purpose m disuniting Zulime and Clark for-
ever. Clark was then m the height of his pop-
ularity .and distinction in the Congress of the
Unitra States. His friend sheltered him from
the disclosure. Mrs.' Harper, as a witneK to
Clark's admission to her repeatedly of the mar-
riage, was cross-examined severely,* but without
any effect, to diminish the weight of her testi-
mony in chief. Bellechasse and Boisfontaine.
in their subsequent examinations, adhered to
what they had at first sworn, and their char-
acters forbade even a suspicion of its not being
true.

Failing in every attempt to lessen the proof
of the marriage, it was suggested that all of
these witnesses were in combination to estab-
lish it by perjury. The defendant's counsel had
himself extractea from their answers that they
had no interest of any kind in the result of the
suit. They are protected by the rules of evi-
dence from any such imputation. There wss
no foundation for it.

The marriage, then, having been proved, the
only point remaining, is, whether it waa con-
tracted in good faith by the parties to it We
see no cause for thinking that it waa noi en-
tered into in good faith. Supposing it. how-
ever, not to have been so by Ziuime, on account
of her not having sincerely believed in the in-
validity of her marriage with Des Grange, that
could not take away the complainant's right to
inherit her father's estate under his olographic

ttr. s.

1860.

Gainbs ▼. Heniobn.

558-681

will of 1818, if it has not been fully proyed, as
the roles of evidence in such cases require it to
be done, that he did not manr in ^ood faith.
The doubts, which may be indulged in respect
to Zulime's sincerity, cannot apply to him. He
was an unmarried man, never had been married,
when he united himself to Zulime, and the
weight of testimony in the case is, that he did
marry her in good faith. His conduct to his
child from her birth to his death, his frequent
•declarations of his marriage to her mother, and
of her legitimacy, and his avowal of it in his
last will, are conclusive of his having married
in good faith. The law applicable to such cases
requires us to say so.

We have not thought it necessary to give all
the evidence in this case in detail, but have ac
•curately done so as to all of it bearing in any
w&y upon the points in controversy, and es-
pecially as to that having any connection with
the charge of adulterinebastardy. Those who
may have any curiosity to read the testimony
in full, will And it in what is called the Probate
Record ; also in the cases as they are reported
in 6 and 12 Howard, particularly in the old rec-
ord of the last case.

Our judgment is, that by the law of Louisi-
ana Mrs Gfunes is entitled to a legal filiation as
the child of Daniel Clark and Marie Julia Car-
ridre, begotten in lawful wedlock; that she was
made by her father in his last will his univers-
al legatee; and that the Civil Code of Louisi-
ana, and the decisions and Judgments given
upon the same by the Supreme Court of that
State, entitle her to her father's succession, sub-
ject to the payment of legacies mentioned it the
record. We tthaU direct a mandate to be issued
€iceordingly, with a reversal of the decree of
the court below, and directing such a decree to
be made by that court in the premises as it
ought to have done. Thus, after a litigation of
thirty years, has this court adjudicated the prin-
•ciples applicable to her rights in her father's
•estate. They are now flnaTly settled.

When, hereafter, some distinguished American
lawyer shall retire from his practice to write
the history of his country's jurisprudence, this
•case will be registered by him as the most re-
markable in the records of its courts.

DECRBB OF THE COUBT.

This appeal having been heard by this court
upon the transcript of the record from the Cir-
•cuit Court of the United States for the Eastern
District of Louisiana, and upon the arguments
of counsel, as well for the appellant as for the
-appellees, this court, upon consideration of the
premises, doth now here adjudge, order and
decree, that the decree of the said circuit court
be, and the same is hereby reversed, with costs;
and that such other decree in the premises be
passed as is hereinafter ordered ana decreed.

And this court, thereupon proceeding to pass
«uch decree in this cause as the saia circuit
-court ought to have passed, doth now here
order, adjudge and decree, that it be adjudged
and decreed and is hereby adjudged and de-
•creed upon the evidence in this cause, that
Myra Clark Gaines, complainant in the same,
is the only legitimate child of Daniel Clark
in the said bill and proceedings mentioned.
And as such was exclusively invested with
the character of such legitimate child, and en-
dee 84 How.

titled to all the rights of the same; and that
under and by virtue of the last will and testa-
ment of the said Daniel Clark, the said Myra
Clark Gaines is the universal legatee of the said
Daniel Clark, and as such entitled to all the
estate, whether real or personal, of which he,
the said Daniel Clark, died possessed; subject
only to the payment of certain legacies therein
named.

And this court doth further order, adjudge
and decree, that all property described and
claimed by the defendant, Duncan N. Hennen,
in his answer and exhibits thereto annexed, is
part and parcel of the property composing the
succession of the said Daniel Clark, to wit: the
same which Richard Relf and Beverly Chew,
under pretended authority of testamentary ex-
ecutors of the said Daniel Clark and of attor-
neys in fact of Mary Clark, by act of sale, dated
December 2{5, 18*20. conveyed to Azelic La-
vigne: which the said Azelic Lavigne, by act
of sale of the 29th of February, 1886, conveyed
to J. Hiddleston, and which the said J. fiid-
dleston by Act of the 27th May, 1886. con-
vejred to the New Orleans and Carrolton
Railroad Company, and which the said Com-
pany, by act of sale on the 18th of May, 1844,
conveyed to the said Duncan N. Hennen, the
defendant in this cause; that the said Richard
Relf and Beverly Chew, at the time a&d times
when, under the'pretended authorityliforwaid,
the^ caused the property so described and
claimed by the defendant, Hennen, to be set up
and sold by public auction on the 19th day of
December, 1820, and when they executed their
act of sale aforesaid of the 28th of December.
1820, to the said Azelic Lavigne, had no leeal
right or authority whatever so to sell and dis-
pose of the same, or in any manner to alienate
the same; that the said sale at auction, and the
said act of sale to Azelic Lavigne in confirma-
tion thereof, were wholly unauthorized and il-
legal, and are utterly null and void; and the
defendant Hennen. at the time when he pur-
chased the property so described and claimed
by him as aforesaid, was bound to take notice
of the circumstances which rendered the act-
ings and doings of the said Beverly Chew and
Richard Relf. in the premises, illegal, null and
void; and that he. the said Hennen, ought to be
deemed and held, and is hereby deemed and
held, to have purchased the property in ques-
tion, with full notice that the said sale at auc-
tion, under the pretended authority of the said
Richard Relf and Beverly Chew, and their said
act of sale to said Azelic Lavigne, were illegal,
null and void, and in fraud of the rights of the
person or persons entitled to the succession of
the said Daniel Clark.

And this court doth further order, adjudge
and decree, that all the property claimed and
held by the defendant, Hennen, as aforesaid,
now remains unclaimed and undisposed of as

Eart and parcel of the succession of the said
Daniel Clark, notwithstanding such sale at auc-
tion and act of sale in the pretended right or
under the pretended authority of the said Rich-
ard Relf and Beverly Chew.

And the court doth further order, adjudge
and decree, that the complainant, Myra Clark
Gaines, is the legitimate and only child of the
said Daniel Clark, and universal 'legatee under
his last will and testament, is justly and law-

791

558-681

BUFRXMB COUBT OF THB UhITBD STATBS.

Dec, Txsm^

fully entitled to the property aforeBaid. so
claimed and held by the defendant, Hennen,
together with all the yearly rents and profits
accruing from the same since the same came
into the said defendant's possession, to wit : on the
t8th of May, 1844, and for which the said de-
fendant is hereby adjudged, ordered and de-
creed, to account to the said Myra Clark Gaines.
And the court doth now here remand this
cause to the said circuit court for such further
proceedings as may be proper and neoeaaary to
carry into effect the following directions; that
is to say :

1. To cause the said defendant, Hennen,
forthwith to surrender all the property so
claimed and held by him as aforesaid into the
himds of the said Myra Clark Gaines, as a part
of the succession of the said Daniel Clark.

2. To cause an account to be taken by the
proper officers of the court, and under the au-
thority and direction of the court, of the yearly
rents and profits accrued and accruing from
the said property since the 18th of May, 1844,
when it came into the possession of the defend-
ant, Hennen, and to cause the same to be ac-
counted and paid to the said Myra Clark
Gaines; the account to be taken, subject to the
laws of Louisiana in cases of such recovery as
is now decreed in favor of the said complainant.

8. To give such directions and make such
orders from time to time as may be proper and
necessary for carrying into effect the foregoing
directions, and for enforoine the due observ-
ance of the same by all parties and by the offl-
oers of tibe court.

Mr. Justice Catron* dissenting:

A principal question in this case is, how far
it is affected by the decree in the case of Oaines
and Wife v. Chew, Eelf, and others, reported in
12 Howard.

In that case the complainant sought to re-
cover: first, four fifths of the real estate of
Daniel Clark, alleged to be vested in the com-
plainant, Mrs. Gaines, as heir of Daniel Clark;
and second, the undivided moiety of the real
estate owned by Daniel Clark at his death, be-
ing the community interest taken by his
widow, the mother of the complainant, Myra,
from whom she obtained a conveyance for said
moietv in 1844. In the former case this court
found that Mrs. Gardette, the mother of Mrs.
Gkiines, was the wife of Jerome Des Grange (in
1802 or 1808), when the bill alleged she inter-
married with Daniel Clark, and was, therefore,
not the widow of Clark; and this moiety of the
estate claimed by the bill was rejected.

2. It appeared in the former case, by the ev-
idence furnished by the record in that suit, that
Caroline Clark was the sister of Mrs. Gaines,
bom before the father and mother intermar-
ried, as is alleged by the former bill ; but she
was fully recognized by the father as his ille-

fitimate daughter, and was sui)ported by him
uring his Uptime, and after his death oy his
friends. The deposition of Mr. Coze proves
these facts very fully.

Conceding the fact that the parents intermar-
ried after Caroline's birth, then that marriage
made Caroline a legitimate child of the mar-
riage, and equal heir with Myra; such being
the law of Louisiana. Nor could the father,
by the laws of that State, take from his legiti-

7»2

mate child more than one fifth part of his n«
tate by devise. Civil Code of 1808, ch. 8. sec.
1. Ajid therefore Caroline and Myra each-
took as heir four fifths of their fathers estate,
less the mother's moiety; that is, four aharea
each of twenty parts. On these portions the
will of 1818 did not operate; the children
holding the estate as heirs. It operated only
on the two twentieth parts which Daniel Clark
had the power to devise by his will. Civil
Code, 282, sec. 8; 284. sec. 4.

Caroline, who intermarried with Doctor
Barnes, was a party respondent to the former
suit, and answered the bill. She has sincedied
beyond the Jurisdiction of the court, and is not
a party to this controversy; still, the interest
of her absent heirs is entitled to protection.
Nor can Mrs. Gaines set up any claim to that
interest.

As respects the claim to one tenth part, the
next question is, whether the fact found in the
former case, that the complainant was the
daughter of Des Grange's wife, establishes the
stcUus of Mrs. Gaines, so that she is excluded
from taking as devisee of Daniel Clark.

According to the provisions of the Code of
1808, this court held that Mrs. Gaines could
not take as heir of her father; nor could she
take her mother's grant by the deed of 1844.

By the laws oiLouisiana, as they stood in
1818, the complainant was an adulterous bas-
tard, and could not inherit from her father
(Code of 1808, p.*156, art. 46), which declares^
that *' bastard, adulterous, or incestuous chil-
dren, even dulv acknowledged, shall not enjoy
the right of inheriting from their natural father
or mother." And article 16, page 212, declares,
that "natural fathers or mothers can in no
case dispose of property in favor of their adul-
terine children, even acknowledged, unless to
the mere amount of what is necessary to their
sustenance, or to procure them an occupation
or profession by which to support themselves."

'The only issue decided in the former suit
was, whether the complainant's mother, for
years before, and at the time of Mvra's birth,,
was the lawful wife of Jerome Des Granee.
The court so found and based its decree, dis-
missing the bill, on that fact. The fact being
established, carried with it all the le^ const'-
quences that result from the fact 1st Stark.
£v., 182, sec. 57. One of these consequences
is, that Mrs. Gaines was an adulterine bastard,
according to the laws of Louisiana, and incap-
able of tsJ^ing by the will of her father.

But suppose this consequence does not fol-
low; then how does the matter of estoppel
stand? The complainant, Mrs. Gaines, bv her
amended bill, filed in 1848, renounced all
claim that she had to the property sued for by
her original bill (including the same sued for
now), as instituted heir of Daniel Clark, bw the
will of 1818, and asserted a right to four fiftb»
of said property as legal or forced heir and
only legitimate child of Daniel Clark, and de*
dared she would not rely on said will of 1813.
O. R., p. 85,

She also virtually renounced as heir ooe
moiety of the estate Daniel Clark died pos
sessed of, and set up a deed from her mother for
the moiety as lawful widow of said Clark; tfaia
being her community interest by the lawa of
Louisiana. Old R, p. 82.

1860.

Gaihbs ▼. Hbnnbn.

558^81

That the widow was entitled to a moie^ as
her i^are in the community, is alleged ana re-
lied on by the foregoing amendment; and the
complainant being the party who made the
avow^, is irrevocably bound by it. Such is
the statute law of Louisiana, declared by the
Code of 1808 (p. 814), and the Code of 1825
(Vol. II, p. 856).

In the former case the avowal was matter of
title, and in this case it is conclusive evidence
of the fact avowed as a^nst the complainant.
The law of Louisiana binds the federal courts
in like manner that it is binding on the state
courts. So this court has uniformly held. 1
Stat, at L.. 92; note {a) to 84th sec. of Judici-
ary Act of 1789.

If the mother was lawful widow of Clark,
then her right to the moiety was undoubted, as
the parties resided in Louisiana, and it is al-
leged the propertv was acquired during the
coverture. Mre. Gaines must abide by her alle-
gations in the former suit, as on them the issues
were formed, and on which the decree in that
suit proceeded

Nine of ten parts of Clark's estate was
sued for by the former bill. The decree re-
jected, on a direct issue, five ninths claimed to
have been acquired by deed from said mother,
on the ground that she was the wife of Des
Grange, when, as is alleged, she intermarricKi
with Clark, and when me complainant was
bom. This was the precise issue made, and
found by the court, and is undoubtedly ret ju-
dicata as respects the mother's moiety. As to
the other five tenths, Mrs. Gaines, by her amend-
ed bill of 1848. in express terms renounced one
fifth to the purchasers, under Daniel Clark's
will of 1811. To the extent of one fifth, the
validity of that will was recognized. The com-
plainant cannot be allowed to split up her claim
and sue for portions by several suits.

The remaining four fifths of the moiety Mrs.
Gaines claimed to recover as legal or forced heir.
Heir, or no heir, was the issue tried. This court
found that she was Clark's daughter by Des
Grange's wife, and not Clark's lawful heir, and
therefore dismissed her bill. It follows, that
as to the four fifths of one half, the complain-
ant stands barred as heir by the decree. She
is also estopped by the former proceedings to
sue a second time for the moiety derived from
her mother, and thirdly, is estopped to set up a
claim to the one tenth part she renounced and
abandoned.

An objection is raised that the parties in this
cause are not the same who were sued in the for-
mer case. The bill alleges that they are the
same; and so they are, except that Mr. Hennen
claims under the railroad company, by a convey-
ance of the land in dispute, made pending the
former suit, which, if it had been decided
against the railroad company, would have bound
Hennen, and being decided in favor of the
company, have bound the complainant.

The rule in chancery proceedings is, that
where there are contesting parties in each suit,
as between these parties, a decree is res judicata.
It was also held by this court at the present term
in the case of Thompsany, BoberU, 24 How..288.
{fikfUe, 648.) Sixty defendants were sucmI by Uie
former bill: thev all, as joint respondents, got a
decree against the complainant on her common
title set up against them all. The estoppel op-
Bee 24 How.

erated against her for each defendant; and in
this second contestation of the same title any one
respondent to the former suit can set up the es-
toppel in his favor.

The laws of Louisiana are confidently relied
on as prescribing the true rule of estoppel. In
this Enfflish bill in e<)uitv, resorted to here, aa
a remedy, the rule is, that the same subject-
matter cannot be litigated twice between the
same parties on evidence brought forward or
left out of the first case. Here the will of 18ia
is introduced, and could Just as well have been
introduced in the former suit. The difficulty
was, that it had not been proved and recorded
in the probate court. But it might have been
proved Just as well forty years before the time
it was admitted of record as now. If a title
deed could not be read on the hearing for want
of being recorded, the complainant might fail
to recover. This is of constant occurrence ; stilU
the Judgment or decree would be as conclusive
as if the deed had been authenticated and re-
corded. It was simply a neglect of the com-
plainant to produce her proof in legal form ; a
matter with which the defendants had no con-
cern. Holding back an existing will and mak-
ing an experiment on the issue of heirship, re-
quiring the same proof, and, in case of failure,
to bring a second suit on the established will,
is a mere contrivance and an evasion of the due
administration of Justice, which cannot be al-
lowed. On the will of 1818 the present bill is-
founded. By that will Daniel Clark declares the
complainant, Myra, to be his only legitimate
and lawful heir, and devises to her all his es-
tate. She must, therefore, have been his daugh-
ter, born in wedlock. Conceding this to be
true, and it follows as a consequence that the
complainant took as heir, and not as devisee,
to the extent of four fifths. As to four fifths
of a moiety, we are bv this bill called on to try
the precise issue of heir, or no heir, that we
tried in the former suit.

If the decision reported in 12 How. be over-
thrown, ruin must be the consequence to very
many who have confide in its soundness. Id
a rapidly growing city like New Orleans, much
of the property supposed to be protected by our
former decree must have changed hands. Large
improvements must have been made in the nine
years since that suit was decided. It covered
all Daniel Clark's estate as it existed at hia
death, and had overaixty defendants to it. If
the twenty odd defendants to this bill can be
recovered against, so can the others who were
parties to the first suit.

It is most manifest from this record that the
fra^ent of a cause brought here by Mrs.
Gaines and Mr. Hennen by stipulation, will, in
effect, decide, and was intended to decide, the
cause of the other defendants sued Jointly with
Mr. Hennen, and who are standing helpless,,
awaiting their fate at the hands of this court.

It is insisted by counsel, ^at Clark, being a
free man, could lawfully devise to his daugh-
ter; and that the laws of Louisiana did not ap-
ply to the case of a single and free man bia-
qiieathing to his child by a married woman, as
was done here. Such "a construction would
evade the Code to a great extent. Its terms are
too plain for controversy, and so the courts of
Louisiana have held. Jung v. Dorioeourt, 4
La., 178.

79a

558-681

SUPBBKB OOUBT OF THB UNITBD BTATOe.

Dec. Tbsm,

Aooordini; to this assumption, slaves might
be devisees, if the evasion was used to suppress
the fact that the mother was a slave. As in
case of other conveyances, wills must have a
grantee capable to take by the devise; and it is
undoubtedly true that the heir at law, or a dev-
isee, holding under a fonner will, can plead
and prove the facts of incapacity by parol evi-
dence, and thereby defeat the last wiU, and of
course alienees, in the condition these respond-
ents are, can do the same. The case above
cited (4 La., 178) is directly to this point, and
to the same effect it was held in Bobinett v.
Verdun, 14 La., 542. There, the court de-
clared that a disguised donation to a slave child,
under the forms of a sale, was absolutely null.
But the right and justice of this cause de-
pends on the defense of the plea of bona fide
purchaser set up bv the answer. The bill in
chancery is a remedy peculiar in its character,
when resorted to in the federal court held in the
State of Louisiana. In the state courts there, this
defense is unknown. But when a complainant
resorts to it to enforce rights to lands in the feder-
al court, the respondent can defend himself, as an
innocent purchaser, if he pleads, and can show
that he acquired by purchase at a fair price, and
got an apparent legal title, without notice of an
outstanaing better title, the purchaser believing
that he acquired full property in the land ; and
the question is. has the respondent here made
out such a defense? The purchase was made
from Mary Clark, in 1830, bv her legally con-
stituted attorneys in fact. Chew & Relf. She
claimed to be the true owner by a will made to
in her favor as instituted heir. It is an olo-
graphic will, in due form, fully proved, and reg-
ularly recorded. This will, from the time it was
Erobated in 1818, stood as the true succession of
Daniel Clark for more than forty years. An
immense estate in lands and personal property
has been acquired under it, by all classes of in-
nocent purchasers, without any suspicion of the
fact that any other and better title existed. It is
admitted on behalf of the respondents, by stipu-
lation in this cause, that each purchaser who
bought in 1820, and every subsequent purchaser
under the first one, bought for a full price, paid
the purchase money, and got a rei^ular convey-
ance for the land purchased. This title, tested
by itself, was a perfectly fair, legal title, accord-
ing to the laws of Louisiana. Imples^e v. White,
6 La. Ann.. 514. If Mary Clark sold the estate
without an authorization from the court of
probate, by that Act she rendered herself liable
to pay the testator's debts; but this did not af-
fect the purchaser. He was not bound to know
that any debts existed, nor to see to the appli-
cation of the purchase money. The present bill
^oes not allege that there were any debts owing
by Daniel Clark at the time of his death ; on the
•contrary, the complfdnant sues for the lands,
•and the rents and profits of them, without any
reductions. Finding Daniel Clark's estate to be
insolvent on the accounts exhibited, General and
Mrs. Gaines, by their amendment of 1844, de-
clare that they do not require of said Chew &
Relf any account, and that they "discontinue
their prayer to that end."

The complainant admits the existence and
probate of the will of 1811, but denies.in gener-
al terms, that the sales were lawfully made.
For more than forty years the respondents and

794

their alienors had a regular legal title, traceable
to the only then existing succession of Daniel
Clark; thev could sue for and recover the land
by force of that title. They knew nothing of
the existence of Myra. She was bom in New
Orleans in 1804 or 1805. and immediately after
her birth was taken from her mother by Daniel
Clark, her reputed father, and put into the
charge of Col. and Mrs. Davis. In her child-
hood she was carried to the State of Pennsyl-
vania, raised up and resided there till 18S3.
when she intermarried with William W. Whit-
ney, under the name of Myra Davis; during all
which time she was inorant of her true name,
history and rights. She so states in her first
bill, filed in 1836. put in evidence in this suit.
Of course the purchasers of the lands sued for
could have no Knowledge of the complainant'^
existence when they paid their money and took
title, in 1820.

But the respondents would have been bona
fide purchasers had the will of 1811 never ex-
isted. Mary Clark was the apparent legal heir
of her son in Uie ascending line. Daniel Clark
was known and recognizi» in New Orleans as
an unmarried man ; he had resided there from
his youth, and was extensively and uncommon-
ly well known, having represented the Terri
tory of Orleans in Congress. A number of wit-
nesses prove, and most conclusively, that he
was deemed and recognized universally as a
man who had never been married up to the time
of his death. His father was then dead, and
MaiT Clark, his mother, recognized as fail un-
doubted heir. He addressed and made propo-
sitions of marriage to ladies of his own rank,
after it is pretencfed he had married Madame
Des Grange. Those who purchased in 1890.
including judges of the highest rank residinc
on the spot, could not doubt the validity of
Mary Clu'k's title, and power to sell the lands
they bought and paid for.

In the printed argument submitted to us on
behalf of the complainant, and again on the
oral argument delivered before us in this ooart.
the answer to this apparentlv complete defense
was, that Mary Clark was dead in 1820. when
her attorneys made the sales, and conveyed in
her name.

The bill alleges no such fact, nor does the an-
swer refer to it. But the complainant, bv her
bill of 1848, in evidence here, states that Marv
Clark died in June or July. 1^, leaving a will,
alleging who the legatees were (of which the
complamant was one); and some of these legat-
ees are made defendants to that bill. Daniel
W. Coxe ^proves the circumstances connected
with making the will of Mary Clark, and says
she died in 1828, in which year her will was
dulyproved and recorded in Philadelphia Coon-
ty. Pennsylvania.

It is also relied on that Mary Clark did not
accept the succession by taking possesnon of
the estate in legal form. She made her power
to sell, and did sell, and gave possession to the
purchasers, and they have held actual adferae
possession under their conveyances since 1890.
This is admitted of record ; and it is now too
late, after the lapse of thirt}[-five years before
they were sued, to set up this technical ob}ec
tion. The presumption in favor of regnlanty
in the proc^ing is too clear to admit of con-
troversy.

1860

Gaines ▼. Hknnxst.

IS58-681

Another objection is made to this plea of bona
fide purchaser, namely: that Chew & Relf had
no authority from the probate court to sell, and
that they ^ned with Mary Clark in the con-
yevance. The conveyance of Bfary Clark was
▼alid, notwithstanding this circumstance, as the
Supreme Court of Louisiana held in DupUsm
V. WhUe, 6 La. Ann., 614. She held the actual
legal title. The will operated as a conveyance
in the same manner that a private act of sale
would have done. It is proved that the sales of
the estate were made at auction, and had the
form of sales made by authorization of the court ;
this is the fair presumption; nor can the com-
plainant at this late day have a decree against
Iheae respondents. Presumption that the execu-
tors were duly authorized to make sales for pay-
ment of debts comes instead of proof. This bill
was filed more than thirty years aifter Mrs. Oaines
became of age, and thirty-six vears after the
first vendor purchased and took title, in 1820;
and it must be presumed that the proper orders
of the probate court were granted. The pre-
umption arises from possession and lapse of
time. Possession of itself is, in the nature of
men and things, an indicium of ownership. If
all persons acquiesce in the possession, the ac-
quiescence tends to prove property in the pos-
sessor; and after the lapse of th&ty years the
probabilities so increase, that courts of Justice,
for the safety of society, hold an adverse claim
to be without foundation. He who thirty years
ago may have been abundantly able to show
regularity of proceedings and evidence of own-
er^p, may be unable to do so now. His wit-
nesses may be dead, as is emphatically the case
here. His title papers may be destroyed or lost;
and a court of equity must say, as the Supreme
Court of New York did in the case of McDonald
V. McCaU, 10 Johns., 880, "The fact is pre-
sumed for the purpose and from a principle of
quieting men's possessions, and not because the
court really think a grant has been made." Or,
as the Supreme Court of Tennessee said in the
case of Hanet v. Peek, Mart. & Terg., 286, "In
such case, length of possession supplies the
place of testimony; presumption is substituted
lor belief; we believe when the fact is proved;
we presume in the absence of proof."

Had Mary Clark's devisees sued this pur-
chaser, he could have relied on presumption to
supply proof of regular orders from the probate
court to authorize the executors to sell, or that
Mary Clark regularly accepted the succession;
and the same presumption must prevail against
Uiis complainant

It is provided by the 7th section of the Act
of March 26, 1810, that contracts of sale of real
property in Louisiana shall be recorded in the
office of the parish Judge where the property
is situated; and if not so recorded, the contract
shall be void. It is admitted in this case that
both the power of attorney from Mary Clark,
and the deeds to purchasers made under that
pow6r were not recorded in the office of the
probate judge, but that thev were recorded in
a notary s office in New Orleans; and it is as-
sumed, and the cause is made to depend mainlv
on the fact, that the sales of Chew & Relf,
as attorneys of Mary Clark, are null as to third
persons for this reason. 'This is an entire mis-
take. The Act of 1810, section 7. never had

Bee 24 How.

any application to the Pariah of Orleans, where
the land in dispute lies. It "had reference to
those parishes where the office of parish Judge
was established, combining with the Judicul
powers of the officer those of notary and
recorder of mortgages," Ac. "These powers
were not possessed by the Judge of the Parish
and City of New Orleans. The law is not
applicable to this parish, and has been so con-
sidered ever since its enactment." Morris v.
Crocker, 4 La., 149. It is further held, that
the notarial offices of the city were the proper
offices in which the record was to be made.
lb. In this, and all other respects Mary Clark's
conveyance was regular.

The evidence shows, that as against the re-
spondents to this bill, the claim set up is gross-
ly unjust. Clark's failure was very mrge; his
estate was wholly insolvent. The purchasers
have, in fact, paid his debts to a large amount.
Many of them are yet unpaid. The purchasers
have built houses and raised families on the

Property now sought to be recovered. A city
as been built upon it It has probably in-
creased in value five hundred fold since 1820;
much of it certainly has.

That the respondents have been harassed
with a previous lawsuit for the same property,
in whidi the complainant claimed as neir, and
was defeated, neither helps her case nor lessens
the hardships imposed on the respondents.

At the argument, conclusions of law and of
fact were relied on as having been established
by the case of PaUenon v. &aine$, reported in
6 How., 666. That was a false and fictitious
case made up bv Oaines and wife, with the assent
of Patterson, they having relinquished to him
the property sued for. 'The object of that suit
was to circumvent this court by a fraudulent
contrivance to obtain an opinion here, to the
end of governing the rights of the other de-
fendants sued Jointly witn Patterson. And in
this, General and Mrs. Gaines seemingly suc-
ceeded. They obtained both the opinion and
decree they soueht; but when the other defend-
ants came to a hearing, they examined Patter-
son as a witness, and proved and exposed by
his testimony the contrivance and fraud prac-
ticed ; and for us now to declare that so gross a
contempt to this court, and the practice of a
fraud so disgraceful to the administratton of
lustice, established any matter of fact or any
binding principle of law, would be to sanction
and uphold that proceeding, and to invite its
repetition. That case should be disregarded,
as it was disregarded, when the cause or which
it was part was fully and fairly heard in 1852,
and which is reported in Howard vol. 12.'

By an amendment to their bill made in 1849
(12 How., 687), General and Mrs. Gaines had
the boldness to allege and claim that the de-
cree in Patterson's fictitious case was re» ju-
dicata, and an estoppel to the other defendants
to that suit; and to that end relied on the de-
cree on the final hearing in 1852, thereby avow-

l.'-The cose of Lord v. Veaxle,8 How., 258, is full
to the point, that a flctitlons prooeedinir is void be-
cause there is no contest. Patterson did not act in
the matter at all, further than to lend his name to
General and Mrs. Gaines. They made up the case
by ftlinir the answer to their own bUl— flUnff such
evidence as suited their purposes ; and bringing up
the appeal to this court in Fatterson's name.

958-681

SupBBMS Court of tbx Unitbd Statbb.

Dec TmsLM,

ing the fraudulent object of obtaining that de-
cree.

A question not directly decided in the case
reported in 12 How., was whether Daniel Clark
married Mrs. Des Grange. Madame Despau
swore that she was present as the marriage in
Philadelphia, and that several otheis were
present. Her integrity and credit as a witness
were so directly oyerthrown in the former case
by the deposition of Daniel W. Coze, and by
many circumstances, as to leave her evidence
of no value. She swore that she went to Phila-
delphia with her sister to procure evidence of
Des Grange's marriage previous to marrying
her sister. Coze proved beyond doubt that the
two women came there* for the sole purpose of
concealing the birth of a child, of which Mrs.
Des Grange was pregnant, and of which she
was very soon delivered, and it was secreted
and raised to womanhood near Philadelphia.
This was Caroline, afterwards Mrs. Barnes.
And as soon as Mrs. Des Granse was able to
travel, the two women returned to New Or-
leans. Me. Despau also swore in several de-
positions that this was Des Grange's child. At
the time of its birth he had b^n absent in
France for than a year. Clark sent Mrs. Des
Grange to Mr. Coze with a letter, saying the
child was Clark's, and to provide for the mother,
and take charge of Uie child, which Coze
did. It was suggested at the argument that
Coze was not a competent witness, and not al-
together entitled to credit. Clark's estate
owed Coze largely and if Mrs. Gaines recovered,
then Coze ezpected to be benefited by the re-
covei^. So that he was interested to uphold
Mrs. Gaines' claim; nor has the deposition of
Mr. Coze been objected to; on the contrary, it
is admitted by stipulatiou. R., 08.

Mr. Coze's character for integrity is promi-
nently manifest bv sustaining facts.

Clark never admitted the marriage to any
one entitled to credit, or who could be believed,
when swearing to what a dead man had said.

He proposed to marry another lady in 1^8,
and Mrs. Des Granee and Madame Despau
came to Philadelphia, and sent for Mr, Coze,
then in partnership with Mr. Clark in large
mercantile transactions, and inquired of him
whether the fact was true. Coze assented. Mrs.
Des Grange said that Clark had promised to
marry her, and that she then felt at liberty to
marry herself; and soon after, she was manied
to M. Gardette, a dentist of Philadelphia.

In 1805 Des Granj^e returned to New Orleans,
and was sued bv his wife for alimonv. She
recovered, and hid a decree against him for
$500 per annum. Mrs. Des Grange never as-
sumed that Clark was her husband, so far as we
are informed from any reliable source. She
resided in Louisiana for many years, and until
these proceedings had progressed for fifteen
years and more and could have deposed to
the fact of marriage, had her daughter seen
proper to ezamine her as a witness; but this was
not done.

It is altogether immaterial, however, whether
Clark did or did not marry Des Grange's wife,
as it could be of no value to the complainant
if he did. Clark must have been an innocent
and deluded party to give Mrs. Gfdnes the
benefit proposed by the will of 1818— as in the
case of an adventurer from abroad, marrying

7»6

an innocent single wonum, leaving a wife be-
hind him. There, the children of the second
marriaee cannot be disinherited and con-
demned; they can take as bastards from the
mother. So the courts of Louisiana hold. But
what are the facts here? Clark acted in con-
cert with Mrs. Des Grange and her sisters in
sendine Des Grange to France, as agent of his
wife's family, to settle up the affairs of an es-
tate of theirs at Bordeauz. Des Grange was
absent about fifteen months, and in the mean
time, and shortly before the ezpiraticHi of the
time» Mrs. Des Grange was delivered of the
child Caroline at Philadelphia, which Clark
admitted at all times before his death was his
child. This is an undisputed fact. Clark acted
as the friend of Des Grange, and corresponded
with him dm ing his abMnoe, and aided his
wife. The criminal connection that was ez-
posed by the birth of the child had obviously
ezisted before Des Grange was sent to France;
and in the transaction of sending him away,
and of prosecuting him on his return, Mra. I)ea
Grange* her two sisters, and Clark, were un-
doubtedly acting in conjunction. Madame
Caillavet swears that she set on foot the prose-
cution against Des Grange. 13 How., 509, 510.

That Des Granse had a wife living when be
married the complainant's mother, was a mere
pretense to cover a nefarious transaction, as is
abundantly established by the facts appearing
in the case reported in 12 Howard. 'The idea,
therefore, that Clark was an innocent, a de-
luded party, is wholly inadmissible, and must
be rejected as the least sustained part of this re>
markable case.

I am of the opinion that the decree of the
Circuit Court should be aflirmed.

ifr. Justice Gx*ler, dissenting:

I wholly dissent from the opinion of the
majority of the court in this case, both as to
the law and the facts. But I do not think it
necessary to vindicate my opinion by again pre-
senting to the public view a histoij of the
scandalous gossip which has been buned under
the dust of half a century, and which a proper
feeling of delicacy should have suffered to re-
main so; I, therelore, dismiss the case, as I hope,
for the last time, with the single remark, that
if it be the law of Louisiana that a will can be
established by the dim recollections, imagina-
tions, or inventions of anile gossips, after forty-
five years, to disturb the titles and possessioos
of bona fide purchasers, without notice, of an
apparently indefeasible legal title, " Hctudeqtti'
dem inmdeo, miror tnagis7*

Also dissenting, Mr, Chief Jtuiics Tane/.

Cited-78 U. 8. (6 Wall.), TOT, 7W, TIT, 607.718. 101 ;
104 U. S., 406 ; 3 Woods, «3 ; 10 BIsb., 216; 2 McC^
43T; 2 Hughes, 187. 1S8.

THOMAS J. DAVIDSON, F^, in Br..

WILLIAM L. LANIER. CunKor of Jobk J.
McMann, Deceased.

Praeiioe an motion to diami$9 — wAo^ noHee to be
given to plaintiff in error or appelianL

•4 U.S.

1660.

Dayioson y. Lanibb.

It is the pmotioe of this court to hear motions to
<]lsmi88, on the day assiimed for business of that
description, before the case is reached in the regu-
lar call on the docket.

Notice on the motion must be flriven to the plaint-
iff in error or appellantflonflr enough before the mo-
tion is heard to give him opportunity to contest the
motion. '

The lenarth of notice must depend upon the dis-
tance of the counsel or party from the place of
holdinfrthe court, and must be long enough to en-
able him to arrange his business and reach the
oourt.

Distant counsel cannot be expected to attend the
court merely to guard against the possibility of a
motion to dismiss.

Where there is no proof of the actual service of
the notice, and the case is so late on the docket that
it could not be reached during the term, the mo-
tion will be continued to the next term, then to be
heard on thirty days' notice, where the counsel re-
side in Mississippi.

Motion aUd Feb. IS, 1861. OorUinued Mar. 14,

1861.

IN SRROR to the District Court of the Unit-
ed States for the Northern District of Missis-
sippi.

The question involved is stated by the court.
Mr. Brent, for defendant in error.
Mr. Davis, Attorney of Record, for plaint-
iff in error.

Mr. Chief Juftiee Taney delivered the opin-
ion of the court :

A motion has been made in each of these
cases to dismiss it for want of jurisdiction, on
account of certain defects, as it is alleged in the
process and proceedings made necessary by the
Act of Congress, in order to bring it before this
court.

It is the practice of this court to receive and
hear motions of this kind on the day assigned
for business of that description, before the case
Is reached in the regular call of the docket.
And the rtde has been adopted, because it
would be unjust to the parties to delay the de-
cision until the case is called for trial, if the

See 24 How.

court are satisfied that they have not Jurisdic-
diction, and that the case must be ultimately
dismissied without deciding any of the matters
in controversy between the parties.

But in order to prevent surprise upon the
plaintiff in error or appellant, the court have
always, where the motion is made in advance of
the regular call, directed notice to be given to
him or his counsel, and reauired proof that it
was served lon^ enough before the motion was
heard to give him an opportunity of contesting
the motion if he desires to do so. And the
time required must depend upon the distance
of the counsel or the party from the place of
holding the court, and must be sufficient not
only to enable him to make the Journey, but to
arrange business in which he may be engaged
when he receives the notice. For when a case
stands so late upon the docket of this court as
to give no reasonable proof of reaching it dur-
ing the term, it cannot b^ expected that distant
counsel will leave their usual place of business
and attend here to guard against the possibility
of a motion to dismiss.

The motions, in these two cases, were made
about three weeks before the close of the term
but as soon as could be conveniently, after they
were docketed, and the court directed the usual
notice to be given. We are satisfied that the
counsel for the defendant in error has used
every means in his power to comply with the
order. But he has no proof that it was actually
served. The counsel and the client both reside
in Mississippi, and the cases stand so late on the
docket that a trial could not be expected at this
term. Nor could they anticipate that there
would be any reason for their attendance. Un-
der these circumstances the court order that the
motions be continued, to be heard on the first
Friday in next term, provided notice of the mo-
tion and the day of hearing be served on the
party or his counsel, thirty days btfore the com-
meneemeni of the term.

797

End of Yolumb 65.

APPENDIX.

THESE actions were brought to obtain in junctions prohibiting the erection of bridges over the
Passaic River, which were authorized by the Legislature of New Jersey. The complain-
ants were owners of vessels The circuit court dismissed the bills. On appeal to the Supreme
Court of the United States, the decree of the circuit court was affirmed of necessity, the court
being equally divided. No opinion of this court was. therefore, written. Since these causes
were thus disposed of, however, the remarkable development of the great commercial interests
of the country would seem to have rendered the report of the able argument of the eminent
counsel engaged, as well as the exhaustive treatment of the principles involved by His Honor,
Mr. Jfutke Grier, of too great practical value to excuse its omission from these reports. — Ed.

CHARLES E. MILNOR, Appt,,

THE NEW JERSEY RAILROAD AND
TRANSPORTATION COMPANY, and
THE PROPRIETORS OF THE BRIDGES
OVER THE RIVERS PASSAIC a»d
HACKENSACK.

DAVID BIGELOW, Appt,

THE NEW JERSEY RAILROAD AND
TRANSPORTATION COMPANY.

CHARLES E. MILNOR, Appt,

THE NEWARK PLANK ROAD AND PER-
RY COMPANY, AND THE PROPRIE-
TORS OP THE BRIDGES OVER THE
RIVERS PASSAIC and HACKENSACK.

(Not found to haw been hitherto reported.)

Bvery brldgre may be said to be an ot>8truotion on
the channel of a liver ; but it is act, necessarily, a
nuisance.

The court has no power to arrest the course of
public improvement, on account of their efTects on
the value of property, appreciating it in one place,
and depreciating it in another.

If special damage occurs to an individual, the law
gives him a remedy.

But he cannot recover in a court of law or equity,
special damage, as for a common nuisance, uF the
erection complained of be not a nuisance.

A bridge authorized by a State cannot be treated
as a nuisance under the laws of that State.

The Dolice power of a State includes the regula-
tion of highways and bridges within its boundaries.

Congress has never assumed the exercise of such
a power, nor has it, by any legislative Act, con-
ferred this power on the courts.

The United States has no common law offenees,
and has passed no statute declaring such an erec-
tion a nuisance.

A court cannot, by arbitrary decree, restrain the
erection of a bridge, or define its form and propor-
tions. These are subjects of legislative, not Judicial,
discretion.

It is a power which has always heretofore been
exercised by State Lejyrialatures over rivers wholly
within their Jurisdiction.

The case of Pennsylvania v. Wheeling Bridge Co.,'
54 U. S., 679, considered.

The question, whether the power to regulate
bridges over navigable rivers wholly within the

bounds of a State, could be exercised by it below a
port of entrv, and whether the establishnyent of
such a port cud, ipso facto, devest the State of such
a power, was not in the Wheeling Bridge case, and
therefore, not decided.

Congress has the exclusive power to regulate com-
merce, but that has never been construeid to include
the means by which commerce is carried on within
a State.

Congress has never attempted to regulate canals,
turnpikes, bridges and railroads.

When a city is made a port of entry. Congress does
not, thereby, assume to regulate its harbor or de-
tract from the sovereign rights before exercised by
each State over its own public rivers.

Congress may establish poetofflces and post-roads,
but this does not alfect or control the absolute pow-
er of the State over highways and bridges.

Congress, by conferring the privilege of a port of
entry upon a town or dty, does not come in conflict
with the police power of a State exercised in bridg-
ingher own rivers below such port.

The police power to make bridges over its public
rivers. Is as absolutely vested in a State as the com-
mercial power is in Congress.

The court has jurisdiction to administer the relief
sought here,if complainants have shown themselves
entitled to it.

History of the legislative and other transactions
connected with the right of the •* Proprietors of the
Bridges over the Rivers Passaic and Hackensack,**
given.

The " Proprietors of Bridges," &o.. have no mo-
nopolv for building bridges within the boundaries
specified in the New Jersey Act.

If the proprietors had the sole right to build
bridges and take tolls, their whole franchise might
have been condemned by the Legislature, under
their right of eminent domain.

The Railroad Company has not covenanted or
agreed with the complainants, or those under whom
thev claim, that\he railroad bridge over the Passaic
shall be forever fixed at Center Street.

Argued Dec. 5, 6, 7, 10 dh 11, 1860. Cur. ad,
mUt, Meh. U, 1861. Decided Jan. 27, 186£.

APPEALS from the Circuit Court of the Unit-
ed States for the District of New Jersey.
The above three cases involved the same ques-
tions and were argued and decided at the same
time in this court. The cases are stated with
sufficient fullness in the opinion of Mr. Justice
Grier, delivered in the court below, and in the
following brief for the appellants.

Messrs. George Harding^ and Cortland

Parker, for appellants:

The complainants pray injunctions against
two bridges, as proposed to be built on the River
Passaic, one by the New Jersey Railroad and
Transportation Company, the other by the
New York Plank Road and Ferry Company,

709

Appendix.

upon three distinct grounds, all applying to the
railroad bridge, two of them to the plank road

1} bridge.

' ' I. The complainants are owners of vessels,
duly enrolled and licensed in the coasting trade,
accustomed to pass the site of the proposed
bridges, up and down the Passaic, a navigable
river, wherein the tide and ebbs and flows, to
and from Newark, which is a port of entry.
They are also owners of docks above such sites,
and which will be depreciated by the bridges.
They assert that these bridges will be a nuisance
to navigation and, therefore, ought to be en-
Joined.

II. The complainant, Charles E. Milnor, is
one of " the Proprietors of the bridges over the
Rivers Passaic and Hackensack," and entitled
to the benefit of a contract made by the State
of New Jersey with him and his associates, that
no other bridge than theirs, commonly called
the turnpike bridge, should be erected within
certain limits. These bridges are to be within
those limits. He has protested against any such
erection, and he insists that they cannot be le-
gally built.

III. The New Jersey Railroad Company In
1832 was about to locate its route and bridge
at Commercial Dock, the site now in dispute.
They were opposed; a legal controversy was
begun in Chancery of New Jersey, which was
compromised by their adopting the bridge and
route now used by them, more than twenty
years, across the Passaic River. This, the com-

J>lainants assert, was a binding agreement for
awful consideration, to the benellt of which
they, as owners of real estate which will be af-
fected, and depreciated by the change, and
otherwise are entitled, ^d they seek legal reme-
dy against its infraction. This cause of com-
plaint applies only to the railroad bridge.

The Kiver Passaic is a public navigable river,
bounding the coasU of the United States, and
Congress, by virtue of its power **to regulate
commerce with foreign nations and among the
several States," has asserted a certain Jurisdic-
tion in itself, and a certain right of navigation,
or ju$ publicum, in tlie citizens of the United
States in this and similar navigable rivers, and
has regulated commerce thereon :

1 . By establishing ports of entry and delivery
for the'citizens of the United States and other
nations. Congress has designated the ports on
the coast or navigable rivers frop or to which
vessels engaged in certain branches of com-
merce may sail ; and incidentally Congress has
indicated the waters which may be used by the
citizens of the United States or other nations in
going to or from the designated ports.

1 U. S. Statutes at Large, 682; 4 U. S. SUt-
utes at Large, 715; Hale de P&rUbui Maria, 46,
50. 52, 58, 72, 84; BlundeU v. CatteraU, 5 B. &
Aid.. 268; IhmTia. v. Wheeling Bridge, 18 How.,
485; Carfi€ld v. CoryeU, 4 Wash. C. C, 871.

2. Congress has divided the *' coast" of the
United States into collection districts, of which
one comprehends *' the waters of New Jersey,
heretofore within the jurisdiction of New Jer-
sey," and has subsequently included the River
Passaic by name.

Act of 1789, 1 Slat, at L., 82, 147; Act of
1882, 4 Stat. atL, 715.

8. Congress has granted coasting licenses, and
attached certain privileges and duties thereto,

800

which involve the use of navigable riven ex-
tending f^m the ports to the open sea.

Act of 1798, 8 SUt. at L., 805. sees. 4. 14-18;
Act of 181 9, 8 Stat, at L , 492; sec. 1; Act of
1822. 8 Stat, at L., 685; OibboM v. Ogden, 9
Wheat.. 212.

4. Congress has included in the designation
" coast of the United States," expressly, shores
of ** navigpable rivers," as well as '* sea coast,"
thus defining the term '* coast."

Act 1819. 8 Stat, at L., 492, sec. 1; 8 Stat,
at L., 685; 1 Slat, at L., 809, sees. 14-18.

5. Congress has attached certain duties and
privileges to foreign vessels and to vessels trad-
ing with foreign countries, or in foreign articles,
by treaty and by legislation. Act 1798. 1 Stat.
at L., 809. sections 14 and 18; Act 1799. sees.
50-58, 92. 104.

6. Congress has expended money in survey-
ing, sounding and charting navigable rivers
extending from the sea to ports of entry.

Act 16^7, 2 Stat, at L., 418; see SynopUcai
Index of U. S. SUt. at L.. pp. 100, 101.

7. Congress has expended money in clearing
out and improving the channels of rivers be-
tween the sea and ports of entir, by construct -
ing breakwaters, buoys in the channels to guide
the mariner by day, and light-houses to guide
him by night.

Act of 1804, 2 SUt. at L., 800; see List of
Appropriations in Synoptical Index of U. S.
SUt. at L., pp. 62, 70, 75 to 89; Vols. X. and
XL, Stat, at L.

8. Congress has established custom-housea,
warehouses, scales, etc., at ports of entry, and
esUblished collectors, surveyors, appraisers,
and other officers thereat.

Act 1799. 1 SUt. at L., 642, sec. 21 ; TremleU
V. Adams, 18 How., 804.

9. Congress, in esUblishing these places as
ports, constituted them sea marts, at which
trade between foreign nations and other States
should be carried on; and this was done with
a view to the best interests of the citizens of
the whole of the United Sutes, not of the citi-
zens of the particular Sute or town.

Passenger Cases, 7 How.. 450. Jfr. JnsUes
Catron's opinion; Mr. Justice Oner's opinion;
Hale de Portibtis Maris, 72.

10. Lastly, Congress has regulated navigation
on the Passaic, by willing that "Commerce
shall be free," and by iU negative action in not
imposing restrainU, or authorizing the several
Sutes to do so.

Passenger Cases, Mr. Justice McLean's opin-
son, 7 How., 899, Mr, Justice Grier's opimon;
Gibbons v. Ogden, 9 Wheat, 209.

11. The '* navigable rivers" in which the tide
ebbs and flows, which connect the ocean with
the porto of the United SUtes, were held to be
arms of the sea, both by the common law and by
the international law, at Uie time of the adop-
tion of the Constitution; and to such rivers,
therefore, the^'iM pubUeum of the United Sutes
was atUched, by reason of Uiis^act, in the same
manner as it attached to the high sea.

Angell, Waters, pp. 78, 75, 80; Hale de
P&rUbus Maris, pp. 10, 12. 86; Davies. 149;
Commissioners v. Hemphill, 26 Wend. N. T..
404; 2 Conn., 48; 7 Conn., 186; 8 Conn., 221; 9
Conn., 88; 8Black, Ind., 198; 88cam. III.. 500.

In this particular the Ohio River differed at
law, and hence the Act of Virginia, providing

n u. s.

Al>FEKDlX.

• ••
111

for the erection of Kentucky into a State, of
1789. The effect of the compact between Yir
ginia and Kentucky was to place the Ohio on
me same footing as the tidal rivers of the old
States.

3 Conn., 48: 7Ck)nn., 186; OConn., 88; Com-
rrUmoners v. HemphiU, 26 Wend. N. T., 404;
Oifyof Mobile v. EOava, 16 Pet., 255; PoUarda
V. ffagan, 3 How., 229; Pen-Mylvania r. Wheel-
ing Bridge, 13 How., •685. per Mr, GfUef Justice
Taney; Qeneeee (Jhitf ▼. FUthugh, 12 How.,
455.

The commerce which begins or ends at the
United States ports located on these arms of
the sea, or navigable rivers, and which is car-
ried on between foreign nations and the several
States, is wholly independent of state jurisdic-
tional lines.

Gibbons v. Ogden, 9 Wheat., 194; Passenger
Gases, per Mr. Justice Wayne, 7 How.. 414;

Sir Mr. Justice Catron, 445; per Mr, Justice
rier, 462.

ly. In view of the foregoing Congressional
action, no State can interfere with Uie free
navigation of any "navigable river," or arm
of the sea, leading from the high sea to any
declared port of the United States, by interfer-
ing Mrith either of the essentials required in
navigating said waters, viz. : the vessel, the im-
pelling agent, the water, or the navigators.

Gibbons v. Ogden, 9 Wheat. ; Pennsylvania v.
Wheeling Bridge, 13 How., 518; Devoe v. Pen-
rose Ferry Bridge, 3 Am. Law Reg.. 80; Pm-
senger Cases, per Mr. Justice Catron, 7 How.,
450.

y. The citizens of the United States, and of
foreign nations, having thus, under the Consti-
tution and Acts of Congress, acquired a right
to navigate the River Passaic to and from the
port of the Town of Newark, an obstruction to
such navigation, under the Act of State Legis-
lature, is unconstitutional and a public nui-
sance that may be enjoined or abated on com-
plaint of an injured party.

PemiMhania v. Wheeling Bridge Co., 18
How; Devoe v. Penrose Ferry Co., 3 Law Reg.,
80; Gibbons v. Ogden, 9 Wheat., 1; Brown v.
State of Maryland, 12 Wheat., 419; C(yrfidd v.
G<yryeU, 4 Wash. C. C, 379.

y I. It is immaterial whether the building of
a bridge across a navigable river, in pursuance
of state legislation, is appropriately denominat
ed a municipal regulation, a police regulation,
or a regulation of commerce. The only ques-
tion now to be discussed is. whether the bndge
so built, under authority of a State Legislature,
would, as a matter of fact, interfere with the
exercise of a jus pubUeum recognized in a citi-
zen of the United States by Congress, or any
jurisdiction that has been asdum^ or asserted
by Congress over such a navi^ble river of the
United States, or any regulation of commerce
in reference thereto.

Gibbons v. Ogden, 9 Wheat., 210; C^fleld v.
Coryell, 4 Wash. C. C, 379; Quarantine Regu-
lation. 1 U. S. SUt., 619.

yn. The equitable powers of the courts of
the United States are adequate to grant relief,
either by injunction or decree in a&tement, at
the suit of an injured party.

Pennsylvania v. Whemng Bridge Co., 18
How., 518; Devoe v. Penrose Ferry Bridge Co.,
3 Law Reg., 80,

U. S., Book 16.

yin. That the courto of the United States in
exercising this power, may enjoin absolutely
against the erection of any bridge across ** a
navigable river." or decree absolute an abate-
ment, or may grant a conditional injunction
against particular form or extent of construc-
tion; that courts of the United States can take
cognizance of, and determine the alleged fact
and extent of nuisance, or can refer the same to
a master or to a jury.

Pennsylvania v. Wheeling Bridge Co., 13
How., 518: Devoe v. Penrose Ferry Bridge Co.,
3 Law Reg.. 80.

The present case is within the principle de-
cided in the case of Pennsylvania v. Wheeling
Bridge, and unlike The Black Bird Creek case.

State of Pennsylvania v. Wheeling Bridge, 13
How., 518; Devoe v. Penrose Ferry Bridge Co.,
3 Law Reg., 80; Wilson v. Black Bird Creek
Marsh Co., 2 Pet. ; Angell on Tide Waters, 89;
King v. Montague, 4 B. <& C. 58; lOEng. Com.
Law, 413; Bowe v. Ghranite Bridge Co., 21
Pick., 344.

IX. In exercising this power the court will
oonsider the requisites of the commerce carried
on upon the river; the position and size of the
draws; and the facility and expense of enlarg-
ing the same.

Penna. v. Wheeling Bridge Co., 13 How., 518;
New Jersey Laws, 1855. 374; 6 McLean. 517.

Messrs. J. P. Bradley. A. O. Zabriskie*
W. H. Seward, W. L. Dayton and D. H.
Hayesv for appellees:

I. The federal courts have no jurisdiction.
The Federal Government has the exclusive
power to regulate commerce between the States,
and as a necessary incident thereto, the vessels
and vehicles which are the instruments of that
commerce, and which pass from one State to or
through another; but it has not the right to reg-
ulate or change the surface or physical face of
the country or land within the bounds of a State
over which such vessels or vehicles pass. That
power is wholly in the States, who alone can
construct roads, canals, docks, ferries, &c.,
level or tunnel mountains, erect embankments,
wharves, &c.

1. This power is nowhere delegated by the
Constitution.

The Federalist, No. 45, cited 11 Pet., 133.
says: *' The powers reserved to the several
States extend to the internal order, im-
provement and prosperity of the States."

Roads, ferries, &c., have been repeatedly
declared to be exclusively within the powers
reserved to the States.

Gibbons v. Ogden, 9 Wheat., 403; New York
V. MUn, 11 Pet.. 133; Veazie v. Moor, 14 How.,
574; Withers v. Buckley, 61 U. S. <20 How.).
92, sees. 98 and 94.

2. All agree that Congress cannot construct
a bridge or railroad, canal or ferry, in the in-
terior of a State, although commerce between
two other States, may. nay must, be carried on
over them.

The power to regulate commerce among the
States clearly includes commerce not carried
on by water; as by far the greatest extent of
boundary lines between the eld thirteen States
was on land, and the first commerce among na-
tions was by land, by caravans and camels.

9 Wheat., 196, Gibbons v. Ogden; License
Cases, 5 How., 508.

51 80\

Afpehdix.

The regulation of the channels of communi-
cation was not inchided with the reasons urged
for giving the regulation of (his commerce to
Congress. Federalist, No. 42, 45, and 7. A di-
rect grant of this power would not have heen
tolerated.

8. Bridges across sti^ms are but a continua-
tion of a road over water, and when wholly
within a State, can be erected and authorized
not only^by the State but by Congress.

This IS conceded when the stream is not nav-
igable.

^ilwn V. Blackbird Oreek Mariih Company,
2 Pet., 245; PeopU v. Railroad Company^ 15

Wend.. 113; U, 8. v. Baiiroad Bridge
McLean. 52; Commonwealth v. Breed, 4 Pick.,
460; Veazie v. Moor, 18 How.. 547.

Wharves are erected in navigable waters at
New York. Charleston and New Orleans, with-
out authority from the Federal Government.
They interfere with navigation.

4. The jurisdiction of the States over the chan-
nels of communication across their territory is
the same, whether those channels consist of
water or land, are natural or artificial. .

No foreign State or subject has a right to pass
over these natural channels of commerce, navi-
gable rivers, without the consent of the State
within whose bounds thev are.

In this respect the publicists all agree.

Grotius, lib. 2, ch. 2, sees. 12-14; Grotius.
lib. 2, ch. 8. sees. 7-12; Phil, on International
Law, 16, 17, ch. 6, sec. 155; Jnre Twee Oeb„
2 Rob. Ad., 888, Wheeling Bridge case, 18
How.. 582, Ch, J. Taney.

5. If a state in the exercise of any power clear-
ly reserved to it, pass laws which are not laws
directly regulating commerce, but which inci-
dentally affect it, by obstructing or promoting it,
such le^slation is not unconstitutional.

This IS the point of the decision in the License
Caaes, 5 How., 5!^; Brown v. Maryland, 12
Wheat., 419; New York v. MUn, 11 Pet.. 180;
Inn. Co. V. Curteniiu, 6 McLean, 215.

6. The right to regulate, construct, and main-
tain roads and bridges is in the States, a^ clearly
as the power to protect health bv health laws,
to regulate the sale of liquor by license laws, or
to provide for protection against paupers, and
to tax goods, when imported, for support of
government. And when so exercised as not to
regulate the commerce or trade upon them di-
rectly by the provisions of the law, but only in-
directly, as by its consequences, it is not in con-
flict with the Constitution.

7. The license of a vessel to trade from one
port to another does not affect this power in the
State. Congress may regulate and license drov-
ers from Ohio to New York, or Yankee ped-
dlers and their wagons from Connecticut to
Georgia, and in this protect the States from in-
cendiary documents and underground railways.
Yet Pennsylvania, through which these licensed
drovers and peddlers might pass, could still reg-
ulate her own roads, narrow or widen them,
improve or increase their grades, intersect them
by canals and railroads, even if the draw bridses
on the canals and the trains on the railroads
would necessarily sometimes delay a licensed
drover or peddler, break a wheel, or destroy
or drown a few cattle or hogs.

II. But if the Federal Government has the
right to control the physical condition of the

80^

territorv of the States, it is an extreme power
and to be exercised with great delicacy and cau-
tion. It must be a power in which the States
participate, and in which their action is su-
preme, until interfered with by federal le^sla-
tion ; andCon^ress has never regulated the bridg-
ing of rivers in New Jersey.

The federal courts have no common law Ju-
risdiction over nuisances.

18 How., 580.

Congress could by enactment have declared
such erections nuisances. Congress has not
done so.

If the power thus to set aside state le^islatSoa
does not exist in the federal courts, it is ao ex-
treme a power, that many of the federal judges
have hesitated to exercise it.

Chiitf Justice Taney, opinion in State qfPenn-
tyhaniay. Wheeling Bridge Co., 18 How., 587.

The same hesitation existed with JusHees
Woodbury and Daniel ; Chief Justice Marshall,
in The Blackbird Creek case, 2 Pet., 245. The
Chancellor of New Jersey held like views in
Oroiser v. Alexander, Law Reg. of April, 1855.

III. The federal courts will never exerdae the
right of preventing those erections on the navi-

gable rivers which the sovereignty of a State
as declared requisite and proper, unless it clear-
ly appears that the rights of the public com-
merce are irreconcilable with the exiatenoe of
such erection.

These priaciples are brought out in The Wked-
ing Bridge case, 18 How., 577; Works v. Junc^-
tion Baiiroad, 5 McLean, 488; Detoe v. Pisnross
Ferry Bridge Co., Law Reg. of December. 1854.
p. 88; Columbus Ins. Co, v. Peoria Bridge Co..
6 McLean, 73.

lY. If this power of reverang state legisla-
tion is to be exercised by the federal courto, we
have no apprehension from it in the present
case, if it is exercised with the caution ud un-
der the restrictions indicated.

In this case the comparative unimportance of
the river, and the trlflinff obstruction proposed,
are such that no considerable uojury will be
done to public commerce and the Federal (jk>v-
emment is not called upon to question the judg-
ment or to nullify the enactments of the State.

Congress has no power to enable it, in ordi-
nary cases, to interfere with the State's right to
erect a bridge over such a river as the Ptunaic

It is not necessary for carrying into execu-
tion the power to remilate commerce.

There are doubtless many incidental powers
whi<^ are thus necessary; for example^the
power to regulate diips and vessels, and sea-
men— ^the power to regulate the system of light-
houses, beacons and buoya— the power to niake
public piers at the entrance of harbors; along
the coast of the sea and lakes, and other works
of national and not local importance, where a
single State is not alone interested, and could
not alone compass the improvement desired ; the
power to improve the naviiration of commoo
rivers, bounded bv two or more States and noc
subject to the exclusive jurisdiction of either.
But no such necessitv exists with rmrd to the
internal rivers of a State flowing only in and
through a single State. Rivers are neoeasary
to commerce; but not more so than roada,
wharves and storehouses.

The necessities of the case are the other wav.
It is necessary for the preservation of the puH-

Afpbhdix.

lie order that tbe States should have Jtirisdic-
tion over Iheir own rivers.

It cannot be denied that the general good of-
ten requires bridges to be built over navigable
rivers. But €k)nj^ie8s cannot build them. It
has no power. The State alone can do it, or
authorize it to be done.

Injuries to the navigation are indictable.

Wharton's PrecedenU of Indict., 416-418;
Wharton's Am. Crim. Law, 806, 807 (8 ed.); 1
Barr. Pa., 105; Com, v. Vhutth; CaldweU's
case— Wharf. 1 Dall., 150; Com, v. Wriffht,
Thatcher's Cr. Cas., 211.

Has Congress the power to take from New Jer-
sey its jurisdiction over such cases? Ck)ngres8
cannot punish them bv indictment, any more
than it can punish, by mdictment, nuisances to
common highways.

The State Legislature alone has the true local
knowledge of the wants of the State, including
its rivers as well as the other portions of its ter-
ritory, to legislate properly with regard to it.

These considerations disaffirm the power of
Congress to assume a superintending control
over state rivers, as well as a genenu and ex-
haustive control.

These considerations also show that no ref-
lation of commerce, as such, can interfere with
the power of the State to regulate and control
the physical features of its lands and waters.
The power to regulate commerce is a paramount
power, but it is not in the nature of the power
to interfere with this state power. Congress-
ional regulations of commerce are to be made,
and are necessarily to be made in reference to the
existing state of things in the territorial condition
of the States, their lands, t^aters, roads, towns,
wharves, storehouses, &c., whether that state
of things is the effect of natural or municipal
causes.

The case of a postoffice is analogous. The
State is not depnved of its power to change
roads because they have been made post-roads,
nor because they lead to a postofflce.

The principle involved in these views is sup-
ported by Oibb(m» v. Ogden, 9 Wheat., 308, On.
J, Marshall; Passenger case, New Torkv, MUnt
11 Pet., 102; NorrU v. Boston, Passenger Case,
7 How., 288.

If any necessity exists that Conjnress should ex-
ercise jurisdiction over the surraoe or phvsical
aspects of our internal rivers, such jurudiction
must be limited by the extent of the necessity. At
most, it can be only a jurisdiction to preserve a
right of way for commercial transportation. All
other jurisdiction over the river itself must be
deemed to be retained by the State. And riv-
ers beinff part of the State's territory and do-
main, aU State Acts undertaken in respect of
them, short of obstructing such right of way,
must be deemed valid; and the necessity for
such Acts must be deemed settled by the legisla
tive action of the State. If a bridge is erected
by state authority, provided with a draw for
the passage of vessels, the courts will deem such
means of passage sufficient, unless Congress in-
terferes to .declare the contrary.

The history of the events which resulted in
the formation of the Constitution does not call
for such a construction of the commercial pow-
er, as would invest the Federal Government with
a control over the interna) rivers of the State.

Marshall, Life of Washington, Vol. II., ch.

4, 2d ed., pp. 96, 98-100, 105, 109; Feder-
ralist. No. XL, by Hamilton; 1 Laws U. S.,
Bioren'sed., pp. 28, 28, 29, 87-54.

The decree of the court below, in each of
these cases, dismissing the complainant's bill,
was affirmed by a divided court.

The following is the opinion of Mr, Juttice
Orier. delivered in the Circuit Court at Tren-
ton, September 22d, 1857, in the three above
cases and in the two cases of William L. Shard-
low against the same respondents.

Opinion of Gribr, J,, in Circuit Court.

The object of these five several bills is to ob-
tain injunctions prohibiting the erection of cer-
tain bridges over the Passaic River. One of
these proposed to be erected at a point called
the Commercial Dock, in the City of Newark,
by the New Jersey Railroad and Transporta-
tion Company. The other by ^e Newark
Plank Roaid Company, near the mouth of the
Passaic River, ana some two and a half miles
below the wharves of the port of Newark. The
erection of these bridges is authorized by the
Legislature of New Jersey. They are required
to nave pivot draws leaving two passages of
sixty-five feet each, for the passage of vessels
navigating the river or harbor. The first of
these bridges is required in order to avoid the
certain curves in the railroad where it passes
through Newark, and to make it straight. The
other to accommodate the large and increasing
commerce between the cities of New York and
Newark, on the plank road connecting the
lower end of Newark with Jersey City.

It will not be necessary to a proper consid-
eration of these several questions affecting the
decision of these cases, to give an abstract either
of the pleadings or of the testimony. Where
opinions are received in evidence there can be
no restraint as to quantity. Such testimony is
always affected bv the feelines, prejudices and
interests of the witnesses, ana is of course con-
tradictory. A skipper will pronounce every
bridge a nuisance, while travelers on plank or
railroads will not think it proper that their per-
sons or property should be subject to dela^ or
risk of aestruction, to avoid an inconvenience
or slight impediment to sloops or schooners;
owners of wharves or docks who may appre-
hend that their interests may be affected by a
change of location of a bridge, are unanimous
in their opinion that public improvement had
better be arrested than that their own interests
should be affected. In this conflict of testimony
and discordant opinion, we shall not stop to
make any invidious comparison as to the credi-
bility of the witnesses, but assume such facts
as we believe to be proven, without attempting
to vindicate the propriety of our assertions.

I. The first of the three great questions so
ably discussed by the learned counsel in these
cases, is briefly and lucidly stated in the fol-
lowing propositions, which complainants have
endeavored to establish :

1st. "That the Passaic River is a public
highway of commerce, which, under the Con-
stitution of the United States, has been regu-
lated by Congress."

2d. ** That the free navigation of the Passaic
River as a common highway having been es-
tablished by regulation of Congress, and by
compact between the States, it cannot lawfully

808

Affkitdix.

be obetracted bj force of any state author-
ity or legislation/'

8d. "The bridees proposed to be erected by
the New Jersey railroad Company and Plank
Road Company, will be each an obstruction to
the free navigation of ^the Passaic River and
public nuisances."

** Consequently this court will enjoin their
erection on complaint of any injured party."

So far as these propositions involve the facts
of the case, we find them to be as follows:

The Passaic is a river having its springs and
its outlet wholly within the State oi^ New Jer-
sey.

Though a small and narrow river it is navi-

gable for sloops and the smaller class of steam-
oats as far as the tide flows, some miles above
Newark. At the upper end aod above this
city, there are several bridges with small draws
and difficult to pass. These were all erected
by authority of the State, and one of them
more than fifty years ago. The City of New-
ark has been made a port of entry by an Act
of Congress, has some little foreign commerce,
and some with ports of other States. Bein^, in
fact, but a manufacturing suburb of New York,
much the largest portion of its commerce is
with that city, and carried on the rail and
plank roads connecting them.

That the proposed bridees will, in some
measure, cause an obstruction to the naviga-
tion of the river, and some inconvienence to
vessels passing the draws, is certainly true.
Every bridge may be said to be an obstruction
on the channel of a river, but it is not neces-
sarily a nuisance. Bridges are highways as
necessary to the commerce and intercourse of
the public as rivers. That which the public
convenience imperatively demands, cannot be
called a public nuisance because it causes some
ioconvenience or affects the private interests
of a few individuals.

Now, if every bridge over a navigable river
be not necessarily a nuisance, but may be erected
for the public benefit, without being con-
sidered in law or in fact a nuisance though
certainly an inconvenience affecting the navi-
l^tion of the river, the question recurs, who
IS to judge of this necessity? Who shsdl say
what shall be the height of a pier, the width of
a draw, and how it ^all be erected, managed
and controlled? Is this a matter of judicial
discretion or legislative enactment? Can that
be a nuisance which is authorized by law?
Does a State lose the great police power of
regulating its own highways and bridges over
its own rivers, because the tide may flow
therein, or as soon as the^ become a highway,
to a port of entry within its own borders? In
the course of seventy years' practical construc-
tion of the Constitution, no Act of Congress is
to be found regulating such .erections, or as-
suming to license a bridge over such a river
wholly within the jurisdiction of a State (if we
except the doubtful precedent of the Cumber-
land road), and during all this time States have
assumed and exercised this power. If we now
deny it to the States, where do we find any au-
thority in the Constitution or Acts of Congress
for assuming it ourselves?

These are questions which must be resolved
before this court can constitute itself '* arbU$r
pontium" and assume the power of deciding

b04

where and when public necessity demands a
bridge, what is a sufficient draw, or how much
inconvenience to navigation will conatitute a
nuisance.

The complainants, in these aeremJ bills, in
order to show jurisdiction in the court, have
stated themselves to be citizens of the State of
New York. Their right to a remedy in the
courts of the United ^tes is not asserted on
account of the sublect-matter of the contro-
versy, nor do they allege any peculiar Jurisdic-
tion as given to us by any Act of Congress;
but rest upon their personal right as dtizois of
another State to sue in this tribunal. It is v^
apparent also that the. complainants, if not in-
troduced as mere John Does, or nominal par-
ties (while those really contending are used as
witnesses), are at least volunteers in the con-
troversy, '*po9t litem motum" who have
bought Uie right to an expected injury for the
luxury of the litigation.

Without stopping to laud this exhibition of
public spirit by cit&ens of a neighboring State,
it is plain, by their own showing, that they can
demand no other remedy from this court than
would be administered by the tribunals of the
State of New Jersey in a suit between its own
citizens. A citizen of New York who pur-
chases wharves in Newark or owns a vessel
navigating to that port, has no greater right
than the citizens of New Jersey. A Court of
Chancery in New Jersey would not interfere
with the course of public improvements au-
thorized by that State at the instance of a
wharf owner on the suggestion that a change
in the location of a bridge would cause a de-
predation in the value of his property.
This is not a result for which (if the court can
give any remedy at all) it will interfere by in-
junction. The court has no power to arrest
the course of public improvements, on account
of their effects upon the value of property, ap-
preciating it in one place and depreciating it m
another. If special damage occurs to an indi-
vidual, the law gives him a remedy. But he
cannot recover either in a court of law or eq-
uity special damage as for a common niusance,
if the erection compldned of be not a nuisance.
A bridge authorized by the State of New Jtr-
sey cannot be treated as a nuisance, under the
laws of New Jersey. That the police power
of a State includes the regulation of highways
and bridges within its tonndaries, has never
been questioned. If the Legislature have de-
clared that bridges erected with draws of cer-
tain dimensions will not impede the commerce
of the river, as to be injurious or become a

Sublic nuisance, where can the courts of New
ersey find an^ authority for overruling,rever8-
ing or nallifymg legislative Acts on a sublect-
matter over which it has exclusive jurisdiction?
Admitting, for the sake of argument, that Con-
gress, in the exercise of the commercial power,
may regulate the height of bridges on a public
river in a State below a port of entry, or may
forbid their erection altogether, tliey have
never yet assumed the exerdse of such a pow-
er, nor have t^ey by any legislative act con-
ferred this power on the courts. The bridges
will not be nuisances by the law of New Jer-
sey. The United States has no common law
offenses, and has passed no statute dedaring
such an erection a nuisance. If so, a court

66 U.S.

vii

cannot interfere, by arbitrary decree, either to
restrain the erection of a bridge or to define its
form and ^portions. It is plain that these
are subjects of legislative, not Judicial, discre-
tion. It is a power which has always hereto-
fore been exercised by State Lesislatures over
livers wholly within their Juiudiction, and
where the rights of citizens of other States to
navigate the river are not injured, for the sake
of some special benefit to the citizens of the
State exercising the power.

But it has been contended, on the authority
of a dietum of my own, in lUvos v. The Pen-
rote Ferry Oompamy, " that the Supreme Court
have decided in the case of Penn&yhMnia v.
Wheeling Bridge, 18 How.. 579, that, although
the courts of Uie United States cannot punish
by indictment, the erection of a nuisance on
our public rivers, erected by authority of a
State, yet that as courts of chancery thev may
interefere at the instance of an indiviaual or
corporation who are likely to suffer some spe-
cial injury, and prohibit by injunction the
erection or nuisances to the navigation of the
great navigable rivers leading to the ports of
entry Within a State."

8 Am. Law. Reff., p. 88.

It is true that this doctnne was enunciated
as a corollary from The Wheeling Bridge case,
on a motion for an interlocutory iniunction
against a bridge over a stream wholly within the
territory and jurisdiction of Pennsylvania. On
such motions I have always refuseatohearand
and definitively decide the great points of a case.
If there be a prima fade or even doubtful case
shown, it is the interest of both parties that the
interlocutory injunction should issue, and that
the defendants should not expend large sums in
erections which may possibly be treated here-
after by the courts as nuisances. In the cases
now before us the same course was pursued;
but after the full argument of thlB question on
final hearing, and a most careful consideration
of it, I feel bound to acknowledge that the
dictum I have Just quoted from the report of
the case of 77ie Penroee Ferry Bridge Company
is not supported by the decision of the Su-
preme Court in The Wheeling Bridge case. It
IS true that such an inference might be drawn
from a hasty or superficial examination of the
opinion of the court as delivered in that cas^.
But the point now to be considered, was not in
that case, and could not, therefore, have been
decided. No Judge, in vindicating the Judg-
ment of the court, can deliver maxims of uni-
versal application, in every sentence, or oracles
which may be read in two ways, one applicable
to the case before him, and the other not. To
sever the arguments of a Judge from the facts
of the case to which he refers, will often lead
to very erroneous conclusions. The fact that
Pittsburg has been made a port of entry may
have been mentioned as an additional or cumu-
lative reason why Virginia should not be al-
lowed to license a nuisance on the Ohio below
that city. But the question whether the power
to regulate bridges over navigable rivers wholly
within the bounds of a State, could be exer-
cised by it below a port of entry, and whether
the establishment of such a port, did, ipeo
facto, devest the State of such a power, was not
in the case and, therefore, not aecided. This

assertion will be fully vindicated by a careful
examination of the record in that case.

Ist. It must be noted as a circumstance of
that case, that although the State of Pennsyl-
vania in its corporate capacity was complain-
ant, and ** propter dignitatum, entitled to sue
in the Supreme Court of the United States; yet
that when the bill was filed, the same com-
plaint might have been sustained in Ae Circuit
Court of the United Slates, or the bridge mi^ht
have been prostrated as a nuisance by indict-
ment in the proper State Court of Virginia.
The bill charged that the bridge proposeato be
erected was in utter disregard of the license
granted by its charter, which carefully forbids
Uie least interference with the navigation of
the Ohio. On the facts charged and proved, a
court of chancery of Virginia would have been
bound to enjoin the erection of so palpable a
nuisance to the navigation. The case, there-
fore, presented every fact necessary to give the
court Jurisdiction — a party having a nght to
sue in the court — a nuiaance proposed to be
erected within the sanction either of Virginia
or the United States, and great special damage
to the plaintiff.

2d. buring the pendency of this suit, the
Legislature of Vir^nia saw proper to come to
the assistance of its corporation in the une-
qual contest, and at its suggestion enacted that
the bridge proposed to be ouilt contrary to the
license granted to the corporation, was accord-
ing to it, and not, therefore, to be considered as
a nuisance by the laws of Virginia — notwith-
standing that the bridge was without a draw
and for many days in the year would wholl/
obstruct the passage of steamboats.

8d. This legislation of Virginia being plead-
ed as a bar to the further action of the court in
the case, necessarily raised these questions:

Could Virginia license or authorize a nui-
sance on a public river, which rose in Penn-
sylvania and passed along the border of Vir-
ginia, and which by compact between the
tales was declared to be *' tree and common
to all the citizens of the United States?" If
Virginia could authorize any obstruction at all
to the channel navigation, it ooald slop it al-
together and divert the whole commerce of that
great river from the State of Pennsylvania and
compel it to seek its outlet by the railroads and
other public improvements of Virginia. If
it had tne sovereign right over this boundary
river claimed by it, there could be no meas-
ure to its power. It would have the same
right to stop its navigation altogether as to
stop it ten days in a Vear. If the plea was ad-
mitted, Virginia could make Wheeling the head
of navigation on the Ohio, and Kentucky
might do the same at Louisville, having the
same right over the whole river which Virginia
can claim. ThiB plea, therefore, presented not
only a great question of international law, but
whether rights secured to the people of the
United States, by compact made before the
Constitution, were held at the mercy or ca-
price of every or any of the States to which the
river was a bouodary. The decision of the
court denied this right. The plea being insuf-
ficient as a defense, of course the complainant
was entitled to a decree prostrating the bridge,
which had been erected pendente Ute, But to

80S

viii

AtTWSDtt,

mitigate the apparent hardship of such a de-
cree, if executed unconditioiiuly, the court, in
the exercise of a merciful disoretion, granted a
stay of execution, on condition tliat tne bridge
should be raised to a certain height, or have a
draw put in it, which would permit boats to
pass at all stages of the navigation. From this
modification of the decree no inference can be
drawn, that the courts of the United States
claim authority to regulate bridges below the
ports of entry, and treat all state legislation in
such cases as unconstitutional and void.

It Ib abundantly evident from this statement,
that the Supreme Court, in denying the right
of Virginia to exercise this absolute control
over the Ohio River, and in deciding that as a
riparian proprietor It was not entitled, either
by the compact, or by constitutional law, to
obstruct the commerce of a supra-riparian
State, had before them questions not involved
in these cases, and which cannot affect Uieir
decision. The Passaic River, though naviga-
ble'for a few miles within the State of New
Jeraev and, therefore, a public river, belongs
wholly to that State; it is no highway to other
States, no commerce passes thereon from States
below the bridges to States above. Being the
property of the State, and no other State hav-
m^ the title to interfere with its absolute do-
minion, it alone can regulate liie harbors,
wharves, ferries or bridges in or over it. Ck>n-
gress has the exclusive power to regulate com-
merce, but that has never been construed
to include the means by which commerce is
carried on within a State. Canals, turnpikes,
bridges and railroads are as necessary to the
commerce between and through the several
States as rivers. Yet Congress has never at-
tempted to regulate them. When a city is
made a port oientry. Congress does not there-
by assume to regulate its harbor, or detract
from the sovereign rights before exercised by
each State over its own public rivers. Con-
gress may establish postofflces and post-roads;
but this does not affect or control the absolute
power of the State over highways and bridees.
If a State does not desire the accommodation
of mails at certain places, and will not make
roads and bridges, on which to transport them.
Congress cannot compel it to do so, or require
it to receive favors by compulsion. Constitut-
ing a town or city a port of entry, is an act of
convenience and beneflt,of such place; but for
the sake of this benefit the Constitution does
not require the State to surrender its control
over the harbor, or the highways leading to it,
either b^ land or water, provided all citizens of
the United States enjoy the same privileges
which are enjoyed by its own.

Whether a bridge over the Passaic will in-
juriously affect the harbor of Newark, is a
question which the people of New Jersey
can best determine, and have a right to de-
termine for themselves. If the bridges be an
inconvenience to sloops and schooners navi-
gating their port, it is no more so to others than
to them. I see no reason why the State of New
Jersey, in the exercise of its absolute sov-
ereign tv over the river, may not stop it up
altoffetner, and establish the harbor and wharves
of NewarlE at the mouth of the river. It would
affect the rights of no other States. It would
still be a port of entry if Congress chose to con-

»Ott

tinue it so. Such action would not be in oon*
flict with any power vested in Conmss. A
State may,in the exercise of its reserved powers,
incidentally affect subjects intrusted to Con-
gress, without any necessarv oollLsion. All
railroads, canals, harbors or bridges necessarily
affect not onlv the commerce within a SiMe
but between the States. Congress, by confer-
ring the privilege of a port of entiy. upon a
town or city does not come in conflict with
the police power of a State exercised in bridging
its own rivers below such port. If the power
to make a town a port of entry includes the
right to regulate the means by which its com-
merce is carried on, whv does it not extend
to its turnpikes, railroaos and canals, to land
as well as water? Assuming the right (which
I neither deny or affirm) of Congress to regu-
late bridges over navi^ble rivers below ports
of entry, yet not havmg done so, the courts
cannot assume to themselves suc^ a power.
There is no Act of Congress or rule of law
which courts could apply to such a case. It
is possible that courts might exercise this dis-
cretionary power as judiciously as a legisla-
tive body, yet the praise of being a '*good
Judge " could hardly be given to one who would
endeavor to " enlarge hte Jurisdiction," by the
assumption, or rather usurpation, of such an un-
definea and discretionary power.

The police power to make bridges over its
public rivers is as absolutely vestea in a State,
as the commercial power is in Congress ; and no
question can arise as to which is tound to give
way. when exercised over the same sub^t-
matter till a case of actual collision occurs.
This is all that was decided in the case of WtUon
V. Tha BUuik Bird Greek, dte., 3 Pet, 857. That
case has been the subject of much oonunent and
some misconstruction. It was never intended
as a retraction or modification of anything de-
cided by Oibbona v. Ogden, as to the exclusive
Sower of Congress to rejo^ulate commerce. Nor
oes T%e WKeeUng BrSge case at all conflict
with either. The case of WUeon v. The Maek
Bird Creek, d^., governs this — whUe it has
nothing in common with that of l%e Wheding
Bridge,

The view taken by the court of this point dis-
penses with the necessity of an expression of
opinion on the questions on which so mtt<^ testi-
mony has been accumulated : what is the proper
width of draw4 on bridges over the Passaic?
How far the public necessity requires them.
Wliat is the comparative value of the commerce
passing over or under them? What the amount
of inconvenience such draws may be to the
navigation, and whether it is for the public in-
terest that this should be encountered rather
than the great one consequent on the want of
such bridges. And flnatly, the comparative
merits of curved and stndght lines in the con-
struction of railroads. These questions have
all been ruled by the Legislature of New Jersey,
having, as we oelieve, the sole Jurisdiction m
he matter. It has used its discretion in a ma^
ter properly submitted to it, and this court
has neither the power to decide, nor the dis-
position to say, tliat it has been injudiciouriy
exercised.

II. The second great question in this case ii
not affected by the conditions of the first The
court has undoubted Jurisdiction to admfnmtff

AFFBKDDt.

the relief here sought, if the complainants have
shown themselves entitled to.it

It is charged that the Corporation called the
" Proprietors of the bridges over the river Pas-
saic and Hackensack/' have a right to bridge
these rivers, " exclusive of all other persons
whatsoever, in such manner as that no other
bridge can be erected within said limits, until
the expiration of ninety-nine vears from the
date of said original Act (1790), without the
consent of said proprietors." It is contended,
also, that a majoritv of the stockholders can-
not, by law, surrender or release this exclusive
privilege or franchise, and that any law assum-
mg to take away or authorizing any invasion of
such franchise, impairs the ooligation of the
original and fundamental contract with and be-
tween the stockholders, and is, therefore, un-
constitutional and void: and as a consequence,
this court, having jurisdiction of the parties, is
bound to protect their franchise from invasion,
on the complaint of any individual stockholder.

In order to a clear unaerstanding of this point,
it will be necessary to give a brfif , but never-
theless, a somewhat tedious history of the legis-
lative and other transactions connected with it.

Previous to the year 1790, the Passaic and
Hackensack rivers have been crossed bv means
of ferries only. In that year the Le^sfature of
New Jersey passed an Act ' 'for buildmg bridges
over the Passaic, Hackensack," &c. As this
Act is somewhat anomalous in its provisions and
subject to misconstruction, it will be necessary
to notice some of its provisions. The 1st sec-
tion nominates certain commissioners, " who
are authorized to put in execution the several
services intended by this Act." They are
reouired to view the ground from Newark
to Fowle's Hook,and fix upon the most suitable
and convenient site for a bridge, and are au-
thorized to erect or cause to be erected, abridge
over each of these rivers. The bridges must
each have a draw of twenty four feet, lamps,
&c. After having agreed upon the sites of the
bridges, they are required to lay out the roads
to them. If the bridge be fixed at the ferry,
commissioneiB were to pay for the feny
rights; they were also authorized, at their dis-
cretion, to contract and agree with any person
or persons who would undertake to build such
bridges for the tolls allowed by the Act ; and for
80 many years and upon such conditions, as, in
the discretion of the commissioners, should seem
expedient This agreement must be reduced to
writing, signed and sealed bv the parties thereto,
and reconted, " and to be bfnding on the parties
contracting, as well as the State of New Jersey,
and as effectual as if the same and every part,
covenant and condition thereof, had been par-
ticularly and expressly set forth and enacted in
this law."

The 16th section enacts, " that it shall not be
lawful for any person, whatsoever, to erect or
cause to be erected, any other bridge, or bridges
over or across the said River Passaic, between
its mouth and second river, &c."

In February, 1798, these commissioners en-
tered into a contract, by indenture with some
thirty-seven gentlemen, reciting their powers
under the above Act. By this deed, they * 'de-
mised, granted and to farm, let" the said bridges,
to be erected, ' 'as hereinafter declared, over said
rivers, together with the tolls appertaining there-

to." " To have and to hold the said bridges,
with their respective tolls and profits, herein-
before mentioned, &c.," for a term of ninety-
seven years. In 1794, the stockholders in ttiis
Ck>mpany are constituted a body politic and cor-

g orate, by the name of the '* Proprietors of the
ridges over the rivers Passaic and Hacken-
sack."

In 1883 ' ' the Act to incorporate the New Jer-
sey Railroad Company " was passed.

As the proprietors of the bridges had claimed
the sole right to build bridges over the Passaic
and Hackensack on the proposed route of the
railroad, the Legislature, with a laudable
regard for private rights, authorized the Rail-
road Company to purchase turnpike roads and
bridges on the route or any or all the shares of
the capital stock of such roads and bridges.
The stockholders were to be paid the value of
their stock, or have railroad stock to the same
amount. The Act did not make il compulsory
on the stockholders to accept their value of their
stock in money, or railroad stock, but left it to the
two Corporations to arrange the matter between
themselves. No difficulty appears to have been
apprehended, as the raUroad was authorized to
purchase the stock, and thereby control the
other Corporation. The Act, while it contem-
plated that the Railroad Corporation should
have the control of both the turnpikes and
bridges, did not permit the smaller corporations
to be absorbed or annihilated by the greater,
but ordained that the roads and bridges should
be preserved and governed by the provisions of
their respective charters.

Accordingly, in November, 1882, the Railroad
Corporation entered into an agreement with the
'* proprietors of the bridges, reciting the au-
thority conferred on the railroad, and that the
parties had agreed upon the terms of sale of the
stock of the Bridee Company; and stipulating
that the Railroad Company pay to the stock-
holders of the Bridge Company $150 for every
share of their stock. It provided that the stock-
holders electing to receive payment for their
stock according to this agreement, should show
their assent before the Ist uf January following,
and might elect to receive money or railroiS
stock to the same amount, reserving their "fran-
chise privileges" as before held, and reserving
also all grants or privileges theretofore made
by way of commutation.

The reservations were made to meet the ex-
igency of the proviso to the 10th section of the
Act of Incorporation of the Railroad Company.
"That nothing herein contained shall be so con-
structed as to impair any reversionary interest
or vested rights which the State or any incorpo-
rated company or individual may possess in
virtue of an Act for building bridges, &c. , passed
hi 1790," by way, &c.

By this agreement the railroad is permitted
either to use the old bridge or erect another
alongside, but so as not to obstruct, hinder or
interrupt the travel over the old bridge.

In pursuance of their Act of Incorporation
and of their agreement, the railroad brought
some nine hundred and thirty of the one thou-
sand shares into which the stock of the "pro-
prietors of the bridges," etc., was divided, at the
price of $160 for each share of $100. They
erected a bridge at the end of Center Street,
which has be^ used for upwards of twenty

807

Appbhdut

years. As a new bridge is now found necessary,
and as the position of the old one requires sharp
eurves of the railroad throueh the streets of
the city, which are not only Inconvenient but
dangerous, a suplement to the Act incorporating
the railroad was passed on the 8d Apnl, 1855,
authorizing the construction of the bridge at
Commercial Dock, and the removal of the old
one at Center Street, and of the railroad track
connected therewith. It requires the new bridge
to have two draws, each at least sixty-five feet
wide, on which a light must be kept at night,
and a careful person to open the draws for free
passage of vessels, with tne same provision as
to reversionary interests as is found in the 10th
section of the original Act. It requires also
the consent of the ''Proprietors of the Bridges,
&c./' in writing under the corporate seal, and
that the giving of such consent shall not, except
as to the oridge so consented to, be constructed,
held or deemed in any manner to strengthen or
impair any rights or privileges which the said
''proprietors may pofisess."

It IS not worth while, for the purposes of this
case, to inquire whether the "proprietors of the
bridges," &c. , can claim any franchise of great-
er exent than that contained and accuratenr de-
fined in their written agreement with the Com-
missioners. It clearly does not confer on them
a right to build any other bridges than the
two described and specified, or take toUs there-
from. They cannot be said, therefore, to have
a monopoly for building of bridges within
the boundaries specified in the Act. The in-
strument called a lease of agreement defines t^e
rights and the extent of the franchise ^ranted
to the Company; and it may well be doubted
whether the provisions of the 15th section,
which are wholly omitted from their charter,
can be invoked as any portion of their fran-
chise. Nevertheless, as the Legislature of New
Jersey seem to have treated this section as in
the nature of a covenant by the State not to
permit other bridges to be erected which might
injure the value of the franchise conferred ~on
the ' 'proprietors, " by the commissioners without
ihe consent of the Corporation, we shall treat(it
as such — ^at best it is no more.

If the proprietors had the sole rieht to build
bridges and take tolls, their whole franchise
mieht have been condemned by the Legislature
under their right of eminent domain. A title
to a franchise is of no higher quality than a
title to land. Such indisCTeet contracts by a
Legislature cannot paralyze the arm of govern-
ment and stop the pronees of improvement for
a century. The Legislature, without attempt-
ing to define its rights of compelling them to
renounce them for a proper consideration, has
merely suggested a very easy mode for getting
over the difficulty. The railroad is authorizea
to purchase out the whole stock and franchise of
the Bridge Company by paying the full value
thereof. Those stockholders who did not choose
to accept such terms, knew well the purpose
and object of this transaction was to give to
the Railroad Corporation the control of this
claim to a monopoly, whatever mi^ht be its
validity or extent without a destruction of the
other corporate privileges and faculties.

An acquiescence for more than twenty years
in the exercise of this right by the railroad will
hardly leave room to question it now, even if a

908

majority of the stockholders should be dmosed
to do so. But the parties now objectinff oo not
seem absolutely to deny the rig^t of the Rail-
road Company to have a bridce over the Pas-
saic somewhere, provided it be built so as to
suit the private interest of certain wharf own-
ers. Their franchise to receive tolls and past
free on their own bridge, will not be impaired
by the change." Nor is there any evidence
that the value of the bridge stock will be in
any manner affected thereby. When the heg-
islature has decided that the public interests
require the change of location of the track of
a railroad, or a bridge connected with it, a
court cannot be callea upon to enjoin such a
change, because it will cause a depredation of
property adjoining it, nor can membeFs of the
Bridge Corporation in this case call for the in-
tervention of the court to protect them against
the acts of the malority of the corporatora, unless
for some abuse of power to the inlury of the
corporate privileges or property or tlie minor-
ity. It is no part of the corporate franehtse of
the proprietors, &c. , that any of its stockbolden
who may chance to be wharf owners, shall
wield thdr corporate privileges to enhance the
value of their wharves.

This change of the position of the raihnoad
bridge is authorized by law. It has the con-
sent of the " proprietors " given in the manner
pointed out by the law. under the seal of tlie
Corporation. In giving this assent the Corpora-
tion was acting within the scope of its powm,
and in a case where the will of the malority
must necessarily govern when lawfully ex-
pressed. This is not a case where a majority of
the stockholders are employing the common
fund for the aocomplie^ment of a purpose not
within the scope of the institution. The ma-
jority must decide what is proper compensa-
tion for -any real or suposed injury to their fran-
chiBe of tofi, which may result from the change
of position of this railroad bridge.

If it be part of their franchise to license other
bridges, such a franchise can only be exerdaed
by the Corporation under their common seal,
and at the will of a majority. But it is plain
that another bridge erected without legislative
authority might have been treated as a nui-
sance, for whatever may have been considered
the nature of the supposed monopoly, neither
the law nor their own lease, authorized them to
build another bridge, or to give a valid license
to others. The Legislature admits that it is
bound by contract not to authorize another
bridge: but on the principle of **wie9Ui no%
fit ir^ria" they have directed the railroad to
obtain the consent of the Corporation with
which this contract was made: wheth^* this
covenant was made with them originally ss
partners or corporators, can make no difference
m the case. In neither case can a single indi-
vidual, by his negative vote, control the major-
ity of the body, or compel it to give or refuse
its consent, as may suit the interest of an indi-
vidual or a minontY.

This supposed /ranchise of forbidding the
Legislature from licensing a bridge over these
rivers, seems to have been a piuzle for the
learned lawyers of the State for half a century

East; and as it is claimed by a Isrgb number of
ishly respectable, influential and wealthy men,
it has been treated with great reverenoe by the

Legislature, and the more flo, as the hiwyers
could not agree in defining what it was. Some
have fancied it an incorporeal hereditament in
each stockholder, which cannot be affected by
the act of another, having the quality of a poly-
pus; and though divid^ into one thousand
parts or pieces, each one became a unit or a
distinct whole; others have treated it as a right
of common, in which **quSibet tatum habet et
nihU habet" an indivisible unit of which, if the
man has not the whole, has nothing — and con-
sequently a majority cannot dispose of it. But we
do not think it necessary to search the lumber
garret of obsolete law, in order to give a show
of profound legal learning to an atourd conclu-
sion. The provisos in the different Acts of the
Legislature, which have been invoked as con-
ferring their power of obstruction on each one
of a thousand partners or stockholders, make
no new grant of a power or franchise, and
clearly refer to other valuable privileges, with-
out being open to such misconstruction.

Having, then, such evidence of the consent of
the Corporation as is required bv law,, we can-
not sav it is insufficient The allegations in the
bill, of irregularity or fraud in the election of
the officers of the Corporation, and obtaining
the Act giving such consent, even if sufficiently
pleaded, have not yet been proved, and require
no further notice.

I am of opinion, therefore, on this point of
the case, that the complainants have shown
no legal rights as stockholders of the Corpora-
tion of *• proprietors," &c., to interfere and
overrule the Act of Incorporation.

Nor have they alleged or shown such an im-
proper use of the common property of the Cor-
poration, or such deviation from its original
purpose, or abuse of the trusts confided to it,
as will entitle them to the interference of a
court of equity.

III. The last and third question for consid-
eration, is, whether the Railroad Company has,
by any valid contract, covenanted or agreed with
the complainants, or those under whom they
claim as assignees, that the railroad bridge
over the Passaic shall be forever fixed at Cen-
ter Street, so that the Company cannot, even
with the consent of the Legislature, and for its
own and the public benefit, change the location
of the bridge, shorten their road, and avoid dif-
ficult and dangerous curves.

As we have ^ready seen, the question of the
expediency or necessity for this cbanee of route
on the road, is not submitted to the decision or
discretion of the court. If the Le^slature has
authorized it, the railroad has a right to pro-
tect, unless bound by contract to maintain its
bridge where it at present stands.

The answer denies the existence of any such
contract.

Assuming that a contract, which is to have
the effect of forever restraining the improve-
ment of this road at this point, can be proved
bv parol, those who aver it must be held to
clear, consistent and undoubted evidence, as to
the parties, the consideration, and the precise
terms of such contract. Have we such proof?

Without wishing to make an v remarks which
may appear offensive to any of the highly re-
spectable witnesses who have given such contra-
dictory accounts of the transaction, it is too plain
to be overlooked, that mudi of this conflict

arises from the examination of persons as wit-
nesses who are the real parties in interest.

The transfer made pott litem motam in order
to constitute the complainant a partv to the
suit, is a veil too transparent to conceal the real
parties to the litigation.

But waiving this objection to the testimony
of certain witnesses, as also any invidious com-
parison of the credibility of very respectable
men, I must say that there is not such clear evi-
dence of a contract, its consideration, its par-
ties, or its terms, as would justify a court in
decreeing its specific execution.

It appears that originally the Railroad Com-
pany had purchased the commercial dock prop-
erty, with the view of erecting its bridge
there. As the Town of Newark was then built,
the railroad would pass along its lower bound-
ary. At this time railroads were an untried
experiment. It was a popular notion that it
would be of great advantage to a town or city
to have a railroad pass through its most fre-
quented streets — that it would advance the
value of property on the streets through which
it passed, and increase their commerce ; and
that curves in a railroad were preferable to
straight lines, being much more graceful and
no less useful.

From the prevalence of these notions, the
popular feeling became much excited ; and the
more so, that certain individuals of wealth and
influenee, who owned wharves on the river,
had shrewdly discovered that it would add
considerably to the value of their property if
the railroad, instead of crossing below it, could
be bent round behind it, and crossing above,
create an obstruction to the navigation of the
river above their wharves. Public meetings
were held, exhorting, entreating and advising
the railroad directors. Suits were brought bv
lot owners in the name of the Attorney-General,
threatening them with injunctions. £k>me want-
ed one thing, some another, and the result is,
perhaps, best described in the graphic language
of one of the witnesses:

"I can only say, tliat according to my rec-
ollection now. there was much confusion and
conflict of wishes among all the parties, and I
don't know how many parties I could count
up. I know there were sharp speeches and
feelings exhibited, as much so as upon anything
I ever saw in this town, and to my view at the
present moment, they were like two dogs that
had been quarreling, until they had got tired
and left off, and thejre was a sort of common
consent to abandon the conflict, and not to keep
the progress of the work from going on, by a
general assent of making the bridge where it
is now. The location of the bridge was the
result, but that there was any contract or
agreement that was to be final and conclusive
and not to be revoked, I know no such ar-
rangement as that. There was a cessation of
the confiict, and the work went on."

The directors, desirous of conciliating the
people of Newark, and expediting the comple-
tion of their road, yielded to the pressure, and
passed the following resolution, which had the
effect of allaying me excitement. It is dated
on the 24th of September, 1884, and is as fol-
lows :

*' Whereas, considerable diversity of opinion
has prevailed among the citizens of Newark

909

xii

relative to the location of the railroad bridge
across the Passaic River, and the location men-
tioned in the annexed resolution having been
agreed upon as a mutual acoommodauon of
conflicting interests, and with a view to the
settlement of all matters of controversy; now,
therefore, be it,

" Resolved, unanimously, that the railroad
bridge be located across the Passaic River at
the north end of the dock owned by Moses
Dodd, with a draw of forty-five feet in width,
provided that the right of way from the west-
em termination of said bridge, to the entrance
of the avenue on Market Street can be obtained
on reasonable terms, and provided idso that
the owners of the property on the above men-
tioned part of the route of the railroad shall
agree that the Company may use any moving
power thereon which they shall deem proper.

And on the 26th of December, the following
resolution was passed:

"Whereas, it is desirable that the bridge
across the Passaic River be definitively located ;
and whereas, further delay in order that all
difficulties mav be removed, is not deemed ex-
pedient, therefore—

" Resolved, that the bridge across the Passaic
River be, and the same is hereby definitely lo-
cated, immediatelv north of the dock lately
owned by Moses Dodd."

These resolutions of the Board, for the pur-
pose of proposing an accommodation of con-
flicting interests and putting an end to contro-
versy, seem to have brou^t the dispute to a
close, and received general acquiescence. But
these documents exhibit no contract, binding
the Corporation never to change the location of
the bridge under any change of circumstances.
They, accordinglv, retaineid the commercial
dock property, which was originally purchased
for the purpose of a bridge. This proposition
and resolution of the Board was for the sake
of peace. Those without had conflicting in-
terests— they were bound to no conditions; they
gave no consideration, except "ceasing to

810

quarrel when they got tired. *' Even the parties
who had brought suits to frighten the directors
were not bound to withdraw themselves. The
directors exercised their own discretion onder
the circumstances. But time, which changes
all things, has produced a great change in the
circumstances. Newark has become a great
city. Locomotives moving at a velocity of
forty miles an hour, which were then con-'
sidered the dream of the projector, are now
established facts. Curves have given way to
straight lines, and the notion that railroad cats,
darting through the most frequented streets of
a city, are eimer a convenience or a benefit,
has liecome obsolete. The conflicting interests
which inexperience and ignorance had origi-
nally product, need no longer to be propitiated
for the sake of peace. The people of Newark
no lonser object toiiaving the bridge located
where It was originally intended to place it,
and the people of New Jersey, by their Legib-
lature, have determined that it would be bene-
ficial to the public to have the old bridge, with
its narrow and troublesome draws, taken away,
a new one erected below, with larger and
better draws, and that the railroad should
pass through the city by the shortest route — by
a straight line, and not with short curves.

The complainants have shown no contract
made by themselves with the Railroad Com-
pany, nor have they shown any covenants run-
ning with the land, on which they as aasigoees
are entitled to a remedy at law, or relief in
equity.

Having thus disposed of the three great
points so ably discussed by the learned counsel,
the minor iraues of fact or law have become
immaterial, and need no further notice.

Lf^ a decree he entered in eaeh ef thMe eaeee^
dienueeing the bill, with eoeU,

Per Curiam, R. C« Orler. Circuit Judge.

Judgment j^ the Circuit Couri^diamiating eom-
pUUnant's hius, affirtned in the Supreme Ontfi
of neceesitff, the court being eguaUy dkided.

66 U. S.

GENEBAL INDEX

TO THB

FOUR VOLUMES CONTAINED IN THIS BOOK.

62, 63, 64, 65.

ACTION.

Sbs Corporation.

1. In Louisiana, the equitable owner of an ac-
count oan sustain an action for it in bis own name,
and assiflmments to prove his title may be received
in evidence.

Martin v. IhrMen^ 134

2. Where the W. T. Co. had the exclusive right to
use the Morse patent telegraph from Baltimore to
Wheeling, with branches to Washington and Pitts-
burgh, and the complaint is that messages are
diverted from those lines, and sent by circuitous
routes, and no contract is shown, the complainant
is entitled to no relief.

WcgUm TeUtpraph Co, v, Maoneiic Tde-

graph Co. 180

W&sUm TeUoraph Co. v. Penniman^ 101

3. A choice of lines may well be exercised, if there
>e no violatioh of the patent, although by circuit-
ous line, and can be no ground of complaint.

Idem. 101

ADMIRALTY.

Sbs Carrier, Collision, Jurisdiction and mar-

rriMx Law.

1. An alleffation of negligence of the master will
not let in the libelant to prove unseaworthiness of
the vessel.

McKiniay v. Morritih^ 100

2. The burden of proof of such allegation is on
the libelants and the testimony must be positive,
or so violently presumptive as by the rules of evi-
dence, to supply the want of direct proof.

Idem. 100

3. The agent of absent owners may libel, either in
his own name, as agent, or in the name of his prin-
cipals.

Idem, 100

4. From the nature of the contract of a bill of
lading, the consignee has a right to sue, in a court
of admiralty, for any breach of it.

Idem. 100

6. The Act of Congress of 28th February, 1846,
prescribing the jurisdiction of the federal courts in
admiralty upon the lakes, confines that jurisdiction
to ** matters of contract and tort uising in, upon
or concerning steamboats and other vessels ** em-
ployed in business of commerce and navigation be-
tween ports and4)lace6 in different States and Ter-
ritories upon the lakes.

Allen V. Newberry, 1 10

6. In suit upon contract of shipment of goods
between ports and places of the same State, the
District Court has no jurisdiction in admiralty, and
such jurisdiction belongs to the courts of the State.

Idem. 110

7. A proceeding in rem to recover for ooal fur-
nished a steamer engaged in navigation and trade
exclusively within California, is not the subject of
admiralty jurisdiction.

Moifuire V. Card, 118

8. It concerned the purely Internal trade of the
State.

Idem. 118

0. That commerce is necessarily left to regulation
by State authority.

Idem, 1 18

10. The 12th rule of the admiralty amended so as to
take from the District Courts the right of proceed-
ing in rem against a domestic vessel for supplies
and repairs on the authority of a Hen given by state
laws. Idem. 118

Bee How. 81, 82, 88, 81

11. Where the libelants agreed to raise a sunken
vessel in fourteen days, and proceeded under their
contract to raise the vessel, but not within the
agreed time, and the bargain was an unprofitable
one, the libelants cannot repudiate it, and file a li-
bel for salvage.

Bondi€9 V. Sherwood. 988

12. Assuming the services rendered to be in nat-
ure of salvage services, and that admiralty had ju-
risdiction to enforce the contract as a maritime con-
tract, yet the libelants, by their own showing, can-
not recover under the contract.

Idem. 288

13. And it is equally clear that they cannot repu-
diate their contract, and libel the vessel for sal-
vage. Idem. 288

14. Where the Act of the State imposes as a con-
dition to the privilege of carrying on the coasting
trade within her waters, the filing of a statement
in writing, setting forth : 1. The name of the vessel ;
2. The name of the owner, &c., and provides that
unless this condition is complied with, the vessel Is
forbidden to leave the port, under a penalty : held,
that there is a direct conflict between this Act of
the State and the Act of Congress regulating this
trade.

Sinnot V. Davenport, 248

1ft. This Act of the State is not merely the exercise
of a police power, not surrendered to the General
Oovemment, but reserved to the States.

Idem. 248

16. When an Act of a State prescribes a regulation
repugnant to and inconsistent with the regulation
of Congress, the state law must give way.

Idem, 243

17. Such Act of Alabama Is in conflict with the
Constitution and law of the U. S., and, therefore,
void.

Idem. 243

18. The case is, in all respects, like the one of Sin-
not V. Davenport, ante.

FngUr V. Davenport, 248

10. This steamboat was employed in aid of ves-
sels engaged in the foreign or coastwise trade
either in tne delivery of their cargoes in, or towing
to port, which was but the prolongation of the&
▼oyage.

Idem. 248

20. The case, therefore, is not distinguishable
from the one above referred to.

Idem, 248

21. A court of admiralty will not assume jurisdic-
tion of a contract of partnership in the earnings of
a ship.

Ward V. Thompson, 240

22. If a party desires an account, his remedy is in
a court of chancery.

Idem. 240

28. If his complaint be for a breach of some inde-
pendent covenant, he should seek his remedy in a
court of common law.

Idem. 240

24. A contract for building a ship or supplying
engines, timber, or other materials for her con-
struction, is not a maritime contract.

Roach V. Chapman, 204

26. People's Ferry Co. v. Beers aifirmed.

Idem. 204

28. Although the law of Kentucky may create a

lien in favor of the libelants, yet the local laws

oan never confer jurisdiction on the courts of the

United States.

Idem. 204

8lt

Ghkbeal brDsx

97. Id the words *' any veaael of any desoriptlon
whatsoever used in rivers or inland naviffation," in
the Act of March 8, 1861, the word "used** means
employed.

MooTt 0. Trangp, Co^ 974

28. But the business upon the ffreat lakes lylnsr
upon the northern frontiers, deserves to be placed
on the same rooting as commerce on the ocean ; and
Conirress could not have classed it with the busi-
ness upon the rivers, or inland navigation.

mm, 674

29. If Consrress intended to have excluded these
lakes from the limitation of the liabilities of own-
ers, it would have referred to them by a more spe-
cific designation*

Idem. 674

80. The policy and Justice of the limitation of the
liability or the owners, under this Act of 1861, are
as applicable to the navigation of these lakes as to
that of the ocean.

Idem. 674

81. CJomftieroe upon lakes l3ing within the State,
such as the Qiy uga or Seneca, is not Vlthin the reg-
ulation of Ckmgress.

Idem, 674

82. The Act applies to vessels only which are en-
gaged in foreign commerce and commerce between
the States. The purely internal commerce and nav-
igation of a State is exclusively under state regu-
lations.

idem. 674

ADVERSE POSSESSION.

1. Although the deed was not registered, adverse
possession was in itself notice that the grantee held
the land under a title the character of which the
complainant was bound to ascertain.

Lea V. PotH Co. Copper Co,, 908

2. By the settled construction of theTennessee Act
of Limitations, an unregistered deed is a sufficient
title on which the bar can be founded.

Idem, SOS

8. If two possessions were continuous for the
whole term required by the Act of Limitations,
then the bar was formed, and the defense com-
plete. Idem. 908
4. Possession, under a patent for lands from the
U. 8.. is adverse possession, and enables the pat-
entee to have the oenefit of the Illinois Act of Lim-
itations for seven years.

Orego v, t\>rtrythn 78 1

6. Residence on. and possession of land for seven
ears by a tenant, inures to the benefit of the land-
ord, so as to secure for him the protection of the
Act. Idem. 781

6. This protection Is not confined to the particu-
lar close upon which the claimant resides, but also
extends to the entire parcel of land of which the le-
gal possession has.been maintained as a consequence
of his actual possession and residence.

Idem. 781

AGENT.

SBX TKOtCr^AL AND AOSHT.

ALIENS.

1. By the laws of Mexico, heirs, being aliens,
could not inherit an estate.

MIddleUm v. MeOrew, 408

2. This law of descent is applicable to the landed
property of Texas.

Idem. 403

AMENDMENT,

Skb JuBisoicnoir.

APPEAL AND ERROR.

SBB JUBISDIOnON.

(1) Gexsrallt.

(2) Practicszn.

(1) gxnbrallt.

1, Appeals from circuit and district courts are
regulated by the Act of 1808, ch. 40, where not other-
wise specially provided for by Act of Congress.

Rkhmmka v. Mftioaufcee, 60

2. No appeal will lie, unless the sum or value in
controversy exceeds 12,000, and that fact must be
shown in order to give jurisdiction.

Idem. 60

8. For the purposes of examination In this court

It must be assumed that the facts of the case have

been correctly found by the jury.

Barreda v, SUabee,

4. In trials at common law no quettloa of law

can be reviewed In an appellate court upoo writ
of error (except only where it arises upon the pro-
cess, or pleadings or judgment), unless the facts
are found by the jury, by a general or special ver-
dict, or are admitted upon a case stated In the nat-
ure of a special verdict*

CampMl V. BnyreaUf 06

6. The finding of issues in fact by the ooort upon
the evidence is unknown to a common law coart,
and cannot be recognised as a judicial act.

Idem, M

6. Nor can any exception be taken to an opinion
of the court upon the admission or rejectioo of
testimony, or upon anv other question of law
which may grow out of tne evidence, unless a jury
was impaneled, and the exception reserved white
they were at the bar.

Idem. 06

7. And as this court cannot regard the facts found
by the judge as having been judicially determined
in the court below, there are no fac^ before m
upon which questions of law may have arisen, and
no questions, therefore, open to our revision.

Idem. 06

8. Oonsequentlv. as the drouit Court had juris-
diction of the subject-matter and the partJea. and
there is no question of law or fact open to onr re-
examination. Its judgment must be affirmed.

Idem. 06

9- After the authenticity of a grant of land in
California is ascertained in this court, and a refer-
ence made to the District • Court, to determine the
bounds of the grant in order that final confirmation
maybe made, another appeal cannot be claimed
until the whole directions of this court are com-
plied with, and that decree made.

UnUed Stalee v. FoeaaU, IM

10. This court cannot review a judgment of the
Parish Court of New Orleans for any irregularity
or illegality in the proceedings of thivt court.

Adams v. Preettm, S7S

11. This court has never done so In any case In
which the subject-matter of a suit was within the
jurisdiction of a state court, upon the allegation
tbatits judgment had been given contrary to the
laws of the State.

Idem, S7S

12. The Parish Court of New Orleans bad, by law.
full power over the property ceded by an insolv-
ent, and the claims of creditors, and exfsrdaBd its
jurisdiction, and the legality of its judgment can-
not be questioned by this court.

Idem. S73

18. Where the evidence Is contradictory on the

auestlon of f raud and imposition on the officen,
lis court will not overrule the finding of facts by
the courts below.

LytU V. ArkartMe^ S06

14. where the doubtful character of the daim
under a Mexican grant, and entire want of any
merits upon the testimony appears, the decree of
the court below will be reversed, and the case re-
mitted for further evidence and examination

VnUed StaUev. OaXhraUiu 391

16. A question, not made on the trial or presented
to the court below for decision, cannot be enter-
tained here.

Int. Co. V. Mordeeai. 04

16. Under the 25th section of the Judiciary Act,
no appeal can be taken from the final dedalon of
a state court of last resort, to the Supreme Court
of the U. S.

Verden v. Coleman, 836

17. A writ of error alone can bring up the eaune.
Idem. 3M

18. This court will not reverse a decree, merely
upon a doubt created by confiictlng testimony as
to damages.

PhUa,. WU. A Bail. R. Co. v. PML A Hubert dc
Qrace RUam Towboat Co., 4S3

19. Instructions given by the court at the trial
are not to be regarded as the subject of error, on
account of omissions not pointed out by the except-
ing party.

CoMtle V. Btdlard, 4t4

20. If the defendants had asked that more ex-

S licit instructions should be given, and the prarer
ad been refused, this objection would be entitled
to weight.

Idem. 494

21. Where explanations immediately preceded
the instructions embraced in the exceptions, thr
instructions excepted to must be considered in con-
nection with those explanations.

Idem. 494

28. A writ of error does not act upon the parties;

QmncifcATi Ihdkx.

It acts only OB the record, hj removing' the record
into the supervlsinfir tribunal.

NalUmi V, Johnarm, 6S8

28. A writ of error is aoontinuaUon of the origi-
nal limitation rather than the commencement of a
new action.

Idem. 69S

24. The District Gourt erred in refusing to receive
evidence to impeach a deed for fraud.

CharuUer v. Von Roed/er^ 688

25. Where it appears from the charge tbat the
decision of the court was favorable to the plalntiif,
he has no cause for complaint upon his exceptions
to the competency of the evidence.

Idem. 688

26. An error, one favorable to the plaintiflto in
error is not a ground of reversal.

jThompsonv. JRoherte, 648

27. The Act of 1802, chap. 82, which authorises a
a certificate of division, did not intend to give this
court jurisdiction, in that mode of proceeding, of
any question of common law orequlty, that would
not be open to revision here upon writ of error or
appeal.

WMnin» V. Qray^ 688

28. A decision of the inferior court, upon a ques-
tion depending upon the exercise of judicial dis-
cretion in a matter of practice as to the mere
form of proceeding, is not open to revision in this
court.

idsm. 688

28. This discretion is a matter of practice resting

exclusively with the inferior court, and no appeal

will lie from its decision, made In the exerciw of

this discretionary power.

Idtm. 688

aOL This court will not assume jurisdiction and
exercise appellate powers over such questions
when they come before it on a certlllcate of di-
vision.

Idem, 688

81. The Act of 18G2 contemplates a suit in court,
in which plalntiif and defendant have both ap-
peared; but where there Is no party but the one in
whcMie behalf the motion is made, and no defend-
ant is named, and no process prayed for. the legal-
ity of this proceeding cannot be certified to this
court for its opinion.

Idem. 688

32. That this case was not one for equity jurisdic-
tion, that certain persons should have been made
parties, that the sources of title had not been set
out in the bill, that the probate proceedings in the
court of New Orleans are yet pending, and that the
same court has exclusive jurisdiction ; held, im-
material objections.

Oaine% v. Hennen^ 770

(2) Practicb nt,

1. Where a writ of error was returnable last term
and it appearing that there was no final judgment,
the case was then dismissed, for want of jursidio-
tlon. A motion to annul the judgment of last
term, and reinstate the oasct upon a further tran-
script showing a final judgment, cannot be granted.

Rice V. Mlnne9ot4i A N. Wn. R. R. Co., 31

2. It was judicially acted on and decided by this
court, and when the term closed that decision was
final so far as concerned the authority and juris-
diction of this court under that writ.

Idem. 81

8. The writ of error was fwiettu officio, and if

the parties desire to bring the record case again l>e-

f ore this court, it must t>e done by another writ of

error.

Idem. 81

4. Neither the laws nor the practice of any State
can authorize a proceeding in the courts of the
V. S. different from that which was established by
the Acts of 1789 and 1808.

Campbell v. Boi/reau, 06

5. A writ of error returnable on the third Monday
in January cannot be supported, and does not
bring the case before the court.

Porter v. Foley, 154

0. In such case as the court cannot exercise a
power of amendment, they can do nothing more
than dismiss for want of jurisdiction.

Idem. 164

7. But the plaintiff may withdraw the transcript,
and use It in connection with the proper process to
bring the case here.

Idem, 154

8. No case can be taken up out of its order on
the docket, where private interests only are con-
cerned.

See How. 21, 23. 28, 24.

U. 8. V. FomaUt 185

9. The only cases where this rule does not apply
are those in which the question in dispute will em-
barrass the government while It remains unsettled.

Idem. 185

10. When a case in sent to a court below by a
mandate from this court, no appeal will lie from
any order or decision of the court until it has
passed its final decree is the case.

Idem. 185

11. Where the appeal was dismisMd 27th February
1867, and the appellants filed the record and docket-
ed the case 8d April, 1867, and there is no statement
of any other appeal,and this seems to be the appeal
that was docketed and dismissed ; held, that this
appeal cannot be sustained.

Roger8 v. Law, 808

12. Writ of error must be returnable on the first
day of the term. A writ with a different return day
is not authorised by law, nor by the rules and prac-
tice of this court.

Inn. Co. V. Mordeeai, 889

18. Neither ean the writ of error be amended.

Idem. 880

14. The defect can be cured only by the voluntary

appearance of the party entered on the record.

Idem. 889

16. Nor can the mistake be corrected by a citation

from this court.

Idem. 889

16. The case must, therefore, be dismissed.
Idem. 889

17. This court has no appellate power over the

Judgment of the court below, unless the judgment
s brought here by writ of error sued out by the
party who alleges error.

Hodge V. frflliams, 887

18. This court has uniformly refused to amend
writs of error.

Idem. 887

19. It is the duty of the party who desires to bring
a case before this eourt. to see that proper ana
legal process is sued out ; and If he fails to do so, the
writ of error must t>e dismissed.

Idem. 887

20. Where the loose papers certified have neither
the form nor substance of a record, and no excep-
tions were taken, and jury was waived, and the
fiscts were submitted to the court, there is nothing
for this court to try.

LawUr v. ClaMin, 889

21. When no writ of error has been certified with
the transcript, and the paper purporting to be a
writ of error, being without seal* was void, and two
terms of this court have intervened, not including
the present term, since the transcript was certlfieid
without a writ of error, the cause must be dis-
missed.

OoerUm v. Cheskt 885

22. Where cause, as presented to this oourt,simp]y
shows a judgment in favor of defendant in error
with regular pleadings to warrant it, and beyond
this, contains nothing that this court can notice, as
a court of error, the judgment below will l>e af-
firmed.

New OrUane v. Qalnee^ 895

28. The objection, that a contract cannot be

proved by one witness, according to the law of

Louisiana, should have been made to the court

below.

CuetiOfi V. EmmerUnOt 800

24. Where the case stated, made by the judge to
whom the cause was submitted, finds factSi and not
evidence of facts, this couri cannot Inquire, unless
upon bill of exceptions, properly taken, whether
the evidence was sufficient to justify the finding
of the court.

Idem. 800

26. In a proceeding in the nature of a bill In equity
to foreclose a mortgieige, an appeal, and not a writ of
error, is the appropriate mode of bringing the case
before this court.

BmtfliCer v. Wakefield, 801

28. The laws or practice of a Territory cannot
regulate the process by which this court exercises
its appellate power.

Idem. 801

27. In foreclosure action, it is not necessary that
parties who acquired liens on the mortgaged

1>remises subsequent to the mortgage should Join
n the appeaL

Idem. 801

28. A defendant in equity, whose interest is sep-
arate from that of the other defendants, may ap-
peal without them.

Brew9Ur v. WdkeJIeld, 801

Gbkkral Irdbz.

S9. A writ of error to operate as a lUfMrMdeot,
must be tesued within ten days after judmeot, and
on aeourity given for a sum exceeding the amount
of thejudgmi-nt.

If. S. V. Addison, 804

80. The writ of error, is the legal mode of revising
the Judgment ot the Circuit Court in this case ; and
security having been given on the Judgment, as the
'•aw requires, it is superseded.

Ickm. 804

81. A writ of error will lie from this court upon
Judgments of the circuit courts awarding a per-
emptory mandamua, if the matter in controversy
is of sufficient value.

Idem, 804

32. The salary of the Mayor of Georgetown is
$1.(100 per annum, and if this be the matter of con-
troversy, it settles the Jurisdiction.

Idem, 804

83. That the remedy by writ of error is ineffect-
ual, as the office of the relator will expire about
the time the writ of error is made returnable, may
be a defect in the law, but cannot affect the case.

Idem, 804

84. Where the language of the Act is ** the appeal
shall be considered as dismissed " where the notice
is not filed as required, the court cannot say it
shall not be so considered.

FlurMdev. U.S., 848

85. The Act of August 81st, 1868, as to appeal from
the Board of Commissioners is mandatory on the
court, and authorizes the exercise of no discretion.

idem. 848

86. Where no question was raised upon the trial
in the court below for the consideration of this
court, and none was made here, and the writ of
error was obviously sued out for delay, this court
will affirm the Judgment with ten per cent, damages
and costs.

KUboume v. Stale Saolnge InttUutUm 9f
8t, Louie, 870

87. Where in a suit on a promissory note executed
by defendants, they did not have any defense, and
entered a false plea, which was overruled, and re-
fused to plead in bar, and Judgment was entered
against them for want of a plea, and they do not
allege any error, the Judgment will be affirmed,
with ten per cent, damages.

Sutlon V, Bancroft, 454

88. This court will not reverse a decree of the
Circuit Court merely upon a doubt created by con-
flcting testimony.

Jinrewood v, Eneqttiet, 516

80. Upon motion to dismiss appeal upon the

ground that no appeal bond was given, the court

gave appellantsixty days to give and file the bond.

Angttn V. Blue Riage R.R, Co,, 51 7

40. Where the record suggests many points which
cannot be considered upon motion to dismiss, the
court will refuse the motion.

Day V, Waehbum, 551

41. But will allow it to be brought to the notice of
the court again, when the case shall be argued
upon its merits.

"idem, 551

48. On motion to vacate the order dismiwing the
cause, it appeared that no appeal had been granted ;
and that toe cause was not before this court, when
the appellee made his motion to docket and dismiss
it; motion granted.

U, S, V. Oomez, 558

43. A motion to docket and dismiss a cause from
the failure of the appellant to file the record
within the time required by the rule, when granted,
is not affirmance of the Judgment of the court
below.

Idem. 558

44. It only remits the case to the court below to
take proceedings to carrv that Judgment into
effect, if in the condition of the case there is nothing
to prevent it.

Idem, 558

45. That is for the consideration of the court
below, with which this court has nothing to do, un-
less its denial of such a motion gives to the party
concerned a right to the writ of mandamus.

Idem. 558

40. The case being before the court also upon a
motion for mandamus, it will not consider it, be-
cause this court had no Jurisdiction of the case
when it was dismissed, and the appellee had no
right to make that motion.

Idem. 558

iTi, In a case in which the court had no Jurisdic-
tion, and the Judgment in the court below bad been
obtained by contrivance, the court will vacate the

order for the dismission of the case, aod recall the
mandate.

Idem. 65f

48. Where defendants on refusing or neglecting to
plead were deflsttlted and Judgment was given for
plaintiff, and defendants sued out a writ of error
but failed to appear, and have net assigned error
in this courts and it is obvious, from an Inspection
of the transcript, that there la no error in toe pro-
ceedings, the Judgment affirmed, with ten per cent
damages.

Jenkins v. Banningf 580

40. Motions to amend mere formal defects in the

pleadings are always addressed to the discretloa of

the court, and their allowance is never subject

of error.

Idem, 580

80. Where the record shows that the defendant
appeared in the subordinate court, and litigated the
merits there to final Judgment, he cannot defeat
an appeal by removing from the Juriadlctton, so as
to render a personal service of the citation im-
possible.

Nations v, Johnson, OS8

61. In that state of facts, service by publication,
according to the practice of the court, is free from
objection, and is amply sufficient to support the
Judgment of the appellate court.

Idem, 688

62. A bill of exceptions does not bring Into this
court any of the prior proceedings for revision.

Idem, 688

88. It is the practice of this court to hear motions

to dismiss, on the day assigned for busloeaaof that

description, before the case is reached In the

regular call on the docket.

Danldson v, Lanier, 796

64. Notice of the motion must be given to the

plaintiff in error or appellant long enough before

the motion is heard, to give him opportunity to

contest the motion.

idem. 796

66. The length of notice must depend upon the
distance of the counsel or party from the place of
holding the court, and must be long enough to en-
able him to arrange his business and roaoh the
court.

Idem. 786

68. Distant counsel cannot be expected to attend
the court merely to guard against the possibility
of a motion to dismiss.

Idem, 796

67. Where there is no proof of the actual servloe
of the notice, and the case is so hite on the docket
that it could not be reached during the term, the
motion will be continued to the next term, then to
be heard on thirty days* notice, where the counsel
reside in Mississippi.

Idem. 796

ASSIGNMENT.

BBS EQUITT, FORMSR ADJUDICATIOir.

1. In Rhode Island an assignment is not voidable,
because there is a reservation in it to the assignor
of the dividends of such creditors as should refuse
to become parties to it, and to release their de-
mands in consideration of the dividends they
might receive.

Lioermore v. Jenehes, 55

8. It would have been had the assignment been
made in New York by persons residing there.

Idem. 55

8. But the assignment is such an one as, by the
laws of that State, merchants, and others residing
there, are allowed to make in flavor of crediton
wherever the property of the assignor may be.

4. The oomplalnants never had any lien upon the
property in New York, so as to subject it legally
or equitably to their demand.

Idem, 55

BANKRUPTCY.

Where the mortgagor wss declared to be bank-
rupt, and his propc^y and rights of property were
vested in an assignee appointed by the court, and
the assignee conveved by deed, it vested in the

Surohaser such tiUe as the bankrupt had at the
ate of the decree declaring him a bankrupt.
Cleveiand Ins. Co. v. Reed,

BIGAMT.

1. A charge of bigamy, in a criminal proatcutloa.

es, 68, 64, 6S r. 8,

Gbnxral Irdxx.'

cannot be proTed bT any reputation of marrla|re.
There must be proof of actual marria^ before the
accused can be convicted.

Qaineav. Hennen, 770

2. But in a civil suit, the confession of a bigamist
will be sufficient, when made under circumstances
from which no objection to it as a confession can
be implied.

Idem. 770

8. A judicial invalidation of marriage at any time,
for the bigamy of a party to it, relates back to the
time of the marriage and places the deceived in a
free condition to marry again, or to do any other
act as an unmarried woman, without any sentence
of the nullity of the marriage.

Idem, 770

BILLS. NOTES AND CHECKS.

Sas Corporations, Partnkrs.

1. The law merchant accords protection to a
holder of a bill of exchange taken in the course
of business for value, and without notice.

Combs V. Hodge^ 116

2. But this is a departure from the fundamental
pHnciple of property, which does not permit one to
transfer a better title than he has.

Idem, 116

8. The party who claims the benefit of the ex-
ception to this principle, must, in cases of bills of
exchange that nave originated in fraud or illegal-
ity, establish that he is not an accessory to the
illegal or fraudulent design, but a holder for value.

Idem. 116

4. If the bill is taken out of the course of trade

aa overdue or with notice, the rights of the holder

are subjected to the operation oi the general rule.

Idem. 116

6. When the instrument is not negotiable, or the
negotiability has been restricted by the parties, the
rule of the law merchant has no application.

Idem. 116

6. In such case the loss of the instrument with
the name of the payee upon it, or its transfer by a
faithless agent, dees not impair the title of the
owner.

Idem. 116

7. Nor can a purchaser safely draw any conclu-
sion, from the existence of an indorsement on such
a paper, that the holder is intitled to sell or to
discount it.

Idem. 116

8. Nor can the holder write on such non-negotlar
ble paper an assignment or guaranty not author-
ixed by the indorser.

Idem. 116

9. A check on a bank, payable at sight, and which
an agent to raise money on negotiable paper, took
as money, and which was paid to a bt}nafiae holder
by the cashier, is money.

Poorman v. Woodward, 161

10. The note or bill purchased by such check was
sold for money; title passed to the purchaser: and
the principal was bound by the contract of the
agent.

Idem. 161

11. On payment of bill of exchange by the in-
dorser. It does not cease to be assignable.

McCarty v. RooU, 109

12. The various indorsers to an aooommodation
bill are not, unless by special agreement, bound to
pay in equal proportions as oo-sureties.

Idem. 102

13. The fact that. the bills were assigned to the

Slalntiff as collateral security for a pre-existing
ebt, does not Impair his right to recover.

Idem. 109

14. Where, in action against trustee on bill of ex-
change, the averments in regard to the assignment
nowhere show that the trustee has sufficient funds
In his hands to pay this bill, the pleadings are
defective.

Idem. 109

15. Proof of the attending circumstances, un-
der which Indorsers placed their firm name upon
the back of the note, is admissible under the gen-
eral issue.

Rey V. SimpeoUt 90O

16. When a promissory note, made payable to a
particular person, or order, is first indorsed by a
third person, such third person is held to be an
original promisor, guarantor, or indorser, accord-
ing to the nature of the transaction and the under*
standing of the parties.

Idem. 90O

17. If he put his name on the back of the note at

See How. 21, 22, 28, 24.

the time it was made, aa surety for the maker, and
for his accommodation, to give him credit with the
payee, or if he partidpated in the oonsideratian,
for which the note was given, be must be con-
sidered as a joint maker of the note.

Idem. 90O

18. If his indorsement was sutMcquent to the
making of the note, and he put his name there at
the request of the maker, pursuant to a contract
with the payee for further indulgence or forbear-
ance, he can only be held as a guarantor.

Idem. 90O

19. If the note was intended for discount, and he
put his name on the back of it, with the understand-
ing of all the parties that his indorsement would
be inoperative until It was indorsed by the payee,
he would then be liable only as a second indorser
and, as such, would be entitled to the privileges
which belong to such indorsers.

Idem. 90O

SO. Parol proof, of the attending circumstances
of the transaction, is admlasible in evidence.

Idem. 900

21. Where persons placed their names as in-
dorsers at the inception of the note, not as a col-
lateral .undertaking, but as joint promisors with
the maker, they are as much affected by the con-
sideration paid by the plaintiff, and as clearly liable
in the character of erlginal promisors, as they
would have been if they had signed their names
under the name of the other defendant upon the
inside of the Instrument.

Idem. 900

22. Where plaintiff alleged that the defendants,
whose Arm name Is on the back of the note, placed
it there for the purpose of becoming sureties and
security to him as payee for the amount therein
specified, that allegation is all that is required by
the Code of Minnesota Territory to maintain the
«uit against defendants as original promisors.

Idem. 90O

SS&. Where a party to a negotiable instrument in-
trusts it to another with blanks not filled up, it car-
ries an implied authority to fill up the blanks and
perfect the Instrument.

Bank of PUttburgh v. Neat, 898

24. A bona Me holder of a negotiable instrument,
for a valuable consideration, without notice of the
facts which impeach its validity between the ante-
cedent parties, if he takes it before due, may re-
cover thereon, although, as between the antecedent
parties, the transaction may be without any legal
validity.

Idem. 893

26. The effect of the words, *' second of exchange,
first unpaid," which appear on the face of the bills,
is a question of law, and not of fact for the jury.

Idem. 898

28. Either set of bills of exchange may be pre-
sented for acceptance, and if not accepted a right
of action presently arises, upon due notice, against
all the antecedent parties, to a bill, without any
others of the set being presented.

Idem. 893

27. If either of the set be presented, and is ac-
cepted, the Indorsee may properly negotiate the
bill, and a bona fide holder for value, without notice,
may acquire a good title.

Idem. 898

28. Where two bills were filled up, and negotiated
by the correspondent of defendants, to whom the
blank acceptances had been intrusted as a single
bill of exchange; for the acts of their correspond-
ent, in that behalf, defendants are responsible to a
bona fide holder for value, without notice that the
acts were performed without authority.

Idem. 898

28. If the defendant himself had Improvidently

accepted two bills for the same debt, he is liable to

pay both,ln the handi|of Innocent holders, for value.

Idem. 898

80. Going several times to the office of the ac-
ceptors of a bill in order to demand payment for the
same, and finding the doors dosed, and no person
there to answer the demand, is a sufficient demand.

Witteman v. ChiavpeUa, ^80

81. Further inquiry for them was not required by
the custom of merchants.

Idem. 400

82. From such an artifice the law will presume
that they did not Intend to pay the bill on the day
when it has become due, and that further inquiries
need not be made for them before a protest can be
made for non-payment.

Idem. 400

88b A demand for payment need not l>e personal,

815

Gbnxral Index.

and It will be sufficient If it shall he made at ac-
ceptor's house or place of business In business hours.
Witieman v. ChiapeZZo, 466

84. It Is sufficient if the bill shall be taken to the
residence of the acceptors, as that may be stated In
the bill, for the purpose of demanding payment,
and to show that the house was shut up, and that
no one was there.

Idem. 466

as. Presentment for payment must be made on

the day the bill falls due ; and if there be no one

ready at the place to pay the bill, it should be

treated as dishonored, and protested.

' Idem. 466

86. In the presentment of a bill for payment, the
demand may be made of a merchant acceptor at his
counting-room or place of business.

Idem. 466

87. If that be closed, so In fact that a demand can-
not be made, or the acceptor is not to be found at
his place of business, and has left no one there to
pay it, further inquiry for him is not necessary.

Idem. 466

88. Presenting a bill under such circumstances at
the place of business of!the acceptor, will be prima
facU evidence that it has been done at a proper
time of the day.

Idem, 466

8B. The notary is protected where the protest was
made in conformity with the practice and law of
the place where the bill was payable.

Idem, 466

BONDl^.

Sbb Mandamus, Principal anj} Surstt.

1. Oertiflcates of the public debt of the Republic
of Texas, issued to a person or his assigns, were
transferable by him or his attorney only on the
books of the commissioner of the State.

Onhbs V. Hodge^ 115

2. Where the owner did not direct their sale and
they were not sold on his account, if there had been
a power of attorney to the agent selling, containing
an authority to sell, the drcumstances imposed
upon the defendant the necessity of showing there
was no collusion with the agent.

Idem. 115

8. Where bonds of a county were issued in pur-
suance of a public statute of a State, any person
dealing in them is chargeable with a knowledge of it.

Knox Co. V. Aapinwall, 908

Knox Co. V, Wallace, 911

4. When full power is conferred upon the Board
of Commissioners to subscribe for stock and is-
sue bonds, when a majority of the voters of the
county have determined in favor d( the subscrip-
tion, after due notice of the time and place of the
election, whether or not the election has been prop-
erly held, and a majority of the votes cast in favor
of the subscription, is a question for the Board.

Idem. Sll

6. After the authority has been executed, the
stock subscribed, and the bonds issued and in the
hands of innocent holders, it is too late, even in a
direct proceeding, to call in question the dedslon
of the Board.

Idem. Sll

6. Much less can it be called in question, in a col-
lateral way,to the prejudice of a bona >lde holder of
the bonds.

Idem. ail

7. Where the bonds, on their face, import a com-
pliance with the law under which they were issued,
the purchaser is not bound to look further for evi-
dence of a compliance with the conditions to the
grant of the power.

Idem. Sll

8. A suit can be maintained upon the coupons
without the production of the bonds to which they
had been attached.

Idkm. Sll

0. Bonds of Railroad Company were issued and
were payable in blank, no payee being inserted.
Held, that it was the intention of the Company by
Issuing the bonds in blank, to make them negotia-
ble, and payable to the holder, as bearer, and that
the holder micht fill up the blank with his own
name, or make them payable to himself or bearer,
or to order.

White V. R. R. Co., 291

10. Until the plalntilf chose to fill up the blank,

he is to be regarded as holding the bonds as bearer,

and held them In this character till made payable

to himscl r or order. At that time he was a oltlcen

816

of New Hampshire, and oompeteot to bring the
suit.

Idem. 991

11. Repeated decisions have settled the qaestlon
of the negotiability of this class of securities.

Idem. S91

12. Certificates of loan. with oertiOcates for inter-
est attached, are callea bonds, with coupons for
interest; but neither the instrument or coupons
has any of the legal characteristics of a bond, either
with or without a penalty, though both are written
acknowledgments for toe payment of a debt.

Amey v. Mayor, At., of Allegheny Ctty, 614

18. Where an Act of a State L^lalature author-
ized a City to subscribe to the capital stock of a
Railroad Company to be paid for by the Issue of
certiflcateeU>f loan, and the Railroad Company took
from the City oertiflcates of loan In payment of the
subscriptions, and sold them, and with the money
built the road, such contemporaneous actioD«byaJI
the parties interested, proves that the authority
given to the City had been carried out Just as It was
meant to have been.

Idem. 614

U. The several Acts of the Assembly of Pennsyl-
vania, stated in the case, conferred authority on the
City of Allegheny to issue certificates of loan, oCfaer-
wise bonds with coupons to pay for Its subscrip-
tions to the capital stock of the Raiiroad Company.

Idem. 614

16. The bonds or certificates of loan whliA were
issued are not null and void, because the debt of the
City had reached a limit mentioned in Its charter,
prior to t be subscription, nor because the ordinance
of the City directing the issue for the payment of
the subscription had not been reoordea within
thirty dasrs.

Idem. 614

16. When they are in the hands of bona jlde
ferees, it would be Inequitable if the City could
pudlate them, and especially, if that were allowed
to be done upon the ground of any fault In the
Corporation in their Issue.

Idem. 614

17. They are not null and void for any Irregu-
larity connected with that Issue by the City of
Allegheny.

Idem. 614

16. Where the Common Council of a City sub-
scribed to a stock of a Railroad Company, and is-
sued bonds, in the name of the City, and delivered
the same to the Railroad Company in payment for
the stock.

BiaseO v. Jeffer$nnviUej 664

19. Plaintiffs became the holders for value, and In
the usual course of their business, of some of these
bonds, and brought suit en coupons for the Interest.

Idem. 664

20. Laws, to obviate mistakes and irregularities In
the proceedings of municipal corporatiaos, when
they do not impair any contract or Injuriously af-
fect the rights of third persons, are within the legis-
lative authority.

Idem. 664

21. Authority on the part of the common oouneO
to subscribe for the stock and to issue the bonds on
the petition of three fourths of the legal voters of
the Citv, is shown to have existed.

Idem.
S. By the terms of an explanatory Aot« It
authorized to ratify and affirm the sobscriptkn. If
the obligation or llabilitv incurred had been con-
tracted on the petition of three fourths of the legal
voters of the City.

Idem. 664

28. The Board unanimously resolved to ratify and
confirm the contract with the Railroad Oompany,
and subsequently issued the bonds, redUnf tneach
that it was issued by authority of the Oommoo
Council of the City, ^* three fourths of the legal
voters of the City having petitioned for the same at
required by the charter/*

Idem, 664

24. The record of the resolution ratifyiiv and
confirming the contract, and the recital m the
bonds, furnish conclusive evidence in this ease that
the Common Council did readjudlcate the ooei-
tion, whether the requisite number of tiie legal
voters of the City haa signed the petition.

Idem, 664

25. When the contract had been ratified and af-
firmed, and the bonds issued and dellvared to the
Railroad Company In excluuige for the stock, it was
then too late to call in question the fact detonnised
by the Common Council, and, a fartinrL It Is too
late to raise that question in a ease like the preMot

«d, 68, «4, 9qV.S.

Gbnbral Indbx.

▼II

where it to shown that the plaintlflB are innocent
holdera for value.

Idem. »•*

2B. Where, in the bonds or the reoorded proceed-
ings, there is nothing to indicate any irregularity,
or even to create a suspicion that the bondfl had not
been issued pursuant to a lawful authority, the
Railroad Gompau v and its assigns had a right to
assume that they Imported verity.

Idem, 664

21. The rule that a corporation, as an individual.
Is held to a careful adherance to truth in its deal-
ings with other parties, and cannot, byltsrepre-
-seutations or silence. Involve others in onerous
engagements, and then defeat the claims which
its own conduct has superinduced, again stated.

Idem. 664

28. Power was given in the Pennsylvania Act of
the 9th February, 1868, to the Commissioners of But-
ler County, to make the County bonds upon which
the suit is brought in payment for subscription to
capital stock of a Railroad Company, and to bind
the County to pay them.

Curtis V, County of Butler, 740

89. These bonds having been signed by but two of
the said Commissioners, are binding on the County
where the Act declares that two of the Commls-
«ioners shall form a Board for the transaction of
business, and makes the bonds valid if made by a
majority of the-Commissioners.

Idem. "*o

BOUNDARIES.

Sbs Lakds.

BRIDGES.

1. Every bridge over a river is not necessarily a
nuisance.

3fanor V. N. J. R. A T. Co., 799

2. Court has no power to arrest the course of pub-
lic improvements, on account of their effects on the
value of property, appreciating It in one place, and
depredating it in another.

fdem. 799

3. An individual cannot recover, in a court of law
or equity, special damage, as for a common nui-
«anoe. if the erection complained of be not a nui-
sance.

Idem. 799

4. A bridge authorized by the laws of a State can-
not be treated as a nuisance under the laws of that
State.

Idem. 799

5. The police power of a State includes the regu-
lation of highway and bridges within its l>ounda-
ries.

Iden^. 799

A. Congress has never assumed the exercise of
such a power, nor has it by anv legislative Act
conferred this power on the courts.

Idem. 799

7. A court cannot, by arbitrary decree, restrain
the erection of a bridge, or define its form and pro-
portions. These are subjects of legislative, not
Judicial, discretion.

Idem. 799

8. It is a power which has always been exercised
by State Legislatures over rivers wholly within
their jurisdiction.

Idem. 799

9. Congress has the exclusive power to regulate
commerce, but that has never been construed to in-
clude the means by which commerce is carried on
within a State.

Idem. 799

10. Congress has never attempted to regulate
canals, turnpikes, bridges and railroads.

Idem. . 799

11. When a city Is made a port of entry. Congress
does not thereby assume to detract from the sover-
eign rights t>efore exercised by each State, over its
own public rivers.

Idem. 799

12. Congress 'may establish postoffloes and post
roads, but this does not affect or control the abso-
lute power of the State over highways and bridges.

Idem. 799

18. Congress, by conferring the privilege of a port
of entry upon a town or city, does not come in con-
flict with the police power of a State exercised in
bridging Its own rivers below such port.

Idem. 799

14. The police power to make bridges over its pub-

lic rivers to as absolutely vested in a State, as tbe
commercial power to in Congress.

Idem. 799

15. Htotory of the legtelative and other transac-
tions, connected with the right of the proprietors,
of the bridges over tbe rivers '* Passaic and Hack-
ensack," given.

Idem. 799

16. Tbe ** proprietors of bridges.*' &c.. have no
monopoly for bulldlngof bridges within tne bound-
aries specified in the New Jersey Act.

Mem. 799

1. Broker's oommifiBion,on tbe sale of real estate,
to earned when the terms of the contract as to the
sale was specific, and everything was done that
could t>e done by the purchaser to carry out the
contract, although the vendor, without acy reason,
refused to complete it, unless there was an express
understanding that the vendor was to pay nothing,
unless he should choose to make the sale.

Koek V. EmmerlinOt 999

CARRIER. «

Sex Houdat.

1. Carrier by water to liable for loss unless It
happen from the act of God, or the public enemy,
or by act of the shipper, or from some other
cause or accident expressly excepted in the bill of
lading.

The Niagara V. Cnrdee, 41

2. When unable to carry tbe goods to their place of
destination, from causes over which he hss no con-
trol, as by tbe stranding of the vessel, he to stiU
bound to take all possible care of the goods.

Idem. 41

8. And Is responsible for every loss or injury
which miffht have t)een prevented by human fore-
sight, skin and prudence.

Idem. 41

4. Where a loss or damage is shown. It to incum-
bent upon tbe carrier to bring it within the ex-
cepted peril, to discharge himself from responsi-
bility.

Idem. 49

5. Losses arising from the dangers of jiavigation
are such as happen in spite of human exertions, and
which cannot be prevented by human skill.

Idem. 41

6. When such efforts fail to save the goods from
the excepted peril, the ultimate loss and damage In
judgment of law results from the first cause.

Idem. 41

7. It depends upon the proof, whether the act of
the master, in seeking Hhelter in a harbor, was rea-
sonably necessary ; and if it was, then he to not in
fault.

Idem. 41

8. Masters have a right, and oftentimes it to their
duty, to seek shelter m>m a storm.

Idem. 41

9. Master guilty of gross negligence, for not hav-
ing made any effort himself, or requested the aid
of others, either to get the steamer off when strand-
ed, or to remove and restore the goods.

Idem. 41

10. A master cannot abandon hto ship and cargo
upon any grounds when it is practicable for human
exertions, skill and prudence, to save them from
Impending peril.

Idem. , 41

11. The consignee of a ship has no right to demand
the freight upon the whole shipment, when he was
only ready to deliver a part of it.

BriJtUmv.Bamaby^ 177

12. Where a shipmaster has a larger shipment un-
der one bill of lading than he can land in a day, he
must do it in such quantities that he may t>e able
to have the pro raia freight ascertained : and until
it shall be done, he to not in readiness to deliver
such part, or to demand the freight due upon it.

Idem, 177

18. Goods so landed will be under his care and
responsibility, without additional expense to the
consignee of them, until they shall be ready for de-
livery.

Idem, 177

14. The word " freight '* is the hire agreed upon
for the carriage of goods from one port or place to
another.

Idem. 177

16. That hire, without a different stipulation by

the parties, to only payable when the merchandise

to in readiness to be delivered to the person having

jSee How. 21, 22, 28, 24.

U. a. Book 16.

HI 7

▼ill

Gensral Indbx.

the rifrht to reoeive it. Then the freight must be
paid before an actual delivery can be called for.

Britton v, Bamob]/, 177

19. The master is bound to deliver the goods in a
reasonable time.

Idem, 177

17. When the ahipment cannot bo landed in a day.
If he lands a part of it, his lien upon the whole gives
him the power to ask from the consignee security
for the payment of the entire freight as called for
by the Dill of lading. But a security or arrange-
ment is ail that he can ask.

Idem. 177

18. He cannot demand that the whole freight of
the shipment should be paid before the consignee
has the opportunity to examine the goods.

Idem. 177

19. When landings of the same shipment are made
on dllTerent days, if the shipper shall not be present
to receive the goods and has not made an arrange-
ment to secure the payment of the freight, thev
may be stored for safe keeping at the consignee's
expense and risk, in the ship owner's name, to pro-
serve his lien for the freight.

Idem. , 177

SO. A stamp or memorandum upon a bill of lad-
ing (that freight is payable prior to delivery) can-
not, of itself, change the well known commercial
rule In respect to the delivery of goods and the pay-
ment of freight.

Idem. 177

21. The conveyance and delivery is a condition

Sreoedent to payment of freight, and must be f ul-
lled.

Idem. 177

22. A memorandum or stamp upon the back of a
bill of hiding is insufficient to explain or to change
it though the ship owner may have made it.

Idem. 177

28. Any practice at San Francisco, however gener-
al it may have become, has not the force of custom
to release its merchants from the obligation of an
ordinary bill of lading.

idem. 177

24. It is the duty of the master of a vessel to ac-
quaint himself with the laws of the country with
which he was trading, and to conform his conduct
to those laws.

Howiand v. Greeniray, 801

26. He cannot defend nimself under asserted

kmoranoe, or erroneous Information on the subject.

Idem. 391

26. It is the habit of every nation to construe and
apply its revenue and navigation laws with ex-
aotness,aod every ship master engaged in a foreign
trade must take notice of them.

Jdefn. 801

27. In this case, the master was Informed of his
duties upon his arrival,and his loss can be attributed
to nothing but his inattention.

Idam. 891

28. Appellants are responsible for the miscarriage
of their master and agent. Their contract Is an ab-
solute one to deliver the cargo safely, the perils of
the sea only excepted.

Idem. 891

20. Under such a contract, nothing will excuse
them for a non-performaoce,except they have been

Prevented by some one of those perils, the act of
belants, or the law of the country.

Id^m. 891

80. No exception of a private nature, not contained
in the contract itself, can bean excuse for its non-
performance. *

Idem. 391

81. It was for the libelees to furnish the evidence
to discharge themselves for the failure to perform
their contract.

Idem. 391

82. The delivery of the cargo into the custom-
house, and the payment of tiie duties by the con-
signees, was not a right delivery, and the consign-
ees are not responsible for their safety afterward.

Idem. 801

88. Where the deliverv contemplated by the con-
tract was a transfer of tne property into the power
and possessions of the consignees, the surrender of
possession by the master must be attended with no
fact to impair the title or effect the peaceful en-
joyment of the property.

Idem. 891

84. Where the charter-party covenants for no spe-
dflo amount to be received, what was **a full cargo"
was a question to be solved by an experienced ship-
master.

Ogden v. Panone^ 4 10

818

86. Three competent witnesses testify that the
ship was loaded as deep as prudence would permit,
and both the District and Circuit Court were of the
same opinion, and this court does not find that tbey
have erred.

Idem. 41 0

86. Where the contract is to cany by sea, from
port to port, an actual or manual tradftioD of the
goods into the possession of the consignee, or at his
warehouse, is not required, to discharge the car-
rier.

Richardmm v. Ooddard^ 41*

87. The carrier by water shall carry from port to
port, ox from wharf to wharf.

Idan. 41t

88. He is not bound to deliver at the warehouse
of the consignee ; it is the duty of the consignee to
receive the goods out of ship or on the wharf.

Idem. 41 »

80. But to constitute a valid delivery on the wharf,

the carrier should give due notice to the consignee*

so as to afford him opportunity to remove the

goods, or put them under proper care and custody.

Idem. 412

40. Such a delivery should not only beat the prop-
er place, which is usually the wharf, but at a proper
time.

Idem. A\%

41. When goods are not accepted by the con-
signee, the carrier should put tnem fn a place of
safety ; and when he has so done, he Is no longer
liable.

Idem. 41S

42. Carrier is not liable on his contract of af-
freightment for the loss bv fire of goodSt where
he aelivered the goods at the plaoe chosen by the
consignee, and where he received a large portion
of them after full and fair notice.

Idem. 41$

43. Where the goods were deposited for the con-
signees in proper condition, at mid-day. In good
weather. This constituted a good delivery.

Idem.' 41»

44. Where the master of a vessel agreed to carry
707 bales of cotton from Mobile to Boston, for cer-
tain freight mentioned in the bills of lading : held,
that the vessel was bound for the safe shipment of
the whole of the 707 bales, from the time of their de-
livery by the shipper at the City of Mobile, and ae-
ceptance by the master.

BuXkley v. Naumkeaa^ Co.i, 599

46. Further held, that the delivery of a hundivd
bales to a lighterman to deliver on board the ves-
sel, was a delivery to the master,and the traosporta-
tion by the lighter to the vessel was the commence-
ment of the voyage, the same as if the hundivd
bales had been placed on board of the vessel at the
city, instead ofthe lighter.

Idem. 599

46. Both parties understood that the cotton wa«
to be delivered to the carrier for shipment at the
wharf in the city, and to be transported tfaeoce to
the port of discharge, and after the delivery and
acceptance at the place of shipment, the shipper
had no longer any control over the property.

Idem. ' 599

47. The ship is liable for the loss on the lighter of
the hundred oales, the same as any other portion
ofthe cargo.

Idem. 599

48. No well founded distinction can be made, as
to the liability of the owner and vessel, between the
case of the deliverv of the goods Into the hands of
the master at the wharf, for transportation on board
of a particular ship, in pursuance of the oootract
of affreightment, and the case of the ladlDir of the
goods upon the deck of the vesseL

Idem. 599

48. Plaintiff was the owner of a line of steam-
ers, employed in the transportation of goods be-
tween Baltimore and Richmond.

Powhatan Steamhoat Co. v. AppomaUox

RaQroad Co., WS

60. Its steamers were accustomed to stop at City
Point, for the purpose of landing goods to be sent
to Petersburg.

Idem. 69t

61. Defendant was a Railroad Oompanr, and wa»
engaged in the transportation of goods over its
raflroad, from City Point to Petersburg.

Idem. 552

62. A contract existed between the parties, where*
by goods and merchandise destined for transporta-
tion to Petersburg were to be received by the

glalntifl^ in Baltimore, carried in its steamers to
ity Point, and there delivered to the defeodaot

B2. n. 84. «6 U. S

GBNSRAIi InUBX.

to be by it transported over its railroad to the place
of destination.

Idem. 9S9

68. One of the steamboats of the plalntifliB left
Baltimore every Saturday afternoon, arrived at
City Point on Sunday, and there such of its carjro
as was destined for Fetersbursr was landed and de>
posited in the warehouse or the defendants, and
remained in the warehouse until the followinflrday.
Idem. 9S9

54. After the goods in question had been so de-
posited, and on the same day the warehouse and all
the goods were destroyed by fire, suit was broujrbt
against the plaintilf by the shipper of the goods,
and payment was recovered against it.

Idem. 682

66. All labor, ** at any trade or calling on a Sab^
bath day, except in household or other work *of
necessity or charity." is prohibited in Virginia by
the 16th section of toe Code.

Idem. 682

56. Plaintiff made the contract with the shippers
in its own name, collected the entire freight
money, and paid over to the defendant such por-
tion of it as belonged to them under the arrange-
ment.

Idem. 682

67. To take care of the goods on the " Sabbath
day,** and safely and securely keep them, after the
goods were received, was a work of necessity and,
therefore, was not unlawf uL

Idem. 682

58. There is no authority in any court to declare
the goods forfeited even admitting that the acts of
landing and depositing the goods, and of opening
and closing the warehouse on Sunday, were within
the prohibition of the statute.

Idem. 682

60. Subsequent custody of the goods was not
within that prohibition: and the law Imposed the
obligation upon the defendant to keepZthe goods
safely until the following morning, and to trans-
port them over the railroad to the place of desti-
nation and deliver them to the consignees.

Idem. . 682

60. A subsequent custody of the goods was not
unlawful; the obligation of the defendant, under
the circumstances of this case, was not varied by
the fact that the goods were deposited in its ware-
house by its consent on ** Sabbath day.**

Idem. 682

CASES AFFIRMED AND REVIEW-
ED.

Sbb Admiraivtt.

1. Zabriskie v. The Cleveland Railroad Co., 23
How., 400, affirmed.

BbiaeUv.CUyofJeffer8onvine, 664

2. The cases of Williamson v. Berry. 8 How., 406,
549; Williamson v. The Irish Presbs^terian Church,
8 How.. 505, and Williamson v. Ball, 8 How., 666,
ezammed.

Suydam v, WiUiamson, 742

8. Bronzie v. Kinzde, 1 How., 811, affirmed ; 2 lb.
612; Sib., 716.

Howard v. Bugbee, 763

4. Former decision in this case (10 How., 263) clear-
ly stated and explained.

Richardson v. Boston, 626

Sec Bili^, Notes ajtd Checks.

COLLECTORS.

1. The 10th section of the Act of the 7th of May,
1822, is not repealed by any subsequent Act.

17. S. V. IValker, U. S. v. HopKins^ U. S.
V. Feam, 382

2. By the Act of 7th May, 1822, $8,000 was the max-
imum which could bo allowed to the office held by
the defendant.

Idem. 382

3. Under the Act, collectors of seven enumerated
ports miKht receive an annual compensation of
|4,000, pi-ovlded their respective offices produced
that amount, after deducting the expenses incident
to the offices, from ail sources of emolument reco^r-
nized by the existinir laws.

Idem. 382

4. On the same principles, and subject to the same
conditions, the collectors of the non-enumerated
ports ml^ht receive an annual compensation of

gooo.

Idem. 882

See How. 21, 22, 23, 24.

6. Repeal by implloation, upon the ipround that
the subsequent provision upon the same subject is
repuJB^nant to the prior hiw, is not favored in any
case.

Idem. 882

6. Where such repeal would operate to reopen
accounts longr since settled and closed, the supposed
repusrnancy ought to be clear and controlling be-
fore It can nave tbat effect.

Idem. 382

7. Wood V. United States, 16 Pet., reaffirmed. All
of these additional compensation Acts are in pari
materia with the several Acts prescribing the
sources of emolument, and must be construed to-
gether.

Idem. 382

8. When they are so considered, there is no re-
pugnancy.

Idem. 882

9. By the Act of March 8, 1841, every collector
must include in his account all sums received for
rent and storage in the public stores, for which
rent is paid beyond the rents paid by him, and if
the Affffregate sums received from that source ex-
ceed 9^000, he is required to pay the excess into the
Treasury as public money.

Idem 882

10. When the sums so received from that source
in any year do not in the aggregate exceed $2,000,
he may retain the whole to IDs own use.

Idem. 882

11. Collectors of the enumerated ports may re-
ceive, $4,000 from the sources of emolument recog-
nized in the Act of 7th of May. \Bg2^ and they may
also receive $2,000 from rents and storage.

Idem. 882

12. But there is nothing in the Act to show that
the prior Act is repealed, so far as It is applicable
to the collectors of the non-enumerated ports.

Idem. 882

13. Collectors of the non-enumerated ports may
receivcasan annual compensation, $3,006, provided
their respective offices yield that amount after de^-
ducting expenses, and in addition thereto, they
are entitled to whatever they may receive for rent
and storage, provided the amount does not exceed
$2,000.

Idem. 882

14. They are required to pay into the Treasury,
the excess beyond that sum, as part and parcel of
the public money.

Idem. 382

COLLISION.

1. Schooner in Chesapeake Bay .was run Into by a
steamer and sunk ; steamer held in fault.

The Louisiana v. Fisher, 29

2. The schooner was not responsible for falling to
carry a light.

Idem. 20

8. Local authorities may prescribe at what wharf
a vessel may lie, and for how long, when she may
load and unload, where she may anchor in the har-
bor, and for what time, and what light she shall dis-'
play at night.

The James Oray v. The John Fra^ser, 106

4. Where the light of a brig differed in character
and place from what the regulations and usages of
the port required ; held, that she committed a fault
which subjected her to damsges for the collision.

Idem. 106

5. Where she was at anchor at a place where ves-
sels were continually passing, it was her duty to
show at night the usual signal light of a vessel at
anchor.

Idem. 108

6. It was the duty of the officers to see that the
light was properly fastened, so as to present the
bright sides to the incoming vessels.

Idem. 108

7. It was the duty of the officer in command of
the steamboat, in a crowded harbor, when his tow
was following him at the rate of six or seven miles
an hour, before he cast loose the tow line, to see
that there was nothing in the way of the tow which
she could not avoid by the means of her own rud-
der, without the aid of the steamboat, and also to
have given reasonable notice of his intention, in
order that she might prepare to take care of her-
self.

Idem. 106

8. The steamer having the tow held answerable,
as well as the brig, for the consequences of this dis-
aster.

Idem. 106

819

General Ikdex.

9. The tow was the re» or thioff which struck the
brig and did the damage. But that does not make
her liable for the Injury, unless the collision was
occasioned by her fault.

The James Oray v. The John Frcuer^ 106

10. The loss divided between the brig and the
steamer.

Id€m. 106

11. Where, In a collision between a steamer and
brig, the brig kept her course until the collision was
Inevitable, an error then committed by those in
charge of tier would not impair her right to recover
for tne collision.

N. Y, & L, SUwmhip Co. v. RunibaU, 144

12. As a general rule, sailing vessels, when ap-
proaching steamerS} are required to keep their
course ; and the steamers are required to keep out
of the way.

Idem. 144

18. Those engaged in navigating vessels upon the

seas, are bound to observe the nautical rules in the

management of their vessels, where there is danger

of collision.

Idem. 144

U. Such rules are obligatory upon vessels ap-
proaching each other so long as the means and op-
portunity to avoid the danger remain.

Idem. 144

15. They do not apply to a vessel after the ap-
proach is so near that the collision is Inevitable.

Idem. 144

16. When a steamer approaches a sailing vessel,
the steamer is required to exercise the necessary
precautions to avoid a collision ; and If this be not
done, prima fcicte the steamer Is chargeable with
ftiult.

Idem. 144

17. Where the brig was run down and lost, and
the evidence fails to satisfy the court that the brig
was in fault, or the disaster inevitable, it neoessan-
Iv follows that the steamer is answerable for the

''nS™. 144

18. Where two steam tugs, two or three miles
apart, looking out for emplojrment, each started
for a brig in different directions, to tender their
services, the steam tug which was following in the
wake of the biig should come up on her starboard
quarter, and slack her engine, so as to not pass the

' SUoTQis V. CUmgh, 186

19. The steam tug, which was coming down in the
opposite direction, ought to round to, either to
windward or leeward, so as to bead the same way as
the brig.

Idem. ^ . 166

ao. The evidence clearly shows that this collision
was occasioned wholly through the fault of the
master and pilot of the latter.

Idem. 166

21. In case of ooUision on Lake Erie, propeller
held in fault, because she did not have a competent
and skillful officer In charge of her deck, and be-
cause his want of qualifications and unskillfulness
contributed to the collision.

Ward V. Chamberlain, 91 1

Chamberlain v. Ward, «19

28. Owners of vessels must see to It that the mas-
ter and other officers intrusted with their control
are skillful and competent, as. In case of disaster,
both the owners and the vessel are responsible for
the consequences of their want of skill, and negli-

Idem. «10

23. The propeller also held in fault because she
did noi have signal lights properly displayed.

Idem. «10

24. Signal lights are required by the Act of Con-
gress and when extinguished, or burning dimly, they
do not constitute a compliance with such Act.

Idem. 610

25. The propeller also held in fault, for the reason
that the officer In charge of her deck neglected to
change the course of the vessel, after ho discovered
the signal lights of the steamer.

Idem. 610

26. Steamboats and propellers navigating the lakes
are required, by the 5th section of the Act of March
8d, 1849, to carnr a good and sufficient light ; and the
owners of sucn vessels neglecting to comply with
the regulation are declared liable for all loss and
damage resulting from such neglect.

Idem. 610

27. But the neglect to show signal lights on the
part of one vessel does not discharge the other, as
they approach, from the obligation to adopt all

B20

reasonable and practical precautions to prereot a
collision.

Idem. 616

28. The steamer also held chargeable with fault,
because the officer in charge or her deck did not
exercise proper vigilance to ascertain the cbaivcter
of the approaching vessel, after he discovered the
white lights, which Subsequently proved to be the
white lights of the propeller.

Idem. 619

29. The steamer also chaigeable with fault, be-
cause the officer in charge of her deck did not
change the course of the vessel, or slow or stop ber
engine, so as to avoid collision, after he discovered
the lights of the approaching vesset

Idem. 610

80. The steamer also held in fault, beoaose she did
not have a vigilant and sufficient lookout.

Idem. 610

81. In a case of mutual fault, the decree of the
Circuit Court apportioning the damages was cor-
rect.

Idem. tlO

82. In the case of collision between flat txwt and
steamer ; held, that the flat kioat should have had
steady and fixed lights, and occupied near the shore
of the river, giving a sufficient passage to the as-
cending steamboat, and kept on a straight line of
the water and not in a diagonal course.

NtHeon t. Leland, 660

83. There was also fault in the steamer. Seeing
the light ahead, the master should have stopped his
boat at once, and backed his boat, until be avoided
the flat boat.

Idem. 660

84. In cases where both boats are In fault, the
damages must be divided between them, and also
the oosts.

Idem. 660

36. The admiralty jurisdiction applies to all navi-
gable waters, except to a commerce exclusively
within a State.

Idem. 660

86. Lookouts stationed in positions where the view
is obstructed, do not constitute a compUanoe with
the requirements of law.

J^. Y. A BaU. TtoM. Co. v. PhIL Ac.
Nav. Co., 367

37. They must be persons of experlcDoe, properly
stationed, and actively and vigilantly employed in
the performance of duty.

Idem. 307

88. Steamers are required to keep out of the way
of sailing vessels, upon the ground that their power
and speed are irreater and those in ctiarge of them
can more readflv command that power and speed so
as to avoid a collision.

Idem. 307

89. Propellers which have nearly the same speed
86 steamers, and as much power, not governed by
same rule as sailing vessels.

Idem. 807

40. If they take other craft in tow, those in tibarge
of them ought to augment their vigilanoe in pro-
portion to the embarrassments they have to en-
counter, especially when they do not aee fit to
slacken their speed.

Idem. 607

41. Steamers approaching each other from opp<K
site directions, are respectively bound to port their
helms and pass each other on the larboard dde.

Mem. 607

42. Where the propeller starboarded her helm, and
attempted to cross the bows of the steamer, that
movement was a direct violation of the nilea of
navigation, and was entirely without excuse.

Idem. 607

48. Collision between steamboat and aohooner.
Haney v. Baltimore Steam PaekeL Com'
pany, 669

44. The schooner kept on her course ; the steamer
did not diverge from her course till within tan seo-
ends of a collision, and then starboarded the heln^
instead of porting it, in contravention of the rules
of navigation.

Idem. 666

45. The steamer had a right to pass on either side,
but it was her duty to keep clear and give a wide
berth to the sailing vessel : having negleoced this
duty till the danger of a collision was immlAent,
sucn a movement only increased the danger.

Idem. 669

46. Steamers navigating In the thofou^fares of
commerce must have constant and viguant look-
outs stationed in proper places on tbo vossol.

Idem.

68, 61, 64, 6S V. S.

GSNBBAL IhDBX.

47. Elevated positioDS, such as the hurrioaoe deok«
are not so faTorable Bituatlona as those on the for-
ward deck, near the stem.

Idem. 562

4B. In case of collision in Chesapeake Bay between
two scboonerst in the evening, the veaaol of the re-
spondents was held in fault, because she had no
lookout ; and the nefflect of that precaution con-
tributed to the disaster, and in all probability was
the sole cause that produced it.

WhUridaev. Dim iS81

49. If the vessel of the respondents was not suffi-
ciently to the windward to have passed the other
vessel in safety, then she was also in fault, because
she did not seasonably ^ve way and pass to the
right.

Idem, 581

50. Where the vessel astern, in an open sea and in
good weather, Is sailingr faster than the one ahead,
and pursuing the same sreneral direction, if both
vessels are close hauled on the wind, the vessel
astern is bound to give way, or to adopt the neces-
sary precautions to avoid a collision.

Idem. 581

51. The vessel ahead, on that state of facts, has
the seaway before her, and is entitled to hold her
position.

Idem. 581

52. Although this collision took place on Sunday,
and a statute of Maryland forbids persons '*to work
on the Lord's Day,'* and the master and mariner of
a ship or steamboat are liable to the penalty of the
Act for commencing their vovago Irom a port in
Maryland on Sunday, defenaant cannot protect
Itself for that reason from paying the damges
sufFered in consequence of the nuisance.

PhUa., <ke.f B. Co, V, Havre de Oraee 8, T,
Gb., 433

58. Courts have no power to add to the penalty
the loss of a ship by the tortious conduct of an-
other.

Idem, 433

64. Where a lighter was capsized by a ship in tow
of, and lashed to a tug, the tug is liable for the
damages.

StwQto V, Bot/er, 590

65. Whenever a tug, under the charge of her own
master, undertakes to transport another vessel
from one point to another, she must be held
responsible for the proper navigation of both ves-
sels.

Idem. 590

66. Third persons sufFering damage through the
fault of those in charge of vessels must, under such
circumstances, look to the tug, her masters or
owners for recompense.

Idem. 590

67. Whenever a culpable fault is committed,
whereby a collision ensues, that fault is imputed
to the owners, and the vessel is liable for the con-
sequences.

Idem. 590

56. No such consequences follow; however, when
the person committing the fault does not stand in
the relation of agent to the owners.

Idem. 590

50. By employing a tug to transport their vessel

from one point to another, the owners of the tow

do not, necessarily, constitute the master and crew

of the tug, their agents in performing the servire.

Idem, 500

60. The master of the tug, notwithstanding the
contract was negotiated with him, continues to be
the agent of the owners of his own vessel, and they
are responsible for his acts in her navigation.

Idem. 590

61. Where it clearly appears that those in charge
of the steam tug had the exclusive control of both
vessels, the tug is responsible for damages caused
by the ship in tow.

idem. 590

6S. Collision between a flat boat and a sf eamboat.
The flat boat was heavily laden in a rapid current,
and the only means of moving it out of the direc-
tion of the steamboat was by working the end oars
across the current.

Pearce v. Page, 0S3

63. When a floating boat follows the course of
the current, a steamer must Judge of its course, so
as to avoid it. This may be done by a proper ex-
ercise of skill, which the steamer is oound to use ;
this is the established rule of navigation.

Idem. 698

64. The steamer held in fault in not avoiding the
flat boat.

Idem, 083

See How. 21, 22, 28, 24.

65. Collision between two steamboats where it is
conceded that the collision was not occasioned by
any fault on the part of those in charge of the in-
jured vessel, but it is Insisted that the colliding
steamer was also without fault, and that the col-
lision was the result of Inevitable accident.

Uniim Steam 8. Co, v, N, T. dt Va, Steam 8.
Co.^ 099

66. Where a collision occurs exclusively frora
natural causes, and without any negligence or fan 1 1
either on the part of the owners of the respective
vessels, or of those intrusted with their control and
management, the rule of law is, that the loss must
rest where it fell, on the principle that no one is
responsible for such an accident. If it was produced
by causes over which human agency could exercise
no control.

Idem, 099

67. But that rule has no application whatever to
a case where negligence or fault is shown to have
been committed on either side.

Idem, 099

68. If the fault was one committed bv the libel-
ant alone, proof of that fact is of itself sufficient
defense ; or if the respondent alone committed the
fault, then the libelant is entitled to recover ; and
if both were in fault, then the damages must be
equally apportioned between them.

Idem, 099

60. It is only when the disaster happens from
natural causes, and without negligence or fault on
either side, that the defense of accident can be ad-
mitted.

Idem, 099

70. Inevitable accident, as applied to cases of this
description, must be understood to mean "a col-
lision which occurs when both parties have endea-
vored, by every means in their power, with duo
care and caution, and a proper display of nautical
skill, to prevent the occurrence of the accident."

Idem, 099

71. It is not inevitable accident where a master
proceeds carelessly on his voyage, and afterwards
circumstances arise, when it is too late for him to
do what Isflt and proper to be done.

Idem, 099

72. He must show that he acted seasonably, and
that he "did everything which an experienced mitr-
iner could do, adopting ordinary caution,*' and that
the collision ensued in spite of such exertions.

Idem. " 099

73. Where it was so dark that the lights of the
approaching steamer could not be seen, it was neg-
ligence in the master, while his steamer was pro-
ceeding at the rate of six miles an hour, to remain
in the saloon, wholly inattentive to the peculiar
dangers Incident to the character of the night.

Idem. 099

74. If it was not un usually dark, then it is clear that
there was gross negligence on the part of those in
charge of the deck.

Idem, 009

76. The great fault committed was that of putting

the helm to starboard, instead keeping the course,

or porting it, when it became known tnat the other

steamer was approaching.

Idem, 099

76. The excuse given for it by the pUot, that he
supposed his own steamer was backing, only adds
to the magnitude of the error, as it shows that the
order was given without knowing what its effect
would be.

Idem. 099

CONSTITUnOlTAL LAW.

1. The New York Statute, which authorizes ihe
summary removal of persons, other than Indians,
who settle or reside upon lands belonging to or oc-
cupied by Indians, is not contrary to the Constitu-
tion of the U. S., nor any Act of Congress.

People V. Dibble^ 149

2. Unless such persons have a right of entry into
these lands, by the Treaty of May 20, 1648, between
the U. S. and the Seneca Indians, they cannot allege
that such summary removal by authority of the
Statute of New York is in conflict with the Treaty.

Idem. 149

3. This Statute and the proceedings under it are
not in conflict with the Tr^ty in question.nor with
any Act of Congress, nor with the Constitution of
the United States.

Idem. 149

4. Where an exemption of the property of a cor-
poration from taxes by an Act of a State Legisla-
ture was spontaneous, and no service nor duty, nor

b:!i

tii

General Index.

other remuneratire condition, was imposed on the
corporatioii. it belongs to the class of laws denom-
iDatedprlvflMKa favorabUia.

Christ Church v. County of PhUa^t 60S

r>. It Is not a necessary Implioation that the conces-
sion is perpetnaU or was designed to continue dur-
ing the corporate existence.

Idem. 60S

6. Such an interpretation is not to be favored, as
the power of taxation is necessarr to the existence
of the State* and must be exerted according to the
varying conditions of the Commonwealth.

Idem, 60«

7. It is the nature of such a privilege as the Act
confers* that it exists bene ploeittim, and may be
revoked at the pleasure of the sovereign.

Idem. 609

8. An Act of the same Legislature partially re-
pealing such exemption is not repugnant to the
C'onstitution of the U. S., as tending to impair a
legislative contract.

Idem. 608

9. Law of California, imposing a stamp tax upon
bills of lading for the transportation from any
place in that State to anv place without the State,
or gold or silver coin, bullion or dust. Is repugnant
to the Constitution of the U. S., which declares that
** no State shall, without the consent of Congress,
lay any imposts or duties on imports or exports, ex-
cept what may be absolutely necessary for execut-
ing Its Inspecnon laws."

Almy V. CaHfomia, 644

10. A law of a State authorizing a judgment
creditor of a mortgagor, at any time within two
years after the sale under a mortgage, to redeem
the land, as to a mortgage executed before the pas-
sage of the law. is inoperative and void, as impair-
ing the obligation of the contract.

Houxurd V. Bugbee, 753

CONTRACT.

See ADMiRAurr, Carrier, Corporation, Plsad-
inob, principaii and aobkt, statute of
Frauds.

1. By the charter of a ship, for transportation of
guano from the Chlncha Islands to the u. S.,f reight
was to be paid at the rate of $2I& per ton, and the
ship was to have the benefit of any advance in the
freights before she finished loading; held, that the

filaintilf s were entitled to an additional compensa-
ion, under this special clause, equal to the excess
paid or contracted to be paid to other parties.

Barreda v. Silebee, 86

2. The declarations and statements of agents of
defendants, made at the time other charters relied
on were executed, were properly admitted as evi-
dence.

Idem. 86

8. The charters, after they were executed, were
forwarded to defendants, and received their signa-
tures; these facts present evidence of authority of
the agents.

Idem. 86

4. Such parol evidence did not conflict with the
written contract.

Idem. 86

5. It was clearly proper to admit proof to show
what those transacilons were.

Idem. 86

6. In an action upon written contract, that the
plain tiflT would complete all the bridge work, agreed
to bo done by the defendant for a Railroad Com-
pany, by the 1st of December next after the date of
the contract ; held, that time was of the essence of
the contract.

Emerwm v. Slater, 860

7. Where time is of the essence of the contract,
there can be no recovery on the contract, without
showing performance within the time limited.

Idem. 860

8. But a subsequent performance and accept-
ance, by the defendant, will authorise a recovery
on a quantum meruit.

Idem. 360

0. Verbal agreements between the parties to a
written contract, made before or at the time of the
execution of the contract, are, in general, inad-
missible to vary its terms or to effect its construc-
tion.

Idem. 860

10. After the contract has been reduced to writ-
ing, the parties, in cases not within the Statute
of Frauds, may, at anytime before the breach of it,
by a new contract, not in writing, either waive,
dissolve or annul the former contract, or add to or

8?2

subtract from, or vary or qualify the terms of it,
and thus make a new contract.

Idem. S60

U. A written contract within the Statute of
Frauds cannot be varied by any subsequent agree-
ment of the parties, unless such new agreement is
also in writing.

Idem. 360

15. Where a spedsl contract, for erection of Iralld-
ings had been departed ftrom, by defendant Insist-
ing that alterations should be made in the buildings
after they were begun, although it may have de-
layed their completion, yet. It having been Hseent^
ed to by the plalntUf , it must be presumed to have
been undertaken by the plaintiir to be done, as to
time, according to the original contract.

Dermott v. Jones, 443

18. A failure, by the plaintiff, to finish on the <tey
agreed, is fatal to a recovery upon the special con-
tract, where it was the Intention of the parties that
performance was to be a condition precedent to
payment.

Idem. 443

14. Whether contracts are dependent or independ-
ent, considered.

Idem. 443

16. When the agreements go to the whole of the
conidderatlon. on both sides, the promiaes are de-
pendent, and one of them is a oonoltion precedent
to the other.

Idem. 443

16. Concurrent promises are those where the acts
to be performed are simultaneous ; and either party
may sue the other for the breach of the contract,
on showing, either that he was able, ready and
willing to do his act, at a proper time and In a
proper way, or that he was prevented by the acCor
default of the other contracting party.

Idem. 443

17. The acceptance of the buildings by the de-
fendant,as they had been constructed by the plaint-
iff, was not any relief of the plaintiff from bla under-
taking to finish them in the time specified In the
contract.

Idem. 443

18. While a special contract remains unperformed
—the party whose part of it has not been done can-
not recover for what he had done, until the whole
shall be completed.

Idem. 44t

19. Where something has been done under the
special contract, but not in strict acoordance with
that contract, the party cannot recover the remu-
neration stipulated for it in the oontract.

Idem. 443

ao. Still, if the other party has derived any benefit
from the labor done, the law Implies a promise on
his part to pay such a remuneration as the benefit
conferred is really worth ; and to recover it, an
action of indebitatus assumpsit is maintainable.

Idem. 44t

21. In the trial of such an action the defendant
may be allowed a recoupment for loss sustained
from the negligence of the plaintiff.

Idem. 443

22. But such recoupment cannot be claimed un-
less the defendant shall file a definite statement of
his claims, with notioe of it to the plaintiir.

Idem. 443

28. Where plaintiff, on sale of land to a railroad,
required and received from defendants their guar-
anty that certain stock of the Railroad Oompany.
received for the land, should be worth par In three
years, or defendant should pay him wlmtever sum
said stock should be worth less than par ; held, that
this was an independent oontract and valid.

HiUv.SmiD^ lis

24. The stock at the time specified, being worth-
less, and the Railroad Company insolvent : held,
that the plaintiff is entitled to Judgment on de^
murrer to his complaint.

Idem. lis

26. An agreement, by defendant, to pay bis at-
torneys one half of all moneys recovered for the
value of slaves freed at Nassau, for their aervlco
in prosecuting such claim ; held, to have referenor
to the solicitation of the claim before the Govern-
ment at Washington.

Pemberton v. Locket. 137

26. And that the transfer of this claim to the com-
mission appointed between Great Britain and the
United States, put an end to the agreement.

Idem. 137

27. In a bill for specific performance of a eon-
tract^ the contract held not void under the 4th asd
6th sections of the Act of Congress of Slat of March.

68, 68, 64, t& r. S.

Gensral Index.

xiii

1830, entitled ** An Act for the relief of purchasers
of public lands, and for the suppression of fniudu-
ient practices at the public sales of the lands of the
United States."

Fkickler v. ¥\trd^ 690

28. The 4th section is intended to protect the
jirovemment, and punish all persons who enter into
combinations or conspiracies to prevent others
from bidding at the sales, either by agreement not
to do so, or by intimidation, threats or violence.

Idem. 600

20. There is nothing to be found on the face of
this contract which can be construed as an agree*
ment not to bid, or to hinder, intimidate or pre-
vent others from doing so.

Idem. 690

ao. The 5th section is intended for the protection
•of those who propose to purchase lands at the pub^
lie sales from the extortions of those who nave
formed the combinations made penal by the 4th
section.

Idem. 600

81. It is no part of the policy of this section to
•encourage frauds by releasing the fraudulent party
from the obligation of his contract.

Idem. 690

CORPORATION.

Sbb Bonds, Equitt, Exbcution, Wzli^.

1. For acts done by the agents of a Corporation,
•either in contractu or in oeUcto, in the course of
their employment, the Corporation is responsible,
4IS an individual is under similar drcumstanoes.

R. R. Co. V. QUiiUVi 73

2. A Corporation.wlthout special authority, may
•dispose of land, goods and chattels, and in its
legitimate business may make a bond, mortgage,
note or draft; and compositions with creditors,
or an assignment for their benefit, except when
restrained by law.

JVhttevoaUr VaUey Can. Co. v. VcMetle^ 154

a In January, 1846, the Legislature of Indiana

passed an Act, that all tae tmnds which might be

issued In accordance with the contract between the

Company and Vallette, were legalized.

Idem. 154

4. When the Learislature relieves a contract from
the fmputation of illegality, neither of the parties
Co the contract can insist on this, objection.

Idem, 154

5. Where separate Indiana Railroad Corporations
wore consolidated by agreement, and the president
•of the consolidated Company gave its notes, in its
name. In iMiyment for a steamboat to run in con-
nection with the railroads : held, that there was no
authority of law to consolidate these Corporations
or to subject the capital of the one to answer for
the liabilities of the other.

Pettrce v. Mad. & I. R. R. Co. and Peru
R. R. Co. 184

6. Also, held, that the managers of these corpora-
tions had no power to establish a steam t>oat line to
run in connection with the railroads.

Idem. 184

7. Persons dealing with the managers of a Corpo-
ration must take notice of the limitations imposcMl
upon their authority by the Act of Incorporation.

Idem. 184

8. In suit on notes, by an indorsee ; held, that the
Corporation had not the capacity to make the con-
tract* In the fulfillment of which they were execu-
ted.

Idem. 184

0. Stockholders cannot repudiate their contracts

on the allegation of fraud, after having a full prior

opportunity to examine for themselves into theaf-

.fairs of the Company, they alleged no fraud, nor

expressed no desire to withdraw their subscriptions.

OaUvie V. Knox Ins. Co., 840

10. Where, after opportunity to know the situa-
tion of the Companv. they organised a branch of
the Corporation, which continued to meet, till a
succession of losses: when the directon concluded
to consider themselves defrauded, and withdraw ;
held, that this discovery was made too late, and
that a court of equity cannot receive such a pre-
tense as a valid defense against the crediton of the
Ck>rporation.

Idem. 840

11. The objection made to the bill of want of
proper parties is untenable.

Idem. 840

12. If a stockholder is bound to pay his debt to
the Corporation, in order to satisfy its creditors,
tie cannot defend himself by pleading that the

fiee How. 21, 22, 2S, 24.

complainants might have got their satisfaction out
of another stockholder quite as well.

Idem. 840

18. If the debts attached are sufficient to pay their
denuuids, the crediton need look no further.

Idem. 840

14. A bill may be filed by stockholder, to restrain
a Bailroad Company from paying the interest on
t>onds of another Railroad Company, which it had
guarantied and to enjoin the Corporation from ap-
plying any of its effects to their redemption, on the
ground that the contract is uUra iHres of the Cor-
poration.

Zabriakie v. GevtHand, Ca. <£ Cin. R. R. Co., 488

15. Holders of the bonds may become defendants,
who assert that they are bona fide holders, and that
their securities are valid obligations of the Com-
pany. Idem. 488

16. The usual and more approved form of such a
suit, is that of one or more stockholders to sue in
behalf of the othera.

idem. 488

17. Where the stockholders, at a meeting, without
a dissenting vote, resolved *'that the indorsement
be approved, as the act of the Company," although
there was dissatisfaction openly expressed by a ma-
jority who declined to vote ; held, that the resolu-
tion complied with the law of Ohio, which pro-
vided that no such aid should be furnished, nor any
arrangement perfected, until, at a meeting of the
stockholders, they shall have assented thereto.

Idem. 488

18. A court of equity will not hear a stockholder
assert that he is not interested in preventing the
law of the Corporation being broken.

Idem. 488

19. Where these negotiable seouriUes had been
placed on sale in the community, accompanied by
the resolution and vote, inviting^ublic confidence,
and had circulated without an effort on the part of
the corporators to restrain them, and men had vest-
ed their money on the assurance they afforded, the
Corporation was held liable.

Idem. 488

20. Corporations are held to a careful adherence
to truth in their dealings with mankind, and can-
not, by their representations or silence. Involve
others in onereous engagements, and then defeat
the calculations and claims which their own con-
duct had superinduced.

Idem. 488

21. The Town of Oakland did not possess the pow-
er, under its charter, to grant an exclusive right of
ferries between that place and the City of San
Francisco.

Minium V. Larue, 574

22. It is a well settled rule of construction of
grants by the Legislature to Corporations, whether
public or private, that only such powers and rights
can be exercised under them as are clearly compre-
hended within the words of the Act, or derived
therefrom by necessary implication, regard being
had to the objects of the grant.

Idem. 574

28. Any ambiguity or doubt arising out of the
terms used by the Legislature must be resolved in
favor of the public.

Idem. 574

24. The court is not at liberty to give a forced in-
terpretation.

Idem. 574

26. If the meaning of the words be doubtful, they
shall be taken most strongly against the grantee
and for the government, and not be extended by
implication beyond the natural and obvious mean-
ing of the words : and if these do not support the
claim, it must fail.

Idem. 574

28. The defendant was made a Corporation by
the charter, the persons named in it oonstitutinjr
the corporate l>ody, clothed with the powers and
privileges conferred upon it, and it was capable of
taking and holding real estate.

Froet V. Prodburg Coal Co., 687

27. If some irregularities occured in the organlza^
tion of the Company, inasmuch as no act made a
condition precedent to the existence of the Corpo-
ration has been omitted, or its non-performance
shown, a party dealing with the Company is not
permitted to set up the irregularity.

Idem. 687

28. The courts are bound to regard it as a Corpo-
ration, so far as third persons are concerned, until
it is dissolved by a judicial proceeding on behalf of
the government that created it.

Idem. 687

88S

ZIT

GsMlcRAL Index.

COURTS.

Remedies at common law and in equity are
confided to the Circuit Courts, to be exercised uni-
formly through the U. S., and do not raceive any
modification from the legislation of the States, or
the practice of their courts.

Oreen v. Creighton^ 410

DAMAGES.

8u Collision, Malzoious Pbosbcution, Ques-
tions OF Law and Faot.

1. Counsel fees are not a proper element of dam-
. aires in actions for the inrnngement of a patent
i^ht.

Tine V. Huntinadon^ 470

8. Where a plain tiiff is allowed to recover only
** actual damages." he is bound to furnish evidence
by which the fury may assess them.

New York v. Ranmrn, 515

S. Actual damages should be actually proved, and
cannot be assumed as a legal inference from facts
'* which afford no data by which they can be calcu-
lated.

Idem, 516

4. The possible advantage or gain made by de-
fendants by the use of plaintiff's improvement on
their machines, is not the measure of bis loss.

Idan. 515

5. If he fails to furnish any evidence of the prop-
er data for a calculation of his damage, the Jury
cannot determine it by inferences or presumptions,
founded on subtile theories.

Idem. 515

6. The amount that would have been received, if
the contract had been kept, is the measure of dam-

Benjamin «. Htilord,

518

DEED.

Seb Bstoppel. Fraud, Lands.

I. Where the objections against a deed were that
tbe deed and the certificate bore upon their face
evidence of fraud, but what those marks of fraud
were is not stated, this court cannot inquire
whether the decision admitting the deed was right.

Thomas V. Lotoson, 89

t. Bv the law of Arkansas, every deed which shall
be acknowledged or proved and certified, as pre-
scribed by that Act and recorded, may be read In
evidence in any court in that State, without fur-
ther proof of execution.

Idenu 811

8. Where, in the certificate of proof of deed, the
subscribing witness does not say that the grantor
acknowledged the same on the day it bears date;
but the deed shows the date, the probate is covered
by the provisions of Tennessee Act of 1846.

Lea V. Polk Co. Copper Co., 803

4. The letters '* ark." crowded after the letter P,
in William Park Lea's name, at the various places
that this alteration is found in the patent, are not
■ufBcient to put the purchasers on inquiry.

Idem. 808

5. When the register put those letters there, the
presumption is tnat he did so in the course of his
official duty, and he who impeaches the act as ille-
gal must prove it to be so.

Idem, 808

0. A deed destroyed and never placed upon rec-
ord, is inoperative as to bona fide purchasers with-
out notice, under the Statutes of Wisconsin.

Parker v. Kaiie, 886

7. Where the description of the property conveyed
is a complete identification of the land, a more

gneral and less definite description cannot control
is; but whatever is inconsistent with it will be
rejected, unless there is something in the deed, or
the situation of the property, to modify this rule.
Idem, 886

8. It cannot be controlled by the declarations of
the parties, or by proof of negotiations or agree-
ments, on which the deed was executed.

Idem, 886

9. By the laws of Tennessee, the fee in land does
not pass unless the conveyance ia proved, or duly
acknowledged and registered.

McEwin V. Den, 678

10. In 1890 a deed for land lying in Tennessee
oould not be acknowledged or proven In another
State t)efore the clerk of a courL

Idem. 678

II. The Tennessee Statute of 1866, which it is
claimed validated this probate, is prospective.

Idem, 678

«84

12. That Act of 1866, was an areendment of the
Act of 1830. and does not carry with it the provis-
ions of the former law.

Idem, 678

18. Where the deed offered in evidence was re-
corded without legal proof of its execution, a copy
of the record cannot be evidence.

Idem. 678

14. The lines of a grant must be governed by a le-
gal rule, which a local custom cannot change.

Idem. 678

DEMURRER.

See PliBADIMOS.

DIVORCE.

See JuRiBDionoN, DomiczIm

1. The question of domicil is one of mixed law
and fact.

Pa. V. Bavenek 38

2. It is for the court to instruct the jury what
constitutes a domicil, and for the jury to apply the
law to the facts, as found by them.

Idem. 88

3. The mere speaking of a place as a home, with-
out any act showing an intention to return to it,
amounts to nothing.

Idem. 38

4. But if the acts and language concur, and are
continued for many years, they are conclusive of
the fact.

Idem. 38

6. Where the wife is plaintiff in a divorce suit,
she is entitled to a sepaxiite domicil.

Barber v. Barber^ 888

6. So, when parties are already living under a Ju-
dicial separation, the domicil of the wife does not
follow that of the husband.

Idem. 888

7. A wife, under a judicial sentence of sepantioa
from bed and board, is entitled to make a domicil
for herself, different from that of her husband.

Idem. 888

8. And she may, by her next friend, sue her hus-
band for alim6ny, which he has l>een decreed to
pay as an incident tn such divorce, or when It has
been given after such a decree by a supplemental
bUl.

Idem. 886-

9. Her right to pursue her remedy in the equity
side of the District Court of the U. 8.« in the State
of Wisconsin, is undoubted.

Idem. 8S8

10. Where the husband, after the decree of aepi-
ration, left his domicil in New York for another in
Wisconsin, in which he acquired a domicil; held,
that his voluntary change of domicil to Wisconsin
makes him suable.

Idem. 888

DUTIES.

1. The 17th section of the Actef August 30, 18tt»
applies in the appnUsal of merchandise imported
by the manufacturer.

Belcher v. LawroMn, 188

3. Tbe reirulations of the Acts of 1823 and isas, as
to goods, procured otherwise than by purchase,
were left untouched by the 16th section or the Act
of 184S.

Idem. 188

8. The 17th section applies to every class of im-
portations—goods purchased, or procured otherwise
than by purchase.

Idem. 188

4. While the Act of 1843 remained in force, it sub-
jected all importations ^to the penalty of ftfty per
centum in case of undervaluation.

Idem. 188

5. The Act of 3d March, 1867, obliterates the dii«-
tinction between goods purchased or procured
otherwise than by purchase, and imposes upon the
latter the twenty per centum upon the appraised
value, for undervaluation.

Idem. 188

6. Duties upon foreign merchandise are to be
computed on their value on the day of sailing ot
vessel from foreign port, and the value from the
computation is the wholesale market price there oq
such day.

Irvine v. Bedjleldf 418

7. Payment of duties cannot be avoided beoanss
the Importation is misdescrlbed, either in the in-
voice or entry or in both, at the same time.

Belcher v. Linn, 754

62, 68, 64, •« U. S>

GBmsRAL Indsx.

8. Appraisers are required to appraise, estimate
and ascertain the true maket value of the importa-
tion.

Idan. 754

0. Where ffreen sugar was subject to duty, but
molasses wss not. If the Importations ou^rht to have
been classed with the former, then the importer
ought to have paid the export duty, and the de-
termination of the appraisers was not an unrea-
sonable one ; that where no export duty had been
paid, it was necessary to add a sum to the invoice
valuation, equal to the export duty to which it
would have been subjected if it had been correctly
invoiced, in order to bring the dutiable value up to
the actual market value or wholesale price in the
foreign market.

Idem. 754

10. It was competent for the appraisers to correct
a misdescription In the Invoice and entry, or disre-
gard it, so as to perform their duty as required by
law. Idem. 754

11. Any dispute as to the nature of the produce
imported, and its consequent classification in the
invoice and entry, was a question of fact within
the jurisdiction of the appraisers, and their decis-
ion is final and conclusive.

[dein. 754

12. Appraisement of the goods is required by law,
r.nd as the detention of the goods is the necessary
consequence of that requirement, it cannot afford
any ground of action.

Idem, 754

18. Duties are required, by law, to be assessed on
the goods, and the assessment is uniformly maae on
the quantity entered at the custom-house, without
any allowance for ordinary leakage and deteriora-
tion.

Idem, 754

14. Molasses barrels, manufactured here and ox-
ported to a foreign port, and there filled with mo-
lasses, and then witn their contents imported to
this country, were not brought k>ack in the same
condition as when exported, within the true Intent
and meaning of the Acts of Congress.

Beicher v. Linn^ 754

Knight v. Schem 760

16. The words, ** the same condition,*' mean not
only that the identity of the article exported is pre-
served, but that its utility for its original purpose
is unchanged.

Idem, 760

16. Barrels filled with molasses and imported here,
formed a part of the charges of importation, and
the value of the same should be added to the whole-
sale price of &*e importation, in order to ascertain
the true iMisis on which to assess the duty.

Idem, 760

17. Casks, indudlngbarrels, as well as hogsheads,
exported from the United States empty, and re-
turned filled, have almost invariably, since the pas-
sage of the Tariff Act of the 20th of July, 1846. been
included among dutiable articles although of Amer-
ican manufacture.

Idem. 700

EJECTMENT.

Sxs Lands.

1. A plaintiff in ejectment, where defendant is in
possession, must show a valid legal title, to author-
ize a recovery.

M<)rehouge v, Phelps^ 140

2. Where no such title is shown, defendant's pos-
session is sufllcient for his protection.

Idem. 140

3. Up to the date of the entry and purchase, the
title was in the U. 8., behind which date courts can
uphold no deed, unless Congress has authorized as-
signments of occupant claims to be made.

Idem. 140

4. The plaintiff in ejectment must, in all cases,
prove a legal tide to the premises in himself, at the
time of the demise laid in the declaration, and evi-
dence of an equitable estate will not be suflBoient for
a recovery.

Fenn v. Holme, 108

6. This legal title the plaintiff must establish,
either upon a connected documentary claim of evi-
dence, or upon proofs of possession of sufficient
duration to warrant the legiU conclusion of the ex-
istence of such written title.

Idem, 108

6. The authorities are decisive against the right

of the plaintiff to recover in ejectment, where the

action was instituted upon an equitable and not

upon a legal title.

Idem. 108

See How. 21, 22, 28, 24.

7. A practice in Missouri, of permitting tbe action
of ejectment to be maintained upon warrants for
land, and other titles not complete^ cannot affect
the jurisdiction of the courts of the 17. 8., which are
required to observe the distinction between legal
and equitable rights, and to enforce the rules and
principles of decision appropriate to each.

Idem. 108

8. By statute of Arkansas, ejectment may be
maintained where plaintiff claims possession by
virtue of an entry made with the Register and Re-
ceiver of the proper Land Office of the United States.

Hooper v. Scheimer, 45l(

9. Bjectment cannot be maintained in the Fed-
eral Courts against a defendant in possession, or an
entry made with a Register and Receiver, notwith-
standing a State Legislature may have provided by
statute that it can.

Idem. 45»

10. The law is only binding on the State Courts,
and has no force in the Circuit Courts of the Union.

Idem, 452

11. Defendants, claiming under a merely equita-
ble title, are not in a condition to dispute in a court
of law the correctness of the survey made by the
public officer, or resist the plaintiff's perfect legal
tiUe.

Oreerv, Mezes^ 661

12. Although the Circuit Court has adopted the
mode of instituting the action of ejectment by (>€»-
titlon and summons, it Is still governed by the prin-
ciples of pleading and pracuce which nave oeen
established by the courts of common law.

Idem. 661

18. In an action of ejectment, a plaintiff will not

be allowed to join in one suit several and distinct

parcels, tenements or tracts of land, in possesAlon

of several defendants, each claiming for nlmaelf.

Idem. 661

14. But he is not bound to bring a separate action
against several trespassers on his single, separate
and distinct tenement ot parcel of land.

Idem, 661

15. Bach defendant has a right to defend spe-
cially for such portion of land asne claims, and it on
the trial he succeeds in establishing his title to it,
and in showing that he was not in possession of any
of the remainder disclaimed, he will be entitled to
a verdict.

Idem, 661

16. He may also demand a separate trial, and that
his case be not complicated or impeded by the issues
made with others, or himself made liable for costs
unconnected with his separate litigation.

17. If he pleads nothing but the general issue,
and is found in possession of any part of the land
demanded, he is considered as taking defense for
the whole.

Idem, 661

18. If a general verdict leaves each one liable for
all the costs, it is a necessary consequence of their
own conduct, and no one has a right to complain.

Idem, 661

10. In Maryland the distinction between common

law and equity, as known to the English law, has

been preserved: and the action of ejectment is

the only mode of trying a title to lands.

Smith V. McCann, 714

20. In tliat action the lessor of plaintiff must show
a legal title : he cannot support the action upon an
equitable title.

Idem, 714

21. Nor is the defendant required to show any title
in himself; and if the plaintiff makes out a prima
fade legal title, the defendant may show an elder
and superior one in a stranger, and thereby defeat
the action.

Idem. 714

22. The purchaser under a /i./a., when compelled
to bring an ejectment to obtain the possession,
must show a legal title to the land ; and, coose-

auently. must show that the debtor, at the time of
le levy, had a legal title.

Idem. 714

28. If the debtor had but an equitable title, the
purchaser is compelled to go into equity, and ob-
tain a legal one before he can support an action of
ejectment against the party in possession.

Idem. 714

24. Where the deed to the debtor only conveyed
to him a naked legal title as a trustee for others, he
took under it no interest that could be seized and
sold upon a fi. fa,; and the deed of the marshal,
therefore, conveyed no title.

Idem, 714

26. Standing only upon this tiUe, derived under

824

XYi

Gbnkral Indbx.

tbiB deed, and showlnff no other title, the plaintiff
oould not recover in an action of ejectment.

SmUh V. MeCann, 714

S6. In the courts of the United 8tateB,suit8 for the
recovery of land can only be maintained upon a
lesral title, not upon an incipient equity.

Sheirbum v, De Cordova, 741

ISQUITT.

SEB BjSCTnCSHT, JURISDICTIOV. LANDS, MOBT-
QAQB, TRUSTBS, VENDOB AND VBNDBE.

I. Writsof /t./a.« were levied on the Covington
Bridge, and the marshal sold the rents and profits
of the same for one year, but the keeper refused to
surrender possession; those interested filed their
bill, praying a receiver to take possession, and re-
ceive the tolls and income, and apply them to dis-
charge the Judgments.

Cov^wUm Drawhridoe Company v. Shep-

E. Held, that the court below had power to cause
possession to be taken of the bridge ; to appoint a
receiver to collect tolls, and pay them into court,
to discbarge such judgments.

Idem. 88

8. A court of equity treats an agreement for a
mortgage or pledge as' binding, and will give it ef-
fect according to the Intention of the parties.

WhiUwater VaOty Co. v.' VattUU. 154

4. The Ck>n8titution of the U. 8. establishes the
distinction between law and equity, and a party
who claims a legal title must proceed at law, and
may proceed according to the practice in the state
court.

Fenn v. Holmes 108

5. But if the claim be an equitable one, he must
proceed according to the rules of which this court
has prescribed, regulating proceedings in equity in
the courts of the u. 8.

Idem. m 188

6. Where, In a bill of re^ew pravlng relief from
a decree, toe excuse set up by the complainant
for not appearing and defending the former suit, to
wit : the fraud and imposition oi the def endant,wa8
fuUv denied iii the answer, and wholly unsupported
by the proofs : held, that the allegations upon which
relief in the bill rested, and upon which alone a re-
hearing could be gran ted, were unsustained.

MeMicken'sEx'n v. Perin^ 850

7. In the Court of Chancery, executors and ad-
ministrators are considered as trustees, and that
court exercises original jurisdiction over them, in
favor of the creditors, legatees, and heirs in refer-
ence to the proper execution of their trust.

Qreen'B Adm'x v. Creiohton, 410

8. A single creditor may sue for his demand in
equity, and obtain a decree for payment out of the
personal estate without taking a general account
of the testator's debts.

Idem. 410

9. The jurisdiction of a court of equity, to en-
force an administration bond, arises from its juris-
diction over administrators, to prevent multiplicity
of suits, and Its power to adapt its decree to the
substantial justice of the case.

Idem. 410

10. Chancery will not interfere to prevent an in-
solvent debtor from alienating bis property, to
avoid an existing or prospective debt, even when
there is a suit pending to establish it.

AdUr V. renton, 606

II. The rights of the debtor and those of a creditor
are defined by positive rules, and cannot be con-
travened or varied by any interposition of equity.

Idem. 606

12. A general creditor cannot bring an action

against his debtur. or against those combining and

colluding with him, to make dispositions of his

groperty, although the object of those dispositions
e to hinder, delay and defraud creditors.

Idem. 606

18. The Court of Chancery does not give any
specific lien to a creditor at large, against his debtor,
further than he has acquired at law.

Dayv. Wathtmm^ 718

14. It is only when he has obtained a judgment
and execution, in seeking to subject the property
of bis debtor in the bands of third persons, or to
reach property not accessible to an execution, that
a legal preference is acquired, which a Court of
Chancery will enforce.

Idem. 718

15. Where creditors have not reduced their de-
mands to judgment and execution, before seeking

826

relief against a fmdulent assignment of the debtor,
they cannot set up any claim to a preference over
the other creditors, or object to an equitable dislzi-
bution of the assets among all the creditors.

Idem. 718

16. Where a specific fund has been assigned or
pleged for the benefit of creditors, chancery, upon
its own principles, distributes the fund pro rata
among all the creditors, unless preference is given
In the plege or assignment of the fund.

Idem. 7it

17. If a bill is filed to enforce a trust, no Judgment
or execution is necessary as prelimlnarr steps to
the interposition of the court, but, in that case, the
complainants are not entitled to a preference,
where none is given to them in the trust deed.

Idem. 718

18. Where the bill is filed to set aside a deed as
fradulent, to defeat the preferences given therein
to other creditors, the objection that the demands
of complainants had not been reduced to Judgment
and execution before filing the bill, is fatal to the
relief sought. If taken in time.

Idem. 718

10. Where such objection was waived, the conn
was right in proceeding to make a ratable distribo-
tion among all the creditors.

Idem. 718

20. It is not allowable to appeal from the Judg-
ment of the Circuit Court and Supreme Court to a
court of chancery upon the relative merit of the
legal titles involved in the controversy they had
adjudicated.

BaUancev.Fin-9ythy 788

ERROR.

Sex Appeal and Brrob.

ERROR, PRACTICE IN.

8ee Appeal and Brbob, Practicb ur.

ESTOPPEI*.

See Agent, Lands.

Where the grantor sets forth on the fiaoe of hlB
conveyance, by avemment or recital, that be is
seised of a particular estate In the premises, and
which estate the deed purports to convey, he and
all persons in privity with him shall be estopped
from afterwards denying that he was seised and
possessed at the time lie made the con veyanoe.
Freneti'e Lenee v. Spencer, 07

EVIDENCE.

See Agent, Adhiiiax^t, Biij:^ and Notes, Ooujb-
ION, Contract, Bomxgil, Fobmeb Adjitdica-
TION, Lands, Maucioits Prosecution, Princi-
pal AND Agent, Usage.

(1) Generally.

(8) Parol, to contradict, vary, or rzpladi
writino.

(1) Generally.

1. The refusal of the court to reject a deposltkHU
because the witness had not annexed to It a oopy of
a former deposition, which he had used to refresh
his memory, is right.

Winam v. New York A JBrCe R. R. Co^ 68
8. Such an objection cannot be made on the trial,
when the partv had time before the trial to more
for a suppressfon of the deposition or a re-examin-
ation.

Idem. 68

8. Experts may be examined to explain terms of
art and the state of the art, and machines, models,
or drawings exhibited.

Idem. 68

4. But professors or mechanics cannot be tecHvcd
to prove the proper or legal oonstruotion of any in-
strument of writing.

idem. 68

6. A judge may obtain Information from them,
but cannot t>e compelled to receive their oplnloos
as matter of evidence.

Idem. 68

6. Where the court has given a correct oonstnic>
tion to the patent, there was no error In refusing to
give a different one, or In refusing to admit testi-
mony which was irrelevant under such oonstroc^
tion.

Idem. 68

7. The record in another suit, where the parties
were different and the petition and answer are

62, 68, 64, 66 U. 9.

General Ikdbz

ZTii

Blgned by oounsei, and not by tbe iwrtles, cannot
be resorted Co for admissions of the parties.

OombB V, Hodge, 115

6. Where there Is no OTldenoe of the existence of
a power of attorney, except a letter of the aarent,
that statement is insufficient to establish the fact,
the letter havlnfr been written after the agent had
violated his obligation as asrent.

Idem. 115

9. Bxemplifloation of a record, admissible as evi-
dence.

United States v. Sutter, 1 19

The non-production of the original, does not fur-
nish cause for suspicion.

Idem, 119

10. In cases of fraud, other wrongful acts of the
defendant are admissible in evidence to show the
intent.

Coftle V, BuUard. 494

U. Positive proof of fraudulent acts is not gener-
ally to be expected, and for that reason the law
allows a resort to droumstanoas.

Idem, 494

12. Whenever the neoessltv arises for a resort to
circumstantial evidence, objections on the ground
of irrelevancy are not favored.

Idem. 494

13. Circumstances altogether Inconclusive, if sep-
arately considered, may, by their number and joint
operation, be sufficient to constitute conclusive
proof. idem, 494

14. Where an installment was to be paid on an ap-
pointed day, if the work should then be finished,
and the plaintiflT avers that he had complied with
the contract, and he gave no proof to sustain the
averment ; held, the evidence entitled the defend-
ant to a verdict on that count.

Dermott v. Joties, 449

15. Introduction t>f the notice to the defendant of
the defects in the work to be constructed, was
proper.

Berdamin v. HUlard, 518

16. Assignments of error, because the court ad-
mitted evidence directly pertinent to the issues
which had been made by the pleadings, are not
grounds of reversal.

Very v. Watkins, 598

17. A paper In the handwriting of the deceased
co-surety of the defendant, was 1 nadmlsslble to show
that the testimony of the other witnesses was not
consistent with an appraisement which they had
made, pursuant to an order of the court.

Idem, 599

18. Lecraw v. Boston, 17th Howard, 4SS, affirmed.
Richardaon v. Boston, 695

19. Bills of indictment which constituted part of
the history of the case, and were referred to In the
testimony of the plaintiff, are admissible as testi-
mony.

Idem, 095

20. Former verdict and Judgment, though admit-
ted in evidence, should have little or no weight on
the decision of the case, when it was founded on
erroneous Instructions on the law.

Idem. 695

21. In a petition for freedom by a slave, under a
will, by which all testator's slaves over thirty-five
years of age were emancipated ; and all those under
that age were to be emancipated, the males at thir-
ty-five and the females at thirty years of age, records
of verdicts and Judgments establishing that peti-
tioner's mother and sister were the slaves of testa-
tor at his death, and acquired their freedom under
his will, are proper evidence.

Vioel V, Naylor, 646

82. A presumption could have been founded on
this proof by the Jury, that the infant child of the
same family was the slave of testator also.

Idem. 646

23. The records of the Judgment were not inter
aiins ocf a, and, therefore, incompetent.

Idem, 646

84. The evidence offered had weight enough in it
to be pertinent, and ought, therefore, to have been
submitted to the jury.

Idem, 646

25. Where the cestuis cue (rust are not before the
court, an inquiry Into the validity of the trusts
cannot be made.

Idem. 646

26. A certified copy of survey in the office of the
Surveyor-General, given by that officer, who Is re-
quired to keep it, is admissible In evidence.

Meehan v, FormO^ 780

27. The American State Papers, published by or-
der of the Senate, contain authentic papers wnioh

See How. 21, 23, 28, 24.

are admissible as testimony, without further proof.
Qreggv, Forn/th. 781

28. A copy of a deed from the public records, the
original of which was not in the possession of the
plaintiff. Is evidence.

Idem. 781

29. A record of a suit of partition, under which
the plaintiff derived his title as a purchaser, should
not DC excluded because the sale had not been con-
ducted with regularity, and the decree of sale had
been rendered against infants, by default, and be-
cause it did not prescribe the manner of the sale.

Idem. 781

80. Strangers to these proceedings cannot object
to a result, of which the parties to the decree have
not complained.

Idem. 781

31. To entitle a party to give parol evidence of a
will having been destroyed, where there is not con-
clusive evidence of its absolute destruction, he most
show that he has made diligent search and inquiiy
after the will, in those places where it would most
probably be found, if In existence.

Oaines v, Hennen, 770

82. Criminal proceedings instituted for bigamy,

by the CanoniciU Presby^r of the Holy Cathedral

Church of New Orleans, is inadmissible, as such,

and all which It contains must be disregarded.

Idem, 770

(2) Parol, to Contradict, Vart, or Explain

Writino.

33. Parol testimony is always admissible. In mat-
ters of contract, to snow fraud.

Barreda v, SUsbee, 86

34. Those who seek to set aside their written con-
tracts* by proving loose conversations, should be
held to make out a clear case.

OffUvie V, Knox Ins. Co,, 840

35. when they charge others with fraud, founded
on such evidence, their own conduct and aotsshould
be consistent with suoh an hypothesis.

Idem, 849

36. The testimony of admissions or loose conver-
sations should be cautiously received. If received
at all, to prove alienage of grantee of Mexican title.

DaUonv, U,8„ 805

37. Such testimony ought not to be received to
outweigh the presumptions arising from the espe-
diente and definitive title.

Idem, 805

88. A oonversation between witness and a co-se-
curity of defendant, defendant not being present
at the conversation, is Inadmissible to fix upon de-
fendant as co-surety a separate liability for an all
leged breach of the bond by their principal, for
which they had made themselves mutually respon-
sible.

Very v. WaUUne, 599

39. Conversations and verbal understanding be-
tween the parties at the time of the contract, are
merged in the contract, and parol evidence Is
inadmissible to engraft them upon It.

OelHek v. Ford, 584

40. Parol evidence is Inadmissible to enlarge the
estate of a trustee, and to show that he had not
merely a barren legal title, but a beneficial interest,
which was liable for the payment of his debts.

Smith V, McCann, 714

EXCEPTIONS.

Where the district Judge refused to slsrn and
seal a bill of exceptions six months after trial, but
signed a bill of exceptions taken to his decision
refusing to sign one ; this is a novelty in practice
which requires no notice.

Martin v, Ihmaen, 184

EXECUTION.

1. If the officer charged with the duty to make a
levy, has a view of toe goods and they are In his
power, and he deelares that he makes a levy or
seizure of them in execution, it is a valid levy.

Very v. Watkine, 599

2. It cannot be implied that a levy by a marshal
was incomplete, because he left the property where
It was when the levy was made.

Idem, 599

3. After a levy had been made with a A. /a. upon
goods and chattels, the oflloer may confide them to
anoUier person for safe keeping.

Idem. 599

4. An execution is leviable upon the property In
the possession of a trustee of defendant, where It
was allowed by him voluntarily to remain.

Idem.

827

zviU

Qbnisrai. Ikdsx.

6. A franohtoe, beliur an Inoorporeal heredita-
ment, cannot, upon the settled principles of the
common law, he seised under aJUHfaeias.

Que V. Tide Water Canal Co.^ 685

6. It would be against the principles of equity to
allow a sinirle creditor to destroy the value or the
property of the stoolcholders. by dissevering from
the franchise, property which was essential to its
useful existence.

Idem. 035

7. If the appellant has a right to enforce the sale
of the whole property, including the franchise, his
remedy is in a court of chancery, where the rights
andiprioritles of all the creditors may be considered
and protected, and the property of the Corpora-
tion disposed of to the best advantage, for the
benefit of all conoerned.

Idem, 685

8. A court of common law, from the nature of its
jurisdiction and modes of proceeding, is incapable
of accomplishing this object.

Idem. 635

9. The Circuit Court was right in granting an
injunction against the sale.

Idem. 635

10. It is not every legal Interest that is made
liable to f«]eon an. 'a.; the debtor must have a
beneficial interest in the property.

Smith V. McCann, 714

11. if the evidence was admissible, the fraudu-
lent character of the trusts, as against his cred-
itors, could not enlarge his legal interest beyond
the terms of the deed.

Idem. 714

12. Bvldence, to prove that the trusts in the deed
are fraudulent, and that the deed^was executed to
hinder and defraud creditors, la not admlwlble
for the purpose of showing that the grantse had a
beneficial Interest In the property, liable to be
seised and sold for payment of his debts.

Idem. 714

EXTRADITION.

1. The words (in the U. S. Constitution as to de-
livery, by one State, of fugitives from another)
**treason, felony or other crime,*' embrace every
act forbidden and made punishable by a law of the
State.

Com. Ky. v. Dennimn^ Ac.. 71 7

2. The said word **crime** of itself Includes every
offense from the highest to the lowest **misde-
meanors,** as well as treason and felony.

Idem. 717

8. History, and reason for this Article in the Con-
stitution stated.

Idem. 717

4. It gives the right to the executive authority
of the State to demand the fugitive from the Bxeo-
utive authority of the State in which he is found.

Idem. 717

5. There Is a co-relative obligation to deliver,
without any reference to the character of the crime
oharffed, or to the policy or laws of the State to
which the fugitive has fled.

Idem. 717

8. The executive authority of the State Is not

authorized, by this article, to make the demand,

unless the party is charged in the regular course of

judicial proceedings.

Idem. 717

7. The Executive authority of the State, upon
which the demand is made, should be satisfledjjby
competent proof, that the party is so charged. The
proceeding, when duly authenticated, is his au-
thority for arresting the offender.

Idem. 717

8. The duty of providing, by law, the regulations
necessary to carry this compact into execution is
upon Congress.

Idem. 717

9. The Act of ITOSL February 12th, as far as relates
to this subject, recited.

Idem. 717

10. The Judicial acts necessary to authorize the
demand are specified in the Act, and the certificate
of the executive authority Is'iooncluslve as to their
verity when presented to the Executive of the
State where the fuiritive is found.

Idem. 717

11. He has no right to look behind them, or to
question them, or to look into the character of the
crime specified in the judicial proceeding; the duty
which be is to perform is merely ministerial.

Idem. 717

12. That he must inquire and decide who is the
person demanded, is not a discretionary duty upon

828

which he is to ezerdae any judgment, tnit Is aners
ministerial duty.

Idem^ 717

18. Whether the charge is Icwally and snlBciently
laid in the indictment Is a judicial question to bede-
cided by the courts of the State In which the crime
was committed, and not by executive authority of
the State upon which the demand Is made.

Idem. 717

14. If the Governor refuses to discfaargo his duty,
there Is no power delegated to the General Govern-
ment, either through the Judicial Department or
any other department, to use any coercive means
to compel him.

idem. 770

EXKCUTORS AND ADMINI8TaATOB8.

2. By the decisions of Louisiana, an extrajudicial
statement by an executor, that he believes the
debt to be due by the estate, does not bind the heir,
nor is the heir bound by the approval of a ooort as
to such a claim, if it be made ex parte.

Gaines v. Hennen, 770

FORMER AD JUDICATIOir,

Sm State Laws and Dbcisioks.

1. In Louisiana a judgment, confirming and
homologating a judicial, sale is res /udfooto, ao asto
operate '* as a complete bar against all peiaona, who
may thereafter claim the property in consequence
of all illegality or informality in the proceedings,
whether before or after judgment.'*

Jeter v.HeioiO, S4S

2. And the judgment of homologation la to be
received and considered "as full and conclusive

{>roor' that the sale was duly made according to lav.
n virtue of a judgment or order icwally and refns-
larly pronounced on the interest of the parties duly
represented.

idem. S4S

8. Where a court has jurisdiction, it has a right to
decide every question which occurs in the cansc ;
and whether its decision be correct or otherwite.
its judgment) until reversed, as a general rule. Is
regarded as binding in every other court.

NaAUm» v. Johnsmu, 61S

4. Whenever the parties to a suit, and the subject-
matter in controveraey, are within the jurladletion
of a court of equitv, the decree of that court is as
binding as would be the judgment of a court of
law.

Idem. <SS

6. The judgment of a court of law, or« decree of
a court of equity, directly upon the same point, and
between the same parties, is good ssa plea in bar,
and conclusive when given In evidence in a subse-
quent suiu

Thorn pson v. RoberUt^ MS

8. An objection that the parties were not the
same, cannot be sustained, where both the parties
were parties In the former- suit; and the subjevt-
matter was the same, and the defense here set up
was the same which the pleadings and thesvideDiV
show to have been adjudicated In the former suit.

Idem. 640

7. A Question as between the parties Is res frndi-
coto, where the first issue was in chancery, and al-
though other parties collaterally interested were
made parties, that it might be final, and not becaose
thev were legal parties to the original oontraot on
which the litigation is founded.

Idem. 640

8. In order that a judgment or decree may be set
up as a bar by plea, or relied on as evidence by way
of estoppel, it must have l>een made by a court of
competent jurisdiction upon the same subject-mat-
ter between the same parties for the same purpose.

WashingUm^ Alexandria A Oeorgelown,
S. P. Co. V. Sickles, 650

It is not necessary as between parties and privies
that the record should show th^ questloo upon
which the right of the plalntifF to recover, or the
validity of the defense depended, butonlv that the
same matter in controversy might have been liti-
gated.

Idem. MO

9. Extrinsic evidence will be admitted to prove
that the particular question was material^ and. Is
fact, contested, and that It was referred to the de-
cision of the jury.

Idem. 600

10. The judgment rendered while It remains In
force. Is conclusive of all the facts properly pleaded
by the plaintiffs.

Idem.

62, 88. 84, 8o V. &

Gknbbal Iin>Bx.

six

U. But when It is presented as tesUmoiiT In an-
other suit, tbe Inquiry is competent, whether the
same issue has been tried and settled by it.

Idem, 650

12. Where a number of issues are presented, the
Hudinflr on any one of which will warrant the ver-
dict and judjErement, it is competent to show that
the findinjr was upon one rather than on;another of
these different issues.

Idem. 650

18. The subsequent application, of the verdict to
a sinffle count by the court, does not preclude this
inquiry.

Idem. 650

14. The history of the iiti|ration among the claim-
ants to the money, awarded to the Baltimore Com-
pany by the commissioners, under the Convention
with Mexico (amounting to the sum of $864,480.42),
of which the fund in controversy is a part, will be
found in 11th How., 629; 12 15., Ill; 14 i<>., 610 ; 17
i2>.,2»4,and20/b.,686.

Mauer v. WhiU^ 05 7

15. In the case of Gooding v. Oliver, 58 U. R.,
the court held that the administrator was entitled
to the fund as assets of the estate, upon the srround
that the courts of Maryland had decided that the
contract of the Baltimore Company, which had
been made in violation of our Neutrality Laws, was
so illegal and void that no claim to it passed to the
trustees, under its Insolvent Laws.

Idem. 057

16. As between the trustee in subsequent Insolv-
ont proceeding in 1881, under an assignment for
the benefit of creditors and the present personal
representative of the estate of 6oodiDg,such trust-
ee took the interest of the insolvent in the Balti-
more Company in 1829' by virtue of such proceed-
ings.

idsm. 057

17. The demand in 18X9 constituted a right of
property or interest in Gooding, the insolvent, that
passed to plaintilf as trustee, by virtue of the as-
signment under the insolvent proceedings.

Idrnn. 057

18. Hie plaintiff Is not concluded by the decision
of this court, in the case of the former Adminis-
trator of Ooodiug V. The Executors of Oliver, re-
ported in the 58 U. 8., 274.

idem. 057

19. This suit was not ret adjudieata by this court
in its Judgment in the case of Gaines v. Belf and
Chew, in U Howard, 606.

QaUue V. Hennen, 770

20. This court having decldedi In 6 Howard, that
there had been a lawful marriage between the com-
plainant's father and mother, and that Mrs. Oaines
was the lawful and only issue of the marriage, the
decision made In the case of 12 Howard was not In-
tended to reverse the decree in tt Howard, and it
cannot be so anplled as re» tuljudUMta to this case.

Idem. 770

21. In the first suit her demand was for one half,
and four fifths of another half of the property
owned by her father when he died, which she then
claimed as the donee of her mother to the one half
and, as forced heir of her father, to four fifths of
another half of his estate, and now she claims in
this suit as universal legatee and legitimate child
of her father under his will of 18th July, 1818, which
had been admitted to probate by the Supreme Court
of Louisiana; the law of Louisiana will not permit
the decision of the first to be pleaded against her
in this case as a res judicata.

Idem. 770

22. The case in 12 How. and that now under our
consideration are dissimilar, as to parties and things
sued for, or what is called ^*the object of the judg-
ment"; and the demand now made is not between
the same piurties or formed against each in the
same quality.

Idem. 770

FRAUD.

8n CONTRAOTi EVIDSNGB.

1. Where the appellee's proposal had been ex-
amined and adopted by appellant's Board and Its
conditions performed in good faith ; held, that
there was no fraud or circumvention.

WMUuxUer VaUey Co. v. ValUlU, 154

2. These facts are a kMurto any relief from this
contract on the ground of oppression.

Idem. 154

8. Where the arrangement in respect to the in-

adtution of the suit, which is complained of as

Bee How. 21. 22, 28, 24.

fraudulent, has been given up and a new one sub-
stituted, which was unexceptionable, equitable
and Just, the charge of fraud and imposition falls
with it.

CoUine V. Thompson. 980

4. Where one of two innocent parties must suffer,
through the fraud or negligence of a third party,
the loss shall fall on him who gave the credit.

BanH of PUUburgh v. Neal, SS8

5. Upon a creditor's bill to set aside a deed, the
court below decreed that the deed was fraudulent
as against creditors, because the price was consid-
erably below its true value and because the evi-
dence, in respect to payment of the consideration
stated in the deed, was unsatisfactory.

CaUan v. Statham, 588

6. Proof of payment of the consideration was vi-
tal to uphold the deed, where the evidence was in
defendant's possession and the transaction was se-
cret.

Idem. 154

7. The want of such proof is nearly. If not quite,
ffttal, to the valicdty of the deed as against cred-
itors.

Idem. 154

8. Other facts also tended to Justify the decree,
to wit: the continuance of the vender in the pos-
session of the premises, the same after the deed as
before his heavy indebtedness, and suits pending
and maturing to Judgment against him, all of
which were well known to the vendee.

Idem. 154

GRANTS, CONSTRUCTION OF.

8U CORPOBATIOir.

HABEAS CORPUS.

1. State Court, or Judge, authorized by the laws of
the State to issue habeas corptw, may issue it in any
case where the party is imprisoned within Its ter-
ritorial limits, provided It does not appear, when
the application is made, that the pernon imprisoned
is in custody under the authority of the D. 8.

Ahleman v. Br)o(7i, 100

2. The court or Judge has a right to inquire, in
this proceeding, for what cause and by w hat author-
ity the prisoner is confined.

Idem. 100

8. And it Is the duty of the marshal, or other per-
son having the custody of the prisoner, to make
known to the Judge or court* by a proper return,
the authority by which he holds him in custody.
Idem. lOO

4. But It is his duty to obey the process of the U.
S. to hold the prisoner In custody under it, and to
refuse obedience to the mandate or process of any
other government.

Idem. 100

6. And consequently, it is his duty not to take the

J prisoner, nor suffer him to be taken, before a state
udge or court upon habeas eorjnu Issued under
state authority.

Idem. 100

6. No state Judge or court, after being Judi-
cially Informed that the party Is imprisoned under
the authority of the U. S.. has an v right to interfere
with him, or to require him to oe brought before
them.

Idem. 100

7. And If the authority of a State should attempt
to control the marshal In the custody of the pris-
oner. It would be his duty to resist It, and to call to
his aid any force that might be necessary to main-
tain the authority of law against Illegal interfer-
ence.

Idem. 100

8. No Judicial process can have any lawful author-
ity outside of the limits of the Jurisdiction of the
court or Judge bv whom It is Issued ; and an at-
tempt fo enforce it beyond those boundaries Is law-
less violence.

Idfim. 100

9. If there was any defect of power In the Com-
missioner of the U. 8.. or In bis mode of proceed-
ing, It was for the tribunals of the U. 8. to revise
and correct it, and not for a state court.

Idem. 100

10. Where the District Court had exclusive and
final Jurisdiction, neither the regularity of Its pro-
ceedings, nor the validity of its sentence can be
called in question in any other court, either of a
State or the U. S. by habeas corpus or other proc-

idetn.

100

88»

Gbnbral Inpbz.

HOLIDAY.

1. Carrier has a rl^ht to disoharflre cargo on a vol-
untary holiday such as a day appointed by the Gov-
ernor for fastinfl: and prayer, and to demand the
acceptance by the oonsisiiee on that day.

Riehardmn v. Ctoddard, 412

2. There is no law of Massachusetts which forbids
the transaction of business on that day.

Idem, 41S

8. There Is no general custom or usage which for-
bids the unlading of vessels and a tender of freiirht
on the day set apart for a church festival, fast, or
holiday.

Idem. 418

4. There is no special custom In the port of Bos-
ton which prohibits the carrier from unlading his
vessel on such a day, and compels him to observe
It as a holiday.

Idem. 412

INDIANS.

Sbs Constitution, Tbsatt.

INJUNCTION.

I Su Bxbodtion.

INSURANCE.

1. In a mutual insurance company, a person in-
sured up«n a cash premium, without any further
liability, Is a member.

union Ins, Company v, Hoge^ 61

2. In a mutual insurance company, the premiums
paid by each member constitute a common fund,
and the cash premium as well represents the In-
sured in each fund as the premium note.

Idem. 01

8. In the absence of any prescribed mode of pay-
ment of premiums, the power to prescribe it by
the Company is implied.

Idem, 01

4. The construction of the N. Y. Insurance Act of
1848, by the public officers of the State, that a char-
ter is in accordance with it, should be regarded as
decisive in cose of doubt.

Idem, 01

5. In suit on policy of insurance on the freight of
a vessel, on a voyage from Charleston to Hio Jan-
eiro, and from tnence to a port of discharge in the
IT. 8.; held, that the loss of the freight on the re-
turn voyage was a total loss, and the plaintiff was
entitled to the whole amount underwritten.

Ine, Co. V, MordeeaU 329

6. The insurance was upon the freight of each
successive voyage, and is to be applied to the freight
at risk at anytime, whether on the outward or
homeward voyage, to the amount of the valuation.

Idem. 829

7. Where a number of special partners are incor-
porated to carry on the business of Insurance, the
Steele subscribed and owned by the several part-
ners constitutes the capital publicly pledged to all
who deal with it.

OaUviev, Knox Ins. Co,^ 349

8. Where an insurance company did not require
its stockholders to pay in cash more than ten
per cent, of its several shares, the ninety per
cent, retained by the stockholders Is as much a part
of the capital pledged as the cash actually paid in.

Idem. 349

9. When that portion of the capital represented
bv these securities is required to pay the creditors
of the Company, the stockholders cannot refuse
the payment of them, unless they show such an
equity as would entitle them to a preference over
the creditors, if the capital had been paid in cash.

Idem. 849

10. An open or running policy, is one to insure
goods shipped at a distant port when it is impossible
to be advised of the particular ship upon wnich the
goods are laden, ana it cannot be named in the
policy.

Orient, Mut, Ins, Co. v. Wrights 529

Sun Mut, Iru. Co, v. Wright, 629

11. The party Insured can insure the cargo *' on
board ship or ships," on condition of declaring the
ship upon the policy and giving notice to the un-
derwriter as soon as known, and, if possible, before
the loss of the ship on board of which the goods
have been laden.

Idem. 624

12. The underwriter agrees that the policy shall
attach, if the vessel be seaworthy, however low
may be her relative capacity to perform the voyage.

Idem, 624

«80

13. The ship must be seaworthy, or the policy will
not attach ; but the degrees of seswoxtnineas are
various ; and the rates of premiums are varied bv
the underwriters according to the character and
qualiUes of the vessels to which they relate.

Idem, 624

14. The principles of law and rules of construc-
tion governing policies of this description, stated.

Idem, 624

16. Where the parties agree, that in respect to
vessels rating lower than A 2, the premiums on the
risks shall be fixed at the time they are declared or
reported ; and when thus fixed, and the premiums
paid or secured, the policy attaches upon the goods
from the time they are laden on board the vessel.
Idem, 624

16. The mere declaration of the ship on board of
which the goods are laden, is not sufficient to com-
plete the contract ; the insured must pav or secure
the additional premium, at the time or the dedaia-
tion of the risk.

Idem, 624

17. Where the vessel declared or reported by the
assured was rated below A 2, and the Company had
reserved the right to fix the additional premium :
and unless assented to by the assured and the pre-
mium paid or secured, the contract of insurance,
in respect to the particular shipment did not be-
come binding ; held, that the premiums were to be
settled when the risks were reported, not at any
other period.

Idem, 624

18. Where the plaintiff objected to the premium,
and the Company, in answer to this, respond* that
it bad reserved the right in the policy to fix
the premium in the case of vessels raung below A
2, and that it oould not consent to its determi-
nation bv a third person ; held, that there was no
waiver of this right of fixing the premium on the
part of the Company.

Sun Mut, inB, Co. v, WrighU 629

INTEREST.

1. By the construction of the Statute of the Ter-
ritory of Minnesota, after the day spedfled for the
payment of notes, the interest is to be calcu-
lated at the rates therein mentioned, or aooordinir
to the rate established by law, wheb there is no
written contract on the subject between the parties.

Brewster v. If alre>leld, 901

2. The contract being silent as to interest after
due, the creditor is entitled to interest after that
time, by operation of law, and not by any provis-
ion in the contract.

Idem, 301

JUDGMENTS.

SxB Former Adjudication, State Laws aitd De-

CIBIOM0.

1. The State Court properly vacated its Judgment,
as to two partners, after the third, the solvent part-
ner, had bieen released firom it.

Clark V. Botren, 337

2. Where the whole arrangement to secure the
debt was annulled, the original indebtedness stood
revived, and was properly enforced by the judir>
ment of the Circuit Court.

Idem. 337

JURISDICTION.

See Parties, ADMiRAi/rT, Appeal and Brrok.

Mandamus.

(I) Generaixt.

(2) AOnON AGAINST STATE.

(8) Amount IN Controversy.
(4) State Laws and Decisions.

(1) Oenbraixt.

1. This case is the same in principle with that f if
Guild V. Frontln. afiBrmed in Suydiun v. Willlamstui.

Kelsey v. Forsyth, 32

2. The agreement of parties cannot authorise this
court to revise a Judgment of an inferior court, in
any other mode than that which the law presovibi;^.

Idem. 32

8. Nor can the laws of a State authorise a Dis-
trict or Circuit Court to depart from the prooet^
ings and rules prescribed by Congress.

Idem. 3S

4. The hill alleges that Bridge Company is a Oir<

poration and citizen of the State of Indiana; held.

that the averment of oltiaenship was suAdent

Covington Draw Bridge Co. v. Shepherd, 33

68, n, 64, tt U. S.

Gbmeral Index.

xxi

6. The general issue raises an issue upon the mer-
its and leaves the jurisdictional allegations with-
out a traverse.

PhiL WiL A Bolt. R. H. 0. Qui0ley, 78

6. Mo question involving the capacity of the par-
ties to litigate in the Circuit Court can be raised
under the general issue.

/d«m. 78

7. The consent of parties cannot give Jurisdiction
to this court, where the law does not give it.

BcXlanct v. FV)rsvt^ 148

8. Wittiout an appeal taken in the District Court,
this court has no jurisdiction, and the consent of
parties cannot cure the defect.

l^m. 148

0. But the plaintiir in error may withdraw the

transcript now filed, and use it upon a new appeal.

Jdtm, 148

10. Where vessel was sold by marshal, and the
proceeds paid into the District Court wblcii,decreed
that the sum claimed by petitioner was due from
the fund in court, but that as the fund might not
satisfy all claims, no order for payment would be
made until further advised ; held, that there was
no final decree upon which an appeal would lie.

Ifontgomery v. AnAe/t^rtiy 160

11. The decree was not final, even as to the
amount in controversy between these parties.

Idtm, 160

12. The Circuit Court, therefore, had no jurisdic-
tion, and the appeal ought to have been dumiased.

I6tm, 160

18. The Circuit Court was not authorised to re-
mand the case to the District Court, to carry into
execution its decisions.

li. As the defect of jurisdiction in the Circuit
Court appears upon the transcript, it cannot be
cured by an amendment in this court.

16mm. 160

18. This court disclaim altogether any jurisdic-
tion in the courts of the United States upon the
subject of divorce, or for the allowance of ali-
mony.

Bathtr v. Barber, J8«6

16. The parties to a cause for a divorce and for
alimony are bound by a decree for both, which has
been nven by a State Court having jurisdiction of
the subject-matter and. parties.

Idem. 896

17. Such a judgment or decree will be carried in-
to judgment in any other State, to have there the
same binding force that it has in the State in which
it was originally given.

Idem. 886

18. For such a purpose, both the equity courts of
the United States and of the States nave jurisdic-
tion. Idem. 886

19. The jurisdiction of the courts of the United
States, in cases like the present, is derived exclu-
sively from the fact that the parties are citizens of
different States.

Jeter v. HewUU «45

20. Where the original debtor died insolvent and
his surety died insolvent, and a portion of the as-
sets belonging to the estate of the latter is in
hands of the surety of his administrator, and a dis-
covery of the assets in hand, and their application
to the payment of the debt, are required, the Cir-
cuit Court is authorized to entertain the suit.

Oreen's Adm'rx v. Creighton, 419

21. The jurisdiction of Courts of Admiralty, in
matters of contract, depends upon the nature of
the contract ; but in torts, it depends entirely on
locality.

PhUa., WU. A Ball. R. Co. v. PhOa. A
Havre de Grace Steam Tweboal Co.^ 488

22. If wrongs be committed on the high seas, or
within the ebb and flow of the tide, they come with-
in the Jurisdiction of that court.

Idem. 488

23. The term ** torts,** when used in reference to
admiralty Jurisdiction, is not confined to wrongs
or injuries by direct force.

Idem. 488

24. It includes, also, wrongs suffered in conse-
quence of the negligence or malfeasance of others.

Idem. 438

25. New Jersey Steamboat Co. v. The Merchant's
Bank of Boston, 6 How., 834, affirmed.

Mmrewood v. Eneqiiist, 616

26. Charter-parties and contracts of affreight-
ment are ** maritime contracts," within the* true
meaning and construction of the Constitution nnd
Act of Congress, and cognizable in Courts of Ad-
miralty by process either in rem or in personam.

Idem. 616

See How. 21,22, 2S, 24.

27. PeoDle's Ferry Co. v. Beers, 61 U. S. (20 How.)»
401, considered.

Idem^ 616

28. The Circuit Court has jurisdiction of bill to
collect assessments on city property levied under a
state law.

Fttch V. CreiohUm. 696

29. The equity Jurisdiction of the courts of the
U. S. depends upon the principles of general equi-
ty, and cannot be elfected by any local rcmedy,un-
less that remedy has been adopted by the courts of
the U. S.

Idem. 696

80. Courts of general jurisdiction are presumed
to act by right, and not by wrong, unless it clearly
appears that they have transcended their powers.
Nations v. Johnmnt 886

31. Notice to the defendant actual or construct-
ive, however, is essential to the jurisdiction of all
courts: actual notice ought to be given in all oases
where it is practicable, even in appellate tribunals.
Idem. 688

82. In the case of conflicting authorities under a
State and Federal process, on which property has
t>een seized, the questions as to which authority
shall for the time prevail depends upon the ques-
tion, which jurisdiction had first attached by the
seizure and custody of the property under its proo-

Freeman v. Howe, 749

88. This rule applies to an attachment issued by
the U. S. arcuit Court.

Idem. 749

84. Where property has been seized under the
process of attachment, from the U. S. Circuit
Court, and is in the custody of the marshal, the
right to hold it is a question belonging to the Fed-
eral Court, under whose process it was seized, to
determine, and there is no authority, under the
process of the State Court, to interfere with it.

Idem. 749

35. It belongs to the Federal Courts to determine
the question of their own jurisdiction, the ulti-
mate arbiter, being the supreme judicial tribunal
of the nation.

Idem. 749

36. When power or jurisdiction is delegated to
any public officer, or tribunal over a subJect-mat-
ter, and its exercise is confided to his or their dis-
cretion, the acts so done are in general binding and
valid as to the subject-matter.

Beithier V. Linn^ 764

87. The only questions which can arise between an
individual and the public, or any person, denjing
their validity, are power in the officer ana fraud in
the party.

Idem. 764

(2) Action against State.

88. This court may exercise its original jurisdic-
tion in suits against a State.

Com. of Ky. v. DenniKm. Ac., 717

89. In all cases where original jurisdiction is
given by the Constitution, this court has authority
to exercise it without any further Act of Congress.

Idem. ' • 717

(8) Amount in Controvxrst.

40. Where,as in ejectment, or a suit for dower.the
value does not appear in the pleadings or evi-
dence, affidavits may be received to show that the
value is enough to nve Jurisdiction.

RU^mxmd v. MUioaiilcee, 78

41. Case will not be postponed or reinstated, to
give time to produce affidavits of value.

Idem. 78

42. They come too late after the case has been
dismissed, for want of jurisdiction.

Idem. 78

43. Where the value is stated in the pleadings or
proceedings, affidavits are never received to vary
or enhance it, in order to give jurisdiction.

Idem. 78

44. The Act of May 81st, 1844 (6 Stat., 666), author-
izes a writ of error, upon a final judgment in a Cir-
cuit Court in any dvil action brought by the U. S.
for the enforcement of the Revenue Laws, or for
the collection of duties, without regard to the sum
or value in controversy.

Maeon v. Oamble^ 81

46. The writ of error is authorized only in those
cases in which the United States is plalntilfs.

Idem. 81

46. The law cannot be extended to suits brought

by the importer against the collector ; and in such

cases where the sum or value in controversy does

881

xidi

Gbnbkal Ikdbx.

not exceed $2,000, the writ must bo dismissed for
want of Jurisdiction.

Mason v. Gamble 81

47. Where a decree was rendered, in favor of the
libelant, for the amount of f relffht, |iS,888.06, and
that B.pny to the libelant $&83.84 thereof , and that
B. pay I1J54.22 thereof; and 8. appealed from the
decree of this court, the court dismissed the appeal
on the ffround that the decree airainst 8. is leas than
$S,000.

aifton V. Shddon, 489

48. But if all the freight was Jointly decreed
asrainst the claimants, the appeal must still be dis-
missed, as then both claimants should have Joined

Idem. 4«»

49. The decree of the Circuit Court was In favor
of the libelants for the sum of $2,302.78, with leave
to the respondents to set off the balance due them
for f relfrht, if they should elect to do so. After-
wards, the respondents appeared In court, and
elected to set off this balance against the sum de-
creed airainst them, which reduced the amount to
$l,071JPi.

Sampson v. WOsh, 633

60. But in making this election, the proctors for
the respondents stated in writing, and filed in the
court, that the election to set off was made, with-
out any waiver of their right to appeal from the de-

Idem. ««»

51. After this election was made, the court, on the
31st of August, 1868, passed its decree In favor of
the libelants for the above mentioned sum of
$1,071.27, with interest from July 20, 1868.

lann. «3«

52. This was a final decree of the court, and the
one from which the appeal Is taken ; and, as It is
below $2,000, no appeal will lie, under the Act of
Congress, ^^^

Idem. 638

58. And neither the reservation of the respond-
ents in making their election, nor even the consent
of both parties, if that had appeared, will give Ju-
risdiction to this court where It is not given by law.

Idem. 68»

54. By the Act organizing Oregon Territory,
writs of error and appeal from final decisions
of its Supreme Court shall be allowed to the Su-
preme Court of the U. 8., where the value of the
property or the amount in controversy shall ex-
ceed IKZ.O0O, and In cases where the Constitution of
the United States, or an Act of Congress, or a
Treaty of the U. S., to brought in question.

LtntmsdaU v. Parrieh, SO

66. Where the amount of damage does not appear
from the bill, or otherwise: and neither the Consti-
tution of the U. d.. nor an Act of Congress, nor a
treaty, was brought in question, there is no Juris-
diction in this court to revise the decree of the Su-
preme Court of Oregon.

Idem. 80

WhUev.WrighU 879

Newberry v. Ohio, 730

56. Where, after Judgment in the Supreme Court
of Wisconsin and before writ of error was sued out,
the State Court entered on its record, that In such
final Judgment the validity of certain Acts of Con-

f:re88 was drawn In question, and the decision of
he court was against their validity, respectively ;
held, that this cerUflcate was not necessary to give
this court Jurisdiction.

Ableman v. Booth, 1 09

57. There can be no such thing as Judicial author-
ity, unless it to conferred by a government or sov-
ereignty.

Tdem. 109

58. This court has Judicial power over all oases
artolng under the Constitution and laws of the U.
8., and in such cases, as well as others enumerated,
has appellate Jurisdiction both as to law and fact,
with such exceptions as Congress shall make.

Idem. 109

60. The plaintiff in error must claim for himself

some title, right, privilege or exemption, under an

Act of Congress, ftc., and the decision must be

against his claim, to give this court Jurisdiction.

Hale V. Oainee, 204

60. Alleging a title in the U. 8., by way of defense.

is not claiming a personal interest affecting the

subject in litigation, within the 26th section of the

Judiciary Act.

Idem. 804

81. The courts of the United States have no Juris-

8t8

diction over the settlement of inaoIvencieB In the
state courts.

Adams v. PreftoJi. S73

62. Under the 25th section of the Judiciary Act. it
is not material whether the Invalidity of a title was
decreed in the State Court upon a question of ftet
or of law.

Lytic V. State of Arkajuas, SOO

63. The fact that the title was rejected In that
court, authorizes thto court to re-examine the de>
cree.

Idem. 300

64. The adjudication of the Regtoter and Beoelv.
er, which authorized the entry of land, to subject
to revision In the courts, on showing that the entry
was obtained by fraud and false testimony as to
settlement and cultivation.

Idem. 900

65. The Act of Limitation of the State to a defense
having no connection with the title, and thto court
cannot revise the decree below in thto respect, un-
der the 26th section of the Judiciary Act.

Idem. 300

68. Where the title to land under confirmation by
U. S. Commissioners was directly drawn in ques-
tion, and the dectolon below rejected the title, thto
court has authority to re-examine the deoislon of
the state court.

Berthold v. MeDotuOd, 318

67. Bt the 12th section of the Judlctary Aot a cit-
izen oi Massachusetts, when sued by a citizen of
Texas in a state court of Texas; no matter what
the cause of action may be, provided It demand over
$600. may remove the suit to the U. 8. District
Court.

Ghreen v. Custard, 471

68. The exception to the 11th section has no pos-
sible application to the case.

Idem, 471

60. This may be ascertained, either from the
pleadings, or by bill of exceptions, or by a oertifl-
cate of the court. But the assignment of errorStOr
the published opinion of the court, cannot be re-
viewed for that purpose.

Idem. T39

70. Where It does not appear that there was any
complaint that a State Act was contrary to tlie Oon-
etltution of the United States, and the only ques-
tion presented to the court, and decided by it,
was, whether the provisions of the state Act were
consistent with those of the new State Constitotloa,
thto court has no Jurisdiction.

Idem. 739

71. Whore the record does not show that any ques-
tion arose or was decided by the state court walob
this court has authority to re-examine by virtue of
the 25th section of the Judictary Act, the writ of
error must be dismissed.

porter v. Foley. 134

72. Where the only question In the case was,
whether an Act of Assembly of Kentucky, auttuv-
Izlng an executor to sell the real estate of minon,
was a valid exercise of power by the Legtoiature,
this court has no authonty to re-examine the ease.

Idem. 134

73. Where the Circuit Court of a State refused an
Injunction, and from the order of refusal, the
plaintiff appealed to the State Court of Appeals,
and that court affirmed the order of the Circuit
Court and remanded the case, and from this decis-
ion of the State Court of Appeals, the case to here
upon writ of Brror, the Bpp<^ to thto court cannot
be sustained.

ReddaU v. Bryan, 749

74. The case Is still pending, and there to no final
decree : nor to there In the plaintllTs bill any right
claimed under the laws of the United States.

Idem. 740

75. Where the case has been brought here by writ
of error directed to the Supreme uourt of a State,
and the Judgment which It to proposed to revise to
a Judgment reversing the decision in the court
below, and awarding a new trial ; held, that thete
Is no final Judgment In the case, and the writ must
be dtomissed for want of Jurisdiction.

Tracy v. Holeombe, 743

LANDS.

AUENB, APPBAL and ERROR, DCSD, BfBCnOPR.

KviDENCB, Jurisdiction, Statb Laws arp
Decisions. Taxis, Vkndorano Vsndss.

(1) ORNBRAXiLT.

(2) MaxiCAN Ci«AiifS.

(1) Obnbrallt.
1. Where the liCgislature makeeaptoin provto-

62, 68, 04, 65 U. ft.

GSNICIIAL IkD£X.

zxiii

iOD, without maldivany exception, the oourtscan
make none.

French v. Spencer^ 97

2. Where the warrant is recited in the deed, and
the quantity of land it calls for, and the grantor
irrants, torgalns, and sells the said land ; held, that
the deed was a valid conveyance of irrantor's Inter-
•est in the land at the Ume the deed was executed.

Idem. OT

8. The patent relates back to the location of the
warrant, and constitutes part of the title.

Idem, 97

4. An Intermediate bona Me alienee of the in-
•dpient interest may claim that the patent inures
to his benefit by an ex postfcteto operation, and re-
delve the same protection at law that a court of
equity could afford him.

Jdtm. 97

G. A patent for land must be interpreted as a
whole; its various provisions in connection with
■each other, and the legal deductions drawn there-
from, must be conformable with the document.

Brown v.Huf/ar^ 13S

6. This construction and these deductions are
within the exclusive province of the court.

Idem. iXS

7. Proof of the objects or subjects to which it is
applicable is proper.

Idem. 1»«

6. In ascertaining the boundaries of surveys or
patents, the rule is, that wherever natural or per-
manent objects are embraced in the calls, these
bave absolute control, and both course and dis-
tance must yield to their influence.

Idem. 1»5

9. Where a line is described as running to a river,
■and thence up and down with the river, the line is
to follow the river according to its meanderingsand
turnings, and In water-courses not navigable must
be ad mediiunii Mum aquoe.

Idem. 1«5

10. Where a patent from the U. 8. grants, *' unto
the renreeentcAives of O. and M. and to their heirs,"
the said lot above described, and their heirs and as-
signs, forever, as tenants in common, extrinsic
proof was admitted showing who were such rep-
resentatives.

Mfjrehouse v. Phelps. 140

11. The patents, having been made for the t>eneflt
of those who obtained the certificate of preemption
4ind paid for the land, are technically accurate.

Idem. 140

12. The Act of March 18, 1818, wanting 100,000
4icres,called the Donation 'lYact, did not authorize
the register to select the school lots in that tract.

jjickenti V. Mahana^ 158

13. The Act of March 8, 1803 conferred that pow-
«r on the Secretary of the Treasury.

Idem. 158

14. The facts, that they were not sold nor offered
for sale and were claimed as school lands ; that the
trustees for the township took possession of them;
the indorsement on the plat of the lots, of the
wQrd "school*'; that the township had no school
lands assigned to It, unless the lots referred to were
««islgned ; were proper to be submitted to the Jury
from which they might have presumed that the lots
had been duly selected by the Secretary of the
Treasury for school lots.

Idem. 168

15. A holder of a New Madrid certificate had a
right to locate it on any public land authorized to
be sold.

Eagton V. SdlUbwry^ 181

Hale V. Oainen, X64

16. All New Madrid warrants not located within
one year from the 26th of April, 1822, are null and
void.

Ecuton V. Salittbttryf 181

17. Where a oonvesrance was made by one. not
having the legal title; but afterwards, the legal
title vested In him, it inured, bv way of estoppel, to
his grantee, and those who claim under blm.

Idem. 181

18. The patent is the superior and conclusive
evidence of the legal title.

Fenn v. Holme, 108

19. Until it issues, the fee is in the government,
which by the patent passes to the grantee, and he
is then entitled to enforce the possession in eject-
ment.

Idem. 108

20. All the incipient steps authorizing the issue
of the grant, the Governor to sign It, and the Secre-
tary to attach the great seal, are presumed as hav-

ing been regular ; nor is the purchaser required to
look behind the patent.

Lea V. PotkCo. Copper Co., SOS

21. Where the legal title was vested by the grant,
and has thus stood a number of years, and impor-
tant rights have grown up under it, a court of equ-
ity will not Interfere, on general principles of
Justice.

Idem. SOS

28. If the equity conferred by the entry was in
William Plokney Lea, the complainant, and the pat-
ent issued in the name of William Park Lea, and
those who have purchased from the latter did so
innocently and ignorautly and paid for the prop-
erty and took legal conveyances for it from him,
with an honest t>elief that they were acquiring a
legal title from the true owner, then the complain-
ant cannot set up his equity behind the grant to
overthrow the purchase.

Idem. SOS

23. And the respondents might buy in the legal
title after they had notice. If they were Innocent
purchasers, holding under others.

Idem. SOS

24. The Act of Congress of 8d March, 1835, made
an appropriation of lands to be applied to the satis-
faction of Virginia military land warrants, suf-
ficient to pay ninety per cent, of the warrants re-
oolvcd

Walker v. Smith, SS8

26. On the 81st of August, 1852, Congress passed
an Act, which authorized an issue of land scrip in
favor of the present proprietors of any outstand-
ing military land warrants, &c. This Act has b^n
construed to Include the ten per cent, not given on
the surrendered warrants.

Idem. SS8

26. The question as to whom may be considered
as the ** present proprietor *' of these surrendered
warrants, must be decided by the Secretary of the
Interior in the first instance, by the rules, customs
and practice of the Uuid Oflice.

Idem. SS8

27. Where the defendant, assignee or grantee of
the unsatisfied ten per cent, of a quantity of said
warrants, had paid a large and valuable considera-
tion without any notice of plaintiff's claim, had
made his proofs, and had the decisions of the Land
Office in his favor ; held that ho had obtained an ad-
vantage of which a court of equity would not de-
prive him.

Idem. SSS

28. The Indiana State laws apportioning the
school fund do not violate the Acts of Congress
providing that the proceeds of the 16th section
shall be for the use of schools in the township.

Springjield Tovmehip v. Quick, SftO

29. Where the plaintiff below derived his title
through a preemption claim, this entry was held to
be valid by the state courts of Arkansas, and a suf-
ficient legal title to sustain ejectment.

Hale V. Oainee, SSO

80. Where the defendant relied on a survey
founded on a New Madrid certificate; held, that un-
til the survey was presented to the Recorder of
Land Titles at St. Louis, and recognized by him as
valid, it could have no force.

Idem. S66

31. Where titles in controversy are equities only,
as to the priority between these equities, the state
courts properly received parol evidence, reaching
behind the confirmation.

Berthold v. McDonald, S18

32. The rule laid down by this court In the case of
Oar land v.Wynn, **that where several parties set up
conflicting claims to property, with which a special
tribunal may deal, as between one party and the

{rovernment, regardless of the rights of others, the
atter may come Into the courts, and litigate the
conflicting claims,*' followed.

Idem. 818

83. Where each party has a good title, as against
the United States, in a contention between double
concessions, which balanced each other, proof
could be heard to determine the better rights be-
tween the contending parties.

Idem. S18

84. Where one has been Judicially declared not to
be entitled to land by the decree of the Supremo
Court, that, of Itself, Is an eviction under the law of
Louisiana.

FUnoers v. Foreman, 405

85. In that State it Is not neoessarv, to constitute
an eviction, that the purchaser of land should be
actually dispossessed.

Idem. 405

Bee How. 21, 22, 28, 24.

U. 8., Book 16.

H88

xxiv

General Index.

88. An eviction may take place when the vendee
continues to hold the property under a different
title from that transferred to bim by his vendor.

FUtvoera v, Fttremanj 405

87. The Civil Code of Louisiana provides that the
testator may give the seisin of the whole or of a
part of his estate to his executor, which seisin con-
tinues for a year and a day, but may be prolonged
by an act of the court.

Idem, 406

38. The seisin of the executor is paramount to the
seisin which the law vested in the heir Immediately
on the death of his ancestor, and the heir can only
deprive the executor of it by providing security
for the performance of his obligation.

Idem, 406

89. When a testamentary executor submitted
to the title of others, and paid them for it, that was
an eviction, which gave to him a right of action
In behalf of the succession against the warrantors
of his testators.

Id^m, 406

40. His right of action passed to the heirs when
he delivered the succession to them, or whenever
it came to their hands by due course of law.

Tdem. 406

41. Where lands were purchased bv one with his
own money, and the titles were made, for his own
use, to a married woman, under authority from her,
and subsequently he sold them, and under power of
attorney from such married woman, executed a
deed to the purchaser, such deed was held good
against her heirs.

Oridley v, Westbrnok^ 412

4R. Held, also, that there is no material variation
between this cause and that of the same Gridley v.
Wynant, ant«, p. 411.

Idem. 418

48. The authority of that case affirmed.

Idem, 418

44. A patent for land from the U. S carries the
fee, and is the best title known to a court of law.
Such is the settled doctrine of this court.

* Hooper u. Schetmer, 468

45. In cases coming up by appeal from the district
courts of Missouri and Florida, which adjudicated
Spanish claims under the Act of 1824, the petition to
the Governor for land, and his concession must be
taken as one act; the decree usually proceeded on
the netition, which described the land as respected
locality and quantity.

Yontz V, United States. 478

40. Where the grant refers to the previous steps
(including the petition, asking for onl^' two
leagues), and carries them along with the grant, the
decree of the District Court, restricting the quan-
tity to two square leagues, must be affirmed.

Mem, 478

47. Under the Act of 1840, to aid in the improve-
ment of the Dcs Moines Rivor *' that portion from
its mouth to the Raccoon Fork" was the *' said riv-
er," on which the strip of land granted was to lie.

DtOmque & P. R. R. Co. v. Litchfield, 600

48. Grants of this description are strictly con-
strued a;alast the grantees; nothing passes but
what is conveyed in explicit language.

Idem, 500

49. The donation stands on the same footing of
a grant by the public to a private company, the
terms of which, if not expressed, cannot be im-
plied.

Jefcm. 500

50. The Act of Congress was a grant to Iowa of an
undivided moiety of the tract lying on each side of
the river from the Raccoon Fork to the Missouri
line. Idem, 50O

51. No authority was conferred on the executive
officers administering the public lands to do more
than make partition between Iowa and the United
States, as prescribed by the Act.

Idem. 500

52. It was impossible to make partition under the
grant, of lands lying outside or the boundaries.

Idem, 600

53. Where the case involved the title of M. as
contradictory to the title of O. ; held, that the U. S.
officers are not bound to settle this dispute between
these parties, nor should either party oe permitted
to carry on the litigation, by assuming to act for
the government.

Uniled States v. While, 560

54. Nor can this court be thus compelled, on an
appeal by the Attorney-General, to become the ar-
biters of a dispute in which the government has no
concern.

Idem. 500

S84

55. The Act of Congress (8d March, 1861. sec. 13),
points out the mode in which oontestlog claimants
may lit Igate their respective rights to a patent from
the government.

Idem, 690

56. Instead of an appeal to this court to settle the
rights of M. in a proceeding in which he Is no party,
the claimants under him should proceed In the
mode pointed out by the Act.

Idem, 660

57. Grants of land bounded by fresh water riv-
ers, confer the proprietorship on the grantee to
the middle thread of the stream and entitle him to
the accretions.

Jofies V. Soulard, 604

58. The doctrine, that on rivers where the tide
ebbs and flows, grants of land are bounded by ordi-
nary high water mark, has no application In such
case ; nor does the size of the river alter the rule.

Jaem. 604

59. The city charter of St. Louis, of 1809, extends
to the eastern boundary of the State of Missouri,
in the middle of the River Mississippi.

Idem. 604

60. The school corporation held the land In de-
pute, with power to sell and convey the same in
fee to the defendant in error, in execution of their
trust.

Idem, 604

61. The entry set up In defense in the court below
is void, as held in Klssell v. The St. Louis Scboob.
50 U. S.

Idem, 604

62. The Act of 3d March, 1823, in regard to the
Village of Peoria, can only embrace lots in the
new village or others appertaining to it.

HaUv. Papin, 641

68. The 1st section of the Act gave to the claimant
an inchoate right to a lot, woen, in conformity
with the 2d section of the Act, a survey fa«fl
been made of the lots reported by the Register,
with a plat of the lot confirmed and set apart to
each claimant.

Idem. 641

64. Wnen that had been done, the claimant be-
came a confirmee under the Act, and bis right to
the lot, as between himself and the U. S., was com-
plete.

Idem, 641

65. The law was intended to grant the lot settled
upon and improved, and no other land described as
an equivalent.

Idem, 641

66. No location of the lots could be made after
the patent for them had t>een issued by the U. S.

Idem, 641

67. The inchoate right of the claimant under the
Act was subject to a survey and designation, before
it could be matured into a title.

Idem. 641

68. Under the Act, a claimant was to have one
confirmation of '* a lot so settled and improved,"
which had been claimed and entered in the report
of the Register.

Idem, 641

69. No claimant, though he made ssTeral claims,
could, after having had one of thera oonftrmed,
transfer any right of property In the otbeis to any
persons whatever.

Idem, 641

70. No one could be confirmed in more than ten
acres of Peoria claims.

Idem, 641

71. The decision of the Register and Recetver of
the Land Office, in favor of one of two claimasts
of government land, is not conclusive of the con-
troversy.

Tate V. Carney, 603

72. The Register and Receiver are empowered to
decide on the true location of grants or oonfirma-
tions, but not on the legal questions of title.

Idem, OM

73. The decisions of the Register and Receiver do
not precludes legal investigation and dedsioo by
the proper Judicial tribunals between the parties to
interfering claims.

Idem. 603

74. They had no authority to overthrow the
decision of a prior Register and Receiver, made
more than twenty years before, and which had
been followed by possession, and as to which theire
intervened the claims of bona fide purchasers.

Idem, 6*3

75. The reserved sections of public lands along
the lines of all the railroads, wherever public UuMb
have been granted by Acts of Congress, after the

68, 69, 64, 66 V. S.

Gbnbbal Iin>Bx.

ZXT

restoration to market of such lands, lose their
character as reserved laudSi and will then be sub-
ject to the privlleires of . preemption in favor of set-
tlers.

OementB v, Warner, 695

76. The policy of the Federal Oovemment in
ftevor of settlers upon public lands has been lib-
eral. It recoflrnizes their superior eq uity to beoome
the purchasers of a limited extent of land, com-
prehending their improvements, over that of any
other person.

idem. 695

77. No Act of Congress has defined the meaning
of the term ** reserve," as applied to lands in the
various Acts, granting lands to a railroad, nor de-
termined explictty when these alternate sections
lose their character as reserves.

Idem. 696

78. No reason of public poUcv exists to exclude
this class of public lands from the operation of the
preemption laws.

Idem. 695

79. A patent Issued to defendant, by which the
tJnitod States granted to him and his heirs, subject
to the rights of any persons claiming under the
Act of Congress of dd March. 1828, Is a fee simple
title on its face, and is such a title as will alf ord pro-
tection to those claiming under it.

Meehan v. I^\)rauth, 730

80. In the location and survey of claims arising
under Acts of Congress, like those of May, 1820, and
March, 1823, the Executive Department of the gov-
ernment has, in general, ex elusive jurisdiction, and
all questions arising upon their locatidn and survey
are administrative in their nature, and must be
disposed of In the Land Office.

BaUance v. FiinyiK 1*8'. 783

81. A patent fn^m the U. 8., containing a saving
of the rights of any and all nersons claiming under
the Act of Congress of 8d March, 1823. did not by
such saving create any fiduciary relation between
the claimants under such Act of Congress and the
patentee.

QrtoQ V. Florsyth, 731

82. An imperfect Spanish title, claimed by virtue
of a concession, was, by the laws of Missouri, sub-
ject to sale and assignment, and subject to be mort-
gaged for a debt.

MoMeyv. Paptn. 734

88. Where heirs take lands by descent, with the
Incumbrance of a mortgage attached, they hold
them In like manner that their ancestor held.

Idem. 784

84. The subsequent grant of the lands to the heirs
by Act of Congress or 1830, carried the equities of
the mortgagee, under a prior mortgage executed
by their ancestor, with the legal title of which they
took the benefit.

Idem. 784

85. The Act of 1820, allowing the soldier to ex-
change his land, did not oarrv with it the prohibi-
tion against alienation contained in the Act of 1812.

maxwell v. Moore^ S51

(2.) MsxiGAK Claims.

80. A claim for eleven leagues, granted to Sutter
by Alvarado, Governor of California, sustained.
UnUed SUUea v. Sutter, 1 19

87. The petition for the surplus, or mbrante, im-
plies there was an existing and operative grant.

Idem. 119

88. TheMexicanlawof 1828aathorizes the politi-
cal chief to grant lands to an empreaario, who may
wish to colonize.

89. But the grant shall not be definitely valid
without the previous approbation of the Supreme
Oovemment.

Idem. 119

00. No law of the U. S. authorizes this court to

8 renounce forfeiture for any act or omission since
[le date of the Treaty of Qaudaloupe Hidalgo.
Idem. 119

91. The evidence falls to establish the grant pur-
porting to be issued by Micheltorona.

Idem. 119

92. Requisites of a Mexican grant considered.
Idem. 119

98. It Is competent to persons interested to om-

J>loy the name of the original claimant, in proceed-
ngsto establish the grant.

Idem. 119

94. Micheltorena, Governor of California, while
confined to his Capital by Insurgents, issued a de-
cree, by which he conferred upon citizens who had
solicited lands, the lands designated in their ap-
plications, authorizing Sutter to give them here-

6ee How. 21, 22, 28, 24.

after a copy thereof; such decree was sent to Sutter
to enable nim to raise a military force to assist the
Governor, and was known as Sutter's ** general
title.*' Held, that the decree had no signification ex-
cept an an appeal to Sutter and such persons, and a
{>romiso to them that he would give them the land
n case of their assistance so that he was success-
ful.

U. 8. V. Nyey 135

U. 8. V. Baaeett, 136

96. The power given Sutter was abrogated when
Micheltorena was compelled to abdicate and leave
the country.

Idem. 136

90. A copy of such decree given by Sutter to

claimant, more than a year or fifteen months after

the abdication of Micheltorena, had no validity and

conferred no title to land.

Idem. 136

97. Where fraudulent attempts were made to en-
large the quantity granted in a Mexican grant, by
erasures and interlineations, after California had
been ceded to the U. S.. that cannot take away
from the wife and children of the grantee their
claim to the original grant.

U. 8. V. Weat, 817

90. The claim of Juan Jose Gk>nzales held to be

a valid claim to the land known as San Antonio, or

Pescadero, to the extent and within the boundaries

mentioned in the grant and map.

Oonxalea v. U. S., 339

99. The failure to direct the precise manner of
the location of the land, is not a fatal errer.

Idem. 333

100. Whore the general description, and the call
for '* two square leagues," found in the condition
of a grant, are inconsistent, the court must rely on
other title papers and proofs.

U. 8. V. Paehec/i, 336

101. A map, in connection with evidence of wit-
nesses explaining its contents, may be conclusive.

Idem. 836

102. Where claimant obtained an order of Gov-
ernor Micheltorena to search after and to take pos-
session of land, and selected a tract and occupied
and improved it and solicited a grant, and the
Governor referred the petition to the alcalde for
the usual informe; and this constitutes all the evi-
dence of title, and no grant was obtained; held,
that the dslm should be rejected.

U. 8. V. Garcia, 338

106. The Governor of California had no power,
in 1844, to grant gratuitously, for the purposes of
tillage, inhabitancy and pasturage, more than
eleven leagues of land to any one person, under
the law of 1824, although in dilferent tracts.

U. 8. V. HaHicell, 340

104. The public domain was the property of the
Mexican Nation. The governors of California did
not represent the nation, so as to conclusively
bind it ; to have this effect the Governor's grant
must have the concurrence of the Departmental
Deputation.

Idem. 340

106. The Assembly was the controlling power,

and could reform or nullify the Governors grant.

Idem. 840

106. Where an entry is required by statute, to
be on a condition expressed, the court is bound by
the statute.

Yturbide v. U. 8., 842

107. Where the father of petitioners obtained a
grant of the Governor of California to land, and
remained In possession thereof up to his decease,
and from that time petitioners have been, and still
are, in possession of said land, and such possession
has been, for sixteen years, and it does not appctir
that anyone else has claimed or exercised a pos^
session or right of possession over it; held, that the
title should be confirmed.

U. 8. u^De Horo, 343

108. Where the grant was originally made and
dated by Governor Alvarado during his term of
office, and the date which it now bears is an evi-
dent alteration against the interests of the claim-
ants, it is not to be imputed to them.

Idem. 343

109. Raising cattle and other stock Is unsatisfao-
tory evidence of possession and cultivation of the
land, in the sense of the Colonization Laws of
Mexico.

U. 8. V. Tettchmdker, 363

17. 8. 0. VaU^, 369

110. The non-production of record evidence of
Mexican title, excites suspicions as to its validity,
and throws upon the claimant the burden of pro-

885

XXVI

General Index.

duoloff the fuUmt proof of theflrenuinenesB of the
irnuit of which the party is capable.

U, 8. V, Vc£iio, 859

111. Record evlaenoe should be produced, or Its
abaenoe accounted for to the satisfaction of the
court.

Idem, S59

112. The ffenuineness of the offlcial signatures to
the paper title alone, can never be regarded as
satisfactory.

Idem. 859

118. The record proof Is, generally speaking, the
hlfrhest. Possession and occupation of some dura-
tion, permanency and value, are next entitled to
welffht.

17. S. «. OgU), 457

U. 8. V. Noc, 46«

lU. It will not be presumed that the Governor of
California had dispensed with the customary re-
quirements for ffrantlnjr land, because there is, in
a paper said to be a firrant, a declaration that they
had been observed, where the archives do not show
any record of such a grant.

Fuentes v, U, S., 876

116. The Act of 1824 and the Remilations of 1828
are limitations upon the power of the Governor to
make grants of land.

Idem, 876

116. Where the petition and the other require-
ments following it have not been registered with
the grant, a presumption arises agaiiiBt its genu-
ineness.

Idem. 876

117. Slight testimony should not be allowed to re-
move the presumption.

Idem. 876

118. When it appears that none of the prelimi-
nary steps for granting land in California have been
taken, this court will not confirm such a claim.

Idem. 876

lU. Where there was no proof of a survey or

measurement of the land, or of any performance of

its conditions. It may be Inferred that the grantee

had abandoned his claim.

Idem, 876

120. When the grantee allows years to pass after
the date of his grant, without any attempt to per-
form them, and without any explanation for not
having done so, and for the first time claims the
land, after It had passed by Treaty to the U. 8.,
such a delay amounts to evidence that the claim to
the land has been abandoned.

Idem, 876

121. The claims under'* the general title of Sut-
ter " are not valid claims under the Treaty of Gaud-
aloupe Hidalgo.

Idem. 876

U,S,v.R09e, 448

U. 8, V. Murphy. 4 70

U. 8. V. Pratt, 470

122. Every species of title that originated in the
rightful exercise of legitimate authority, and ex-
isted under Mexican laws at the acquisition of Cali-
fornia by the U. S., is protected by the Treaty.

Fuentes v, U, S., 876

123. It is the duty of the court to distinguish be-
tween rights acquired under the laws and usages of
Mexico, and claims depending upon the mere pleas-
ure of those who were in power.

Idem, 876

124. Where, in a Mexican claim, no imputation is
made against the integrity of claimant's document-
ary evlaenoe, and no suspicion exists unfavorable
to the bonafldes of his petition, or the continuity of
his possession, and he has been recognized as the

Sroprietor of the land since 1840, the court will not
Isturb the decree in his favor.

U. S. V. Alvieo, 456

125. In the Act of Congress of 1851, and the de-
cisions of this court, the 7th July, 1848, Is referred
to as the epoch at which the power of the Govcmer
of Calirornta, under the authority of Mexico, to
alienate the public domain, terminated.

U. 8. V. Pico, 857

126. Where the genuineness of this grant is un-
quesdonablo, and no question was decided in the
court below upon the location of the lines of the
tract, it would be irregular for this court to assume
that the action of that court will not conform to
the established rules on that subject.

U. S. V. Berreyeea, 474

127. As the decree of the District Court has not
been called in question, should any difficulty arise
in the location of the grant, it will be competent for
the appellees to invoke the aid of that court.

Idem. 474

886

128. Islands situated on the coast, were never
granted by the Govemora of California, under the
Colonization Law of 18S4, or the Regulations of 108.
U. 8. V. CastiUen), 49S

128. The power to grant the lands of the lalaods
was neither c 'aimed nor exercised by the author-
ities of the Department prior to the 80th day of
July, 1838.

Idem. 49ft

190. Grants made by the Governor, under the
power conferred, without the concurrence of the
Departmental Assembly, were simply void.

Idem 49ft

181. A dispatch from the Supreme power of the
Nation, operated of itself to adjudicate the title to
the claimant, leaving no discretion to be exerdaed
by the authorities of the Department.

Idem, 49ft

188. Mexican tiUe tp Rosa, after a careful ex-
amination of the tesamony, is pronounced false
and forged.

Lueo V. U. 8, 54ft

183. The testimony of the late officers of Cali-
f omia, cannot be received to supply or contradict
the public records, or establish a title of which
there Is no trace to be found inthe public archives.

Idem. 54ft

184. In a Mexican claim, where the claim was not
presented to the Departmental Assembly, and no
evidence exists in tne archives of any petition,
order, or the record of a grant ; held, that claimant
was bound to prove that records did exist when the
copy he produces was given, before he oould prove
their loss and their contenu.

U. 8. V. Bolton. 56»

185. Where the claim Was first made known In
I860, and there is no proof that any of the con-
ditions of the grant have been f ulftlled. and there
was no judicial possession, and no claim made to
the possession by the grantee thereof : held,that the
validity of the grant has not been sustained.

Idem, 56ft

186. The primary object of the Act, '* to ascertain
and settle the private land claims in the State of
California,*' approved 8d March. 1861. was to di>w
tinguish the vacant and public lands from thoae
that were private property.

Cattro V. Hendriek9, 576

187. For this purpose, an inquiry in to pre-ex-
isting titles became necessary. To accomplish this,
every person claiming lands in California from the
Spanish or Mexican Government, was required to>
present the same to a Roard of Commissioners.

Idem, 57ft

188. The government has no interest in the con-
tests between persons claiming ex poet faeio the
grant ; nor is it charged to decide between such
claimants.

Idem. 57ft

ISO. The refusals of the Commissioners of the

Land Office to issue a patent upon this survey, was

an appropriate exercise of the functions of his

office.

Idan. 57ft

140. In a Mexican land case, where the onlv docu-
ment found among public records shows that the
petitioner asked for land ; that the Governor did
not accede to the request, the claim was rejcctt'd.

Palmer v. U. S., 60ft

141. Where the testimony to sustain a Mexican
claim is similar to that in the oases of 0. 8. v. Nye,
62 U. S.. 406, and U. S. v. Roae, 64 U. 8., 282, the
claim rejected.

U. S. V. Ghana, 611

142. The consent of the federal Executive of Mex-
ico was essential to the validity of a grant of landa
within the border and cosat leagues.

.League v. Egery, 655

FVjous v. Eo^i 65ft

143. A grant wanting such oonFent was void.
Idem. 65ft

144. A paper, wanting in all the written proceed-
ings which the Mexican law required before a grant
could be issued, which had never been seen by any
one of the witnesses until produced two years after
the cession of the territory, with no evidence of the
time or place of its execution, with no trace of it
in the Mexican archlvesi is not entitled to conflnna-
tion as a valid grant.

U. 8. V. Ocutro, 65ft

146. Whenever a party claims title to lands in Cali-
fornia under a Mexican grant, the general rule Is,
that the grant must be found In the proper office
among the public archives; and this is the highest
and best evidence.

Idem. 65ft

AS, «•, 64, «6 U. S*

Gbnebal Ikdbx.

xxTi!

146. But as the loss or destruction of public docu-
ments may, in some instances, have ooounred upon
proof of tnat fact, secondary evidence to a certain
extent will be received.

Tdtm. 609

147. But, in order to maintain a title by secondary
evidence, the claimant must show: Ist, that the
grant was made in the manner the law required,
and recorded In the proper public office ; 2d, that the

Impers in that office, or some of them, have been
ost or destroyed ; and 8d, that within a reasonable
time after the flrrant was made, there was a Judicial
survey of land, and actual possession by him, by
acts of ownership exercised over It.

Idem. 659

148. The authenticity of the grant must first be es-
tablished before any question can arise upon the
conditions armexed by law to such grants, or con-
cerning the certainty or uncertainty of the bound-
aries specified in it.

Idem, 6fi9

LEGITIMACY.

1. A bastard in ewe, whether bom or unborn, is
competent to be a devisee or legatee of real or per-
sonal estate.

Oaine$ v. Hennen, 770

2. In Louisiana though a child may be adulterine
in fact, it may be legitimate for all the purposes of
in .eriting from its parents, if one or either of them
intermarried in good faith.

Idem. 770

3. On such a question good faith is first to be pre-
sumed, and as io what constitutes good faith, it Is
adjudged In that State that to marry a second time,
supposing the previous marriage invalid, is one of
the oases of good faith.

Idem. 770

4. The testamentary recognition of a child as le-
gitimate is of the highest legal authority. AU pre-
sumptions are to be taken in favor of such a decla-
ration.

Idem. 770

6. Access between man and wife is always pre-
sumed until otherwise plainly proved, and nothing
is allowed to impugn the legitimacy orachUd, short
of proofs by facts showing It to be impossible that
the husband could have been the father of it.

Idem. 770

1. The communication by a corporation to Its con-
stituents, of the evidence collected as to the con-
duct of its officers and agents, and Its conclusion
upon the evidence, is a privileged communication
In the absence of malice or baa faith.

PhiL, <tc., R. A. Co. V. Quiifiey, 78

2. But the privilege does not extend to the pres-
ervation of the report and evidence in the perma-
nent form of a book for distribution.

Idem. 73

8. 8o far as si corporate body authorized the pub-
lication of the lit)el. It is responsible in damages.
Idem. 7S

4. Publication, which took place after commence-
ment of the suit, cannot sustain a verdict.

Idem. 78

UEN.

Smm Carrier.

1. A creditor acquires a lien upon the lands of his
debtor by a judgment ; and upon the personal goods
of the debtor, by the delivery of an execution to
the sheriir. it is only by these liens that a creditoY
has any vested or specific right In the propert y of
his debtor.

Adlerv. Fenton, 696

2. Before these liens are acquired, the debtor has
full dominion over his property ; be may convert
one species of property into another, and he may
alienate it, unincumbered by them to a purchaser.

Idem. 696

UMITATIONS.

See Adverse Possession, Prescription.

1. Statute of Maryland constituted a bar to re-
covery by the plalntllfs, as more than three years
has elapsed after their right of action bad accrued,
before their suit.

Flowers v. Foreman, 405

2. Where heirs seek in anumpgit to recover dam-
ages for the failure of warranty to their ancestor,
and the suit Is commenced between eight and nine
years after the right of action has accrued, the

See How. 21, 22, 23. 24.

Statute of Limitations of Maryland prevents a re-
covery.

idem. 405

8. Where the common ancestor, and the defend-
ant's claiming under them, have been in the exclu-
sive possession of premises' sixty two years before
the salt, and no right has been set up by the plaint-
iffls or by those under whom they claim, until the
filing of this bill ; held, that the case Is one in which
courts of equity follow the courts of law, in apply-
ing the Statute of Limitations.

BeauMen v. Beaubien. 484

4. There are two Acts of Limitation in the State
of Michigan, either of which bars the claim of the
plaintiflia: 1. The Act of May 15, 1820, which Umits
the light of action to twenty vears : and 2. The Act
of November 1&, 1829, which limits it to ten years.

Idem. 484

5. When the plalntiffls seek to avoid the limita-
tion, by the concealment and fraud of the defend-
ants, and those under whom they claim, the par-
ticular acts of fraud or concealment should be sot
forth, as well as the time when discovered.

Idem, 484

6. When no acts of fraud or concealment are
stated, and the time when intention to defraud was
discovered was fifty years after the exclusive pos-
session of the defendants and those under whom
thev claim had commenced ; held, that the Statute
of Limitations applies.

Idem. 484

7. Construction of Act of Limitations of Texas,
which provid<*s ''that every suit to be instituted to
recover real estate shall be instituted within three
years next after the cause of action shall have ac-
crued, and not afterwards.'*

Davllla V. Mum ford, 619

8. That the elder title was on record, was not, in
that State, constructive or actual notice of the eld-
er title.

Idem. 619

0. Defense held complete under that statute of
three years' limitation.

Idem. 619

10. Where there was not five years from the date
of the deed to defendant to the commencement of
the suit : held, that the pleas of the Texas Statute
of Limitations were not proved.

Chandler v. Von Boeder, 638

11. The Act of Limitations of Wisconsin provides
that ** bills for relief In case of the existence of a
trust not cognizable by the courts of common law,
and in ail other cases not herein provided for, shall
be filed within ten years after the cause thereof
shall accrue, and not after that time."

Cleveland Ins. Co. v. Reed, 686

12. Where a bill prays that the equity of redemp-
tion be foreclosed, or tiiat an undivided interest in
the quarter section alleged to be covered bv a mort-
gage, be sold, and the proceeds appropriated to-
wards paying the debts secured, as neither of the^
modes of release are cognizable at law, and the only
remedy is in equity. It is barred by the limitation
named in the Act.

Idem. 686

13. The Act of Limitations of Illinois protects the
daim of a person for lands, which have been pos-
sessed by actual residence thereon, having a con-
nected title in law or equity, deducible of record
from that State or the U. S.

Meehan v. Forsyth, 730

14. Proceedings In Louisiana District Court held to
be an interruption of the prescription pleaded,with-
In the Civil Code of that State.

Afortin V. Ihmsen, 134

15. The Tennessee Act of Limitation was intended
to protect and confirm void deeds purporting to
convey an estate in fee simple, where seven years'
adverse possession had been held under them.

Lea V. Polk Co. Copper Co., 903

MALICIOUS PROSECUTION.

1. To support an action for malicious criminal
prosecution the plaintiff must prove, in the first
place, the fact of prosecution, and that the defend-
ant was himself the prosecutor, or that he Insti-
gated the prosecution, and that it finally terminat-
ed in his acquittal.

WJieeUr v. NesbU, 765

2. He must also prove that the charge preferred
against him was unfounded, and that it was nmde
without reasonable or probable cause, and that the
defendant In making or Instigating it was actuated
by malice.

Idem. 765

8. Malice alone is not sufficient to sustain the

887

XXVll

Gekbbal Index.

action, because a person actnated by the plainest
malice may nevertheless prefer a well founded ac-
cusation, and have a JustlQable reason for the pros-
ecution of the charge.

Idem. 765

4. Want of reasonable and probable cause is as
much an element in the action as the evil motive,
and thouirh the averment is a nefratlve one, it must
be proved by the plaintiff by some affirmative evi-
dence, unless the defendant dispenses with such
proof by pleading singly the truth of the several
facts in vol v^ in the charge.

Idem. 765

5. Either of these allegations may be proved by
circumstances.

Idem. 765

6. Want of prolmble cause is evidence of malice
for the consideration of the jury: but the converse
of theiiroposition cannot be sustained.

mem. 765

7. Probable cause Is the existence of such facts
and circumstances as would excite the belief, io a
reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was
prosecuted.

Idem. 765

8. Whether the prosecution was or was not com-
menced from malicious motives, is a question of
fact for the jury.

Idem. 765

9. If there was probable cause for the arrest of
the defendant, he can be lawfully detained a rea-
sonable time till the warrant was issued and exe-
cuted.

Idem. 765

10. Where phiintilf was detained in prison for the
space of seven days, as the necessary consequence
of his own request for delay f and neglect on his
part to offer any satisfactory security for his ap-

Bearance at the time appointed for the examina-
on; held, no ground or complaint.

Idem. 765

MANDAMUS.

1. Under the 13th section of the Judiciary Act of
17)J9, the Supreme Court *' has power to issue writs
of mandamua to any courts appointed or persons
holding oiBoc under the United States."

U. S. V. Addison. 304

2. The power of circuit courts to issue writs of
tnandamua is conllned exclusively to those cases
in which it may t>e necessary to the exercise of
their iursdiction.

Idem. 804

8. This court will not, by mandamwf, direct a
judge as to the exercise of his discretion; but it
wilfrequire him to act.

Idem. 804

4. The writ of mandamus does not issue from or
by any prerogative power, and is nothing more
than the ordinary process to which every one is en-
titled where It is the appropriate process.

Ky. V. DennitKm, 717

6. The writ of mandamus is a remedy to compel
any person, corporation, public functionary or tri-
bunaUto perform some duty required by law,where
the party seeking relief has no other legal remedy,
and the duty sought to be enforced is clear and in-
disputable.

Knox County v. AspinxoaU^ 808

6. Where bonds and coupons of a county were
issued, under a special Act, which provides that the
commissioners of the county shall assess a tax to
pay the inti^rest on the coupons, if the commission-
ers cither neglect or refuse to perform this duty,
the only remedy which the injured party can have
for such refusal or neglect Is the writ of manda-
mvs.

Idem. 808

7. The Circuit Court had authority to issue the
writ of mandamus in such case.

Idem. 808

8. It is no reason for setting it aside, that a pre-
vious alternative writ had not issued, where the
court gave them an opportunity to comply with the
law and their excuse for not doing so was equiva-
lent to a refusal.

Idem. 808

MARITIME LAW.

See Adxiraltt.

1. Respondents, in a pending libel, have the right
in a proper case to institute a cross libel to recover
damages against the libelants in a primary suit ;

888

but they should file their lltiel, take out proceB,
and have it served in the usual way.

Ward V. ChamberHn^ 818

8. When that is done, the libelants in the first

suit regularly l>eoome respondents in the cross UbdU

and. as such, they must answer or stand the oonse-

quences of default.

Idem. 818

MARRIED WOMAN.

Srb T&ubtbs.

MORTGAGE.

See Lands.

1. After a mortgage debt is discharged, the mort>
gagor or his assignee may compel the mortgagee
or nis assignee to surrender the legal title.

Smith V. OrUm, 104

2. The erasure and cancellation of mortgages
may be made in Louisiana by the judgment of a
court of competent jurisdiction, woere it has the
effect of a res judicata.

Adams v. Prtttonn 873

8. After the erasure and cancellation so made,
there can be no sulisequent reinscription of a moru
gage.

Idem. 878

4. Neither the reinscription nor the SMlngment to
the plaintiff could have the effect to aive any claim
upon property of the Insolvent wnich has tieeo
sold under the judgment of a court having iuri»>
diction in Insolvency.

Idem. 873

5. After acquired rolling stock of a BaHroad
Company attaches in equity, to a mortgage, if
within tne description, from the time it la plaoed
there, so as to protect It against the Judgment
creditors of the Railroad Company.

Pennock v. Ofie, 486

6. There Is no rule of law or principle of equity
that denies effect to such an agreement.

Idem. 486

7. Whenever a party undertakes to mortgage or

5 rant property, real or personal, in prewnti, which
oes not belong to him or has no exlatenoe, the
deed or mortgage is inoperative and void either io
law or equity.

Idem. 486

8. But the principle has no application to a case
where the mortgage does not undertake to
grant, in presently property of the Company, not
belonging to them or not in existence at the date
of it.

Idem. 486

9. Where the terms of a mortgage are: ** all pres-
ent and future to be acquired property of the par-
ties of the first part; including iron rails and equip-
ments, procured, or to tie procured.'* Ac, the law
will permit the mortgage to take effect upon the

I)roperty when It is brought in existence, and be-
ongs to the grantor, in fulfillment of an express
arreement, founded on a good and valuable con-
deration.

Idem. ' 486

10. If the Company, after having received the
money upon the bonds and mortgage, had under-
taken to divert the fund from the construction of
the road, a court of equity would have enforced a
specific performance; one of the covenants being,
that the money should tie applied to the building of
the road.

Idem. 486

. 11. Or if, after the road was put in operation, the
.Company had undertaken to divert the rolling
stock from the use of the road, a like interpositioo
might have been invoked in order to protect the
security of the bondholders.

Idetn. 486

12. As to the claim of the judgment creditors, the
bondholders of prior date present the superior
equity to have the property applied to the dis-
charge of the l>onds.

Idem. 486

IB. If the property covered by the mortgage con-
stitutes a fund more than suflAoient to pay their
demands, the court may compel the prior incum-
brancers to satisfy the execution, or on a refusal.
the mortgage having liecome forfeited, compel a
foreclosure and satisfaction of the bond debt, so a*
to enable the judgment creditor to reach the sur-
plus.

Idem. 486

14. Or the court might, upon any unreasonabk
resistance to the claim of tne execution creditor.
or inequitable interposition for delay and to hinder

62, 68, 64, 66 r. S.

Gbnebal Index.

XXIX

and defeat the execution,permit a sale of tbe roll-
ing stock sufficient to satisfy It.

Idem, 436

15. But If the whole of the property mortgaffed
Is Insufficient to satisfy the mortgaire, any Interfer-
ence of the judgment creditors with a view to the
satisfaction of their debts, consistent with the su-

f>erior equity of the bondholders, would work only
nconvenlence and harm to the latter, without any
benefit to the former.

idem. 436

16. To permit one of the holders under a second
mortgage to proceed at law In the collection of his
debt upon execution, would disturb the pro rata
distribution and give him an Inequitable prefer-
ence, and prejudice the superior equity of the
bondholders under the first mortgage.

Idem, 486

17. Mortgage to secure future advances by firm,
can stand as security for advances made after the
admission of new partners into the firm.

Lawrence v. Tucker ^ 474

18. A mortgage hoTia fide made, may be for future
advances as well as for present debts and liabil-
ities. Idem, 474

19. If the real transaction shall appear to be fair,
variance between the alleged indebtedness and the
advances which were to oe made, gives no addi-
tional equity.

Idem, 474

MUIiTIFABIOUSNESS.

1. A bill to collect assessments on several lots is
not multifarious where the assesments were as-
sessed on tbe lots by the foot front, and all against
the same defendant.

Pitch V, CreUjhton, 596

NEGLIGENCE.

1. Where injury to a steamer was caused by a
sight pile, driven Into a channel of a river by con-
tractors, and left, defendants held liable because
the pile was left In the channel by their contractors.
P/iil., <tc., R, R. Co, V, Phil., AH.deG,
St. Co., 433

S. The case Is not altered by the taxsi that the
contractors were directed to do so by the engineers,
who were tbe servants of defendant. ^

Idem. 433

8. Where It dismissed the contractors from their

contract, it became its duty to take care that all

obstructions which had been placed in the channel

by its orders, should be removed.

Idem, 433

NOTICE.

See Adverse Possession.

NUISANCE.

See Bridges.

OFFICER.

See Agent, Jurisdiction.
An objection that the commissioner had no au-
thority to act, held cured by the Act of the Repub-
lic of Texas in 1841.

Daviila v, Mumford, 619

PARTIES.

See Appeal and Error, Practice on Ck)RPORA-

TIONS.

1. Where one or more defendants sued, were citi-
zens of the State and were jointly bound with citi-
zens of other States who did not appear, the
platntilf had a right to prosecute his suit against
those served.

Cleanoater v. Meredith, «07

2. But such judgment is not to prejudice parties
not served or who did not appear.

Idem, 207

8. The plaintiff may sue, in the drcult court, any

of the defendants, although others may be jointly

bound by the contract who- are citizens of other

States, Idem. 207

4. Defendants who are citizens of other States are
not prejudiced by this procedure, but only those
on whom process has been served.

Idem, 207

5. If one of the defendants be a citizen of tbe
same State with the plaintiff, no jurisdiction can be
exercised as between them.

Idem. 207

6. There was no necessity to make a party, In
this case, one who made the contract jointly but
relinquished his right before the work was com-
menced. Fitch V. Creighton, 596

See How. 21, 22, 28, 24.

7. When a landlord has undertaken the defense
of a suit in the name of the tenant, with his con-
sent, the tenant cannot interfere witn the cause to
his prejudice.

Kellogg v. Forsyth^ 664

8. It is competent for the landlord to use the
names of the heirs of his deceased tenant to prose-
cute his writ of error, upon his engagement to bear
all the costs and expenses of the suit.

Idem. 654

9. Should the judgment be reversed, and the
cause remanded to the Circuit Court for further
proceedings, he may apply In that court for leave
to become defendant. Instead of the heirs of the
tenant.

Idem. 654

10. Where the State is a party, plaintiff or defend-
ant, the Governor represents the State ; and the
suit may be. in form, a suit by him as Governor in
behalf of the State, where the State is plaintiff;
and he must be summoned or notitied as the oflBcer
representlog the State, where the State is defend-
ant.

Ky. V. Dennimn, 717

11. A bill filed on the equity side of a federal
court to restrain or regulate judgments or suits at
law in the same court, is not an orignal suit, but
supplementary merely to the original suit and is
maintained without reference to the. citizenship or
residence of tbe parties.

Freeman v. Howe. . 749

PARTNERSHIP.

See Insurance.

1. Where goods were in the custody of parsers,
for sale on commission, and one of the partners
made false representations as to the party to whom
they were to be sold by them, tbe partnership is
liable, if, in consequence of such representations,
tbe plaintiff consented to the sale, and the sale was
actually made.

Castle V. BuUard, 4.^4

2. Where the parties have joined together to carry
on a certain adventure or trade, for their mutual
proflt^one contributing the vessel, the other his
skill, labor and experience, &c., and there is a com-
munion of profits, on a fixed ratio— it is a partner-
ship.

Ward V. Thompson^ 249

8. Of such a contract, a court of admiralty has no
jurisdiction.

Idem. JS49

4. One of several partners composing a trading
firm has power to draw bills of exchange, in the
name of tne firm, unless restricted by the copart-
nership agreement.

Kimbro V. BvUitt, sf 3

6. Bach partner of a trading firm is presumed to
be intrusted by his copartners with a general au-
thority in all the partnership affairs.

Idem. 313

6. A restriction which, by agreement among tbe
partners, is imposed upon tbe authority which one

Eartner possesses, as a general agent for the other,
I operative only between the partners themselves.
Idem. 813

7. It does not limit the authority as to third
persons, who acquire rights by its exercise, unless
they know that such restriction has been made.

Idem. 313

8. Farming partnerships are held to be within the
exception to the above stated general rule.

Idem. 813

9. Where farming was not the sole business of the
partners comoosing the firm, but they were also
engaged in running a steam saw- mill, for manu-
facturing purposes; held, they were a'trading firm.

Idem. 313

10. Where bills were drawn by the firm, and were
duly accepted and paid by the plaintiffs at maturity,
on account of the firm, their right to recover the
amount cannot be affected by the fact that one of
the drawers applied the money to an unlawful
purpose.

Idem, 318

11. Partnership is a voluntary contract between
two or more competent persons, to place their
money, effects, labor and skill, or some one or all
oi* tbcm, in lawful commerce or business, with the
understanding that there shall be a communion of
the profits thereof between them.

Berthf)ldv. OoldsmUh, 76»

12. While every partnership is founded on a com-
munity of interest, every community of interest
does not constitute a partnership.

Idem. 769

889

xzx

GEintBAL Ihdbx.

13. Whenever there is a community of interest
in the capital stock, and also a community of in-
terest in tne profit and loss, then the case is one of
actual partnership.

Bertliold v. OoldsmUh, 702

U. Actual participation in the profits as principal
creates a partnership as between the parties and
third persons, whatever may be their intention,
and notwithstanding the dormant partner was not
to participate in the loss beyond the amount of the
profits.

Idem, vea

15. That rule, however, has no application what-
ever to a case of service or special agency«where the
tmptijy^ has no power as a partner in the firm and
no interest in the profits, as property, but Is simply
employed as a servant orspeciai asent, and is to re-
ceive a ffiven sum out of ibe profits, or a propor-
tion of the same, as a compensation for his servfoes.

Idem, 762

16. Where one employed by a partnership to ne-
gotiate sales had no interest in the propertv, and It
was to remain for sale in the custody and oontrdl
of commission merchants who stood responsible
for the proceeds an<l he did not rely upon the
profits for his compensation, although he was to
nave one half the profits with a guaranty of $1,800
a year, ho was not a partner.

Idem, 768

PATENTS.

Seb Damages, Evidence.

1. Where the inventor designedly withholds his
invention from the public if, during such a con-
cealment, an invention^ similar to or Identical with
his own, should be made and patented or brought
into use without a patent, the latter cannot be in-
hibited nor restricted.

KenddUv, Winsnr, 165

2. But a delay requisite for completing an inven-
tion or a discreet and reasonable forbearance to
proclaim a discovery during its completion, is
proper.

Idem. 165

3. The phrase, ** not known or used before the
application for a patent '* means not known or used
by others bcdPore the application.

Idem. 165

4. The intent of an inventor, with respect to an
assertion or surrender of his rights, is an Inquiry of
of fact, within the province or the Jury.

Ide, 165

6. A party who purchased a patented machine

during the original term, may continue to use it

during the extended term, or he may repair it or

Improve upon it.

Chafee v. Bomton Belting Co., 240

6. However brilliant the discovery of a new prin-
ciple may be, it must be applied to some practical
purpose or no patent can be granted.

LeRoy v. T<Uham. 366

7. Tatham's patent for making pipes and tubes
from lead, tin or soft metals, is sustainable.

Idem. 366

8. In action for infringement of a patent right,
notice of special matter to be offered in evidence
must be given more than thirty days before the
trial.

Teme v. Huntinodon^ 479

9. This right defendant may exercise without
any leave or order from the court.

Idem. 479

10. When the notice is drawn, served and filed,
nothing further is required.

idem. 479

11. In such notice defendant is required to specify
the persons on whose prior knowledge he relies to
disprove the novelty of the invention, and the place
or places where the same has been used.

Idem. 479

12. Compliance with this provision, on the part of
the defendant, Is a condition precedent to his right
to introduce such special matter under the general
issue.

Idem. 479

13. If the first notice is defective, he may give an-
other, more than thirty days before the trial.

Idem. 479

14. Depositions taken before the notice was served,
as well as those taken afterwards, are admissi-
ble, provided the statements of the deponents are
applicable to the matters in issue.

Idem. 479

15. Where there is a defect, both in the specifica-
tion and in the claim for a patent, and the former

840

does not distinguish the new parte from the old,
and the latter. Instead of <daimiog the old parts,
should have excluded them, and claimed the new ;
held, there is nothing new in this combination.

PhilUps V, Paae^ 639

16. In defendant s notice of witnesses, notice of
the time when the person possessed the knowledge
or use of the Invention is not required ; the name
of the person, and his residence, and the place where
it has been used, are sufficient.

Idem. 639

PLEADINGS.

See Bills and Notes, JuBiaDicnoK, Lootatiokb,
Mui/nrARiousNESs.

1. A demurrer filed to counts on a guaranty does
not bring up the validity of that instrument for de-
cision, it must be spedally pleaded, with suitable
averments.

Clearuxtter v. MeredUht 201

2. The plalntiif has a ri^ht to proceed upon the
common counts where he claims performance sub-
sequent to the time named in the contract and ac-
ceptance by the defendant.

Emenum v. Siater, 360

8. Plea of non est factum was filed without an afll-
davit of its truth, which is required by a statute of
Mississippi ; held, that the filing of the plea is only
irregular, and a demurrer or replication to it is a
waiver of the affidavit upon the general principles
of pleading.

Bell V. Vicksburg, 579

4. But in courts of States in which this statute
exists, a plea of non est /actum, without the affida-
vit required bv it, is demurrable. Such Is the prac-
tice in Mississippi.

Idem. 579

6. The Circuit Court may .maintain the rules of
pleading prescribed by the statutes of a State, or
adopt the usual practice in the State, if not contra-
ry to an Act of Congress.

Idem. 679

6. Where the practice in the Circuit Court con-
forms to the State practice, it would be a surprtw
upon the plaintiff, and might work injustice, if we
were to sustain the plea under such drcumstances.

Idem. 679

7. The District Court may permit the withdrawal
of pleas in bar, for the purpose of pleading to the
Jurisdiction.

EJberly v, Moore, 612

8. A plea in abatement is not a nullity, if, al though
not precise or formal. It denies the averment of citi-
zenship of plalntiif s, as they affirmed it to l>e.

fdem, 612

PRACTICE.

See Bjectmsmt, Jitribdiction, Parties, Patbitk.

Pleadings.

1. Circuit courts have no power to grant a pei^
emptory nonsuit against the will of the plaintiff.

Cagtlev. BtdUird, 424

2. There cannot res-ularly be a nonsuit as to one
and a verdict as to others, whenever it appears that
there is evidence in a case to charge one or more of
the defendants.

Idem. 424

8. When there was evidence in the case tending to
charge the defendant, it was not error to overrule
the motion for nonsuit.

Idem. 424

4. If the defendant, who is a material witoeas for
the other defendants, has been improperly Joined
in a suit, the Jury will be directed to find a separate
verdict in his favor ; in which case he may oe ad-
mitted as a witness for the other defendants.

Idem. 424

5. But if there be any evidence afainst him, then
he is not entitled to a separate veroict ; his guilt or
innocence must await the general verdict of the
Jury, who are the sole Judges of the tact.

Idem, 424

6. Courts are not agreed as to what stage of the
trial the party thus improperly Joined may tnrist
upon a verdict in his favor.

Idem, 424

7. W here an action is brought) by a bona jUU claim-
ant of lands against a Uailroad Company, although
the c&BC Is made up to try the title, the court wlU
hear and decide the cause on Its merits.

DuJmque and PacifUi R. R. Co. v. LMehJIeid^ 609
B. The charge to the Jury must reoelTe a reason-
able interpretation.

BUven v, N. Eng. Screw Co,, SIO

61S, 68, 64, 66 V. S.

Genbbal Index.

xxxi

9. Under a decree authoHzlnfr one to demand
property of a receiver, the demand should be made
under a certified copy of the decree, with a receipt
upon it, that the grooas were surrendered by the re-

.Very v, WaVcint, 528

10. Such a certificate the court would have direct-
ed to be put on flle» as a voucher for the protection
of the receiver from further responsibility.

Idem. 592

11. Where an attempt was made, according to the
affidavit on which the motion was founded, to con-
fer pon the District Court, by a false and f randu-
lent averment, a Jurisdiction to which it was not
entitled under the Constitution, this was a gross
contempt of court.

Eberly v. Moort^ 612

12. In the courts of the District of Columbia, the
docket stands in the place of, or, perhaps, is the rec-
ord, and is entitled here to all the consideration that
is yielded to the former record in other States and
to the same faith and credit.

WoBhiiiyt^n, Ac, 8. P. Co. v. Sicklen, 650

13. Objection to a survey should have been urged
upon the trial at law, and it is too late after Judg-
ment upon the title to employ it to contest the is-

suing of execution.

Bdnafice r. Forsyth^ 788

PREEMPTION.

See Land9.

PRESCRIPTION.

1. Plaintiff*s claim is not barred by the prescrip-
tion of twenty year«u for she did not attain her ma-
jority until 1828, and her suit for the probate of the
will was instituted in 1834.

Gaines r. Henneiij 770

2. The prescription bad also been legally inter-
rupted on the 28ih July. 1836, the date of her first bill.

Idem. 770

3. By Louisiana Code, 3484, a legal interruption of
the prescription takes place where the possessor
has been called to appear before a court of Justice,
either on account of the property or the posses-
sion, whether the suit has been brought before a
court of competent Jurisdiction or not.

Idem. 770

4. That article of the Code contemplates a volun-
tary, intentional and active abandonment of the
suit, in order to restore the running of a right of
prescription.

Idem. 770

5. The mere absence of herself and counsel at a
term of the court, when her case was called, is in-
sufiBcient. without other evidence to convict her of
having abandoned her demand.

Idem. 770

6. After the interruption of the prescription by
the filing of the bill by the complainant, the de-
fendants could no longer claim to be in possession
in good faith, as that is defined in the Civil Code.

Idem. 770

PRINCIPAL AND AGENT.

Skk Collision, Corporations, Bills and Notes,

Bonds.

1. A letter written by the cashier of a Bank, that
the bearer was authorized to contract, on behalf of
the Bank, for the transfer of money for the gov-
ernment, does not bind the Bank.

U. S. V. Bank of (>)lumhu$, 1 80

S. The ordinary duties of cashiers of Banks do not
comprehend a contract made by a cashier, which
Involves the payment of money, unless it has been
loaned in the usual way.

Idem. 130

3. Nor can a cashier create an agency for a Bank
which he had not been authorized to make by those
to whom has been confided the power to manage
its business.

Idetn. 180

4. Where the name of the principal is disclosed in
the contract as the person making the sale through
his agent, this fixes the duty of the performance
upon him and exonerates the agent.

Oetricks v. Fordy 534

5. If a party prefers to deal with the agent per-
sonally on his own credit-, he will not be allowed
afterwards to charge the principal.

Ford V. Williams, 36

6. But when he deals with the agent, without any
disclosure of his agency, he may elect to treat the

See How. 21, 22. 28, 24. U. S. Book 16 54

after discovered principal as the person with whom
he contracted.

Idem. 86

7. The principal may show that the agent, who
made the contract in his own name, was acting for
him.

Idem. I 86

a. This proof does not contradict the writing ; it
only explains the transaction.

Idem. 86

9. But the agent who binds himself, will not be

allowed to contradict the writing by proving that

he was contracting only as agent ; while the same

evidence will charge the principal.

Idem. 86

30. Notwithstanding the Act of May 7, 182S, and-
the Act of 18S0 and subsequent legislation, the Sec-
retary of the Treasury had a rignt to employ an
agent, to make purchases for the lighthouse service,
and if ho did employ one, the law fixed the compen-
sation and appropriated the money to pay it.

Converse V. United States. 192

U. He was not forbidden to employ a revenue

officer for this purpose : and, so far as his services

were performed for other districts, he stood in the

same relation to the government as any other agent.

Idem. % 198

12. The law forbidding compensation, or reduc-
ing it to a small amount, did not apply to this serx-
ice.

Idem. 192

13. The agency was entirely foreign to his official
duties,and beyond the limits of the district to which
the law confined his official duties and power.

Idem. 192

14. Court erred in refusing to admit the testimony
in regard to such services and commissions of the
collector.

Idem. 192

15. When the authority conferred by letter of at-
torney is special and limited, the agent's acts under
it are valid only as they come within its scope and
operation.

MorrOl v. Cone, 253

16. Bona fide purchasers are not entitled to repose
credit In the recitals of the attorney in his deed,
that disclose the mode in which the authority haa
been exercised, and will not be protected against
their falsity.

Idem. * 268

17. The principal is not estopped to deny their
truth.

Idem. 263

18. Where the deed executed by an attorney is
apparently within the scope of his power, the ad-
mission therein of payment of the consideration is
competent testimony of the fact.

Idem. 263

19. But it is competent to his principal to show
that the transaction was not In fact witnln the au-
thority bestowed.

Idem. 263

20. Testimony of one of the donors of the power
that he is informed and believes that the purchase
money had not been paid to the grantors, was not
admissible.

Idem. 263

PRINCIPAL AND SURETY.

See Evtdenck.

1. That a surety in a sheriff's bond had been com-
pelled to pay the whole amount of his bond in other
suits before judgment against him, but after the
institution of the suit, is a good defense to the
action if pleaded puis darrien continuance.

Leggett v. Humphreys, 60

2. Where the complainant tendered his plea at
the proper time, and was refused the bencnt of it.
and was guilty of no laches, he is entitled to relief
by bill in equity.

Idem. 50

3. Sureties are never held responsible beyond the
clear and absolute terms and meaning of their
undertakings.

Idem. 60

4. The liability of the surety cannot be extended
by implication.

Idem. 50

5. A surety, who pays the debt of his principal,
will be substituted in the place of the creditor to
all the liens held by him to secure the payment of
his debt; and the creditor is bound to preoer>'e
them unimpaired.

Idem. 60

S41

XXZll

Gbneral Index.

6. The liabilit§r of r surety la limited by the pen-
alty of his bond.

Idem. 60

iMartin v. Tltomas^ 689

7. A subsequent indemnity by his principal will
not restore his liability when onoe discharged.

Idem, 689

8. An open and honest effort of a principal to pro-
tect his surety against responsibility about to be
assumed for him, cannot be obnoxious to objection.

Idem, 689

0. No one can proceed against the sureties on an
administration bond at law, who has not recovered
a Judgment against the administrator.

Oreen v. Oretghtoiu 41 9

10. The limit of the obligation of a surety. Is the
obligation of the principal ; and when that is ex-
tinguished, the surety is liberated.

Ca0e V. Cantdy, 430

11. When the obligation of the principal has been
ascertained by decree of the court, and has been
fully discharged, and the surety has been the vic-
tim of artifice, and judgment against him obtained
in contempt of the injunction of the court ; held, a
proper case for his relief and for perpetuating the
injunction.

Idem, . 480

12. The general rule is to attribute to the obliga-
tion of a surety the same extent as that of the prin-
cipal.

Benjamin v, HUlard^ 618

13. When the essential features of the contract
and its objects are preserved, and the parties, with-
out objection from the surety, and without any
legal constraint on themselves, mutually accom-
modate each other, there is no ground for the surety
to complain.

Idem, 618

14. Where a settlement between parties did not
embrace the subject to which the guaranty applied,
nor contain any release or extinguishment of the
covenants concerning it, the guarantor cannot
plead it in bar.

Idem, 618

15. In action to make a surety liable for an al-
leged breach of his bond, he is entitled to have the
benefit of anv irregularity which his principal could
have resisted.

Very v,JVatkinSt 6««

16. Bond ox sureties in replevin held void, be-
cause, after the same was executed bv defendants
as suretlo8,their principal, without their knowledge
or consent, and with the consent of the marshal,
erased his name from the bond.

Martin v. Z7ioma«, 689

17. It is not suflBdent that he may sustain no in-
jury by a change in the contract, or that It may be
for his benefit. Ho has a right to stand upon the
very terms of his contract ; and If he does not assent
to any variation of it, and an alteration of it Is
made, it is fatal.

Idem. 689

18. After the execution of the bond by the defend-
ants, to be delivered to the marshal, it was refused
and disagreed to by him, and it thereby became
void. Any subsequent alteration would require a
new bond or positive assent to the same, to make it
valid against the defendants, who were sureties.

Idem, 689

PROMISSORY NOTES.

See Bills and Notes.

QUESTIONS OF LAW AND FACT.

jSbk DoMiciii, Malicious Prosecution, Patents,

Will.

1. Written evidence, as a general rule, must be
oonstrued by the court.

BUven v, N. Enq. Screw Co,^ 61 0

2. *' All questions of damages are, strictly speak-
ing, for the Jury, but there are certain established
rules, according to which they ought to find.

Benjamin r. HiUard. 618

8. Whether there be any evidence is a question for
the Judge : whether there be suflBdent evidence Is
for the Jury.

Chandler v. Von Boeder, 633

4. The court erred in submitting the decision of
questions to the Jury, when there was no evidence
to raise them.

Idem, 688

RAILROADS.

1. By the Act of Incorporation of the Ohio and
Mississippt Railroad Company and the amendment

848

thereto, no such rights to county subscriptions vest-
ed - in said Company as excluded the operation of
the new Constitution of Indiana.

A9iHnwaUv, Daviem Cn„ 996

2. By the virtue of the said Acts, and of the eleo-
tlon in favor of subscription to the stock, the said
Compan V acquired no such right to thesubecriptkm
as would be protected by the Constitution of the
U.8. aninst the new Constitution of Indlaoau wliich
took effect on the 1st day of November, 1861.

Idem.

RECOUPMENT.

See Contract.

SALE.

An equitable interest in contestation mav be the

the subject of Alxma fide sale, and transfer by deed.

Smith V. Orton, I04

SCHOOLS.

SHIPPING.

See Lands.

See Caiiriek.

SPECIFIC PERFORMANCE.

See Mortoaoe.

1. In a suit for the specific performance of a ooo-
traot, if it turns out that the defendant cannot
make a title to that which he has agreed to convey,
the court will not compel him to convey less, with
indemnity against the risk of eviction.

Refeld v. Woodfolk, 370

2. The purchaser is left to seek his remedy at law,
in damages for the breach of the agreement.

Idem. 370

3. It is a general principal of equity, to grmnt a
decree of specific performance only where taere is
a mutuality of obligation, and when the remedy i»
mutual.

U, S. V. Noe. 46t

4. It will not be rendered in favor of one who ha»
been guilty of an unreasonable delay in fulfilling
his part of the engagement, and comes forward at
last, when circumstances have changed in his favor,
to enforce a stale demand.

Idetn, 46C

6. It would be unjust to revive long antecedent

covenants and dormant engagements in California.

since the change in the condition of that country,

where they were treated as abandoned.

Idem. 46S

STATE LAWS AND DECISIONS.

See Admirai^ft, Courts, Bjectmkkt, Isscrani^
JuRidDiono.v, Mortgage.

1. No State can authorize one of its Judges or
courts to exercise Judicial power, by habeas enrpwt
or otherwise, within the Jurisdiction of another and
independent government.

Ahleman v. Booths 168

2. Although the State of Wisconsin is sovereign
within its territorial limits, yet that sovereignty i?
limited by the Constitution of the U. S.

Idem, 168

8. The powers of the General Oovemmentand of

the State, although both exist and are exercised

within the dame territorial limits, are yet separat**

and distinct sovereignties.

Idem, 168

4. Where It has been decided by the Supreme-
Court of Arkansas that a special Act of that State
authorized the administrator to make a valid dce<!
and devest the title of the heirs* such decisioa m
conclusive on this court.

MctxweU V. Moore^ t6 1

5. Where the Legislature makes a plain provlaioD«
without making any exceptions, the courts of Jw-
tloe can make none.

Idem. 331

6. In ejectment to recover land in Milwaukee, thi*
oourt recognizes the validltv and btndiugopecmtion
of the orders and decrees of a Wisconsin ooart in »
partition action, anddetermines that this oouit can-
not inquire whether errors or irregularities exist
in them in this collateral action.

Parker t, Kane, 336

7. The Jurisdiction of the Circuit Oourt of MOwao -
kee extends to the rights of parties in matters of
partition, and its decree is final and effectnal for
their adjustment. That oourt also has powvr to
quiet a disputed title.

Idem.

68, 69« M» e« C. 8w

Gbmbral Index.

xxxiii

8. When former Mil In chancery In Wisconsin
was for the same cause as this ejectment suit, and

-the decrees of the courts in the chancery suit em-
braced the decision of the same question, as en-
voi ved here, they are conclusive of this controvereor.
Idem, S86

9. The rights which originate in the law of Loui-
siana, must be ascertained by a reference to the
principles adopted and administered by its consti-
tuted authorities.

Jeter v, HewitU 340

10. The sentences of its courts, except in a few
-oaMS arising under the Constitution anfl laws of the
U. S., are entitled to the same force and effect here
as they have In Louisiana.

idem, 345

11. The fact of the pendency of proceedings in in-
solvency In a state probate court will not oust the
Jurisdiction of the Circuit Court of the U. 8.

Oreen v. Creighton^ i 419

12. A foreign creditor may establish his debt In
the courts of the U. S., against the representatives
of the decedent notwithstanding the local laws rel-
ative to Insolvent estates, and the court will Inter-
pose to arrest the distribution of any surplus among
the heirs.

Idem, 419

13. The 84th section of the Judiciary Act of 1789,
declaring that the laws of the several States, except
where the Constitution, treaties or statutes of the
n. S., shall reouire or provide, shall be regarded as
rules of decision In trials at common law In the
courts of the U. S.,« in cases where they apply,
** constitutes a rule of property on which the courts
are bound to act.

Pitch V. Cretghtan, 596

14. Decision of the court of last resort of the State
in which property is situated, and in which the
transactions that form the subject of this litigation
took place, are conclusive testimony of the rule of
action prescribed by the authorities of the State.

Leaaue v. Egery, 655

FooU r. Egery, 656

15. Where the subject of the dispute Is real prop-
erty, situated within a State, its laws exoluslyeiy
govern in respect to the rights of the parties, the
modes of the transfer, and the solemnities which
should accompany them.

Suydam v. Williamson^ 743

16. The power to establish federal courts, and to
-endow them with Jurisdiction affords no pretext
for abrogating any established law of property, or
for removing any obligation of her dtixens to sub-
mit to the rule of the local sovereign.

Idem. 74»

17. Where a contrary opinion to that ex pressed by
this court has prevailed in the courts of a State,
and become a rule of property there, this court,
without re-examining its own opinion, will apply
the rule adopted in such State to the determination
•of controversies existing there.

Idem. 74S

STATUTES.

SKE COIiLKCTORS.

If there be no saving in the statute, the court
cannot add one on equitable grounds.

Ylurhide v. U. S., 34«

STATUTE OF FRAUDS.

1. Cases in which the guaranty or promise is col-
lateral to the principal contract, but is made at the
same time, and becomes an essential ground of the
credit given to the principal debtor, are, in gener-
al, within the Statute of Frauds.

Emerson v. Slater, 360

2. Other cases also fall within the statute, where
the collateral agreement is subsequent ta the mak-
ing of the debt, and the subsisting liability was the
foundation of the promise on the part of the de-
fendant, without any other consideration moylng
between the parties.

Idem. 360

8. The written agreement in this case was an orig-
inal undertaking on a good and valid consideration
expressed therein.

Idem. 360

SUNDAY.

Sex Collision.

Vessel leaving a port on Sunday, does not in-
fringe the state laws with regard to the observance
of that day.

PhUa,, Ae., B. Oo. v. Phlla.^ and Havre
de Grace S. T. Co., 438

See How. 21. 38. 88. 24.

TAXES AND TAX SALES.

See CoNSTiTCTioirAL Law.

1. By the charter of Washington City as amended.
It is not a condition to the validity of the sale of
lands for taxes, that the personal estate of the own-
er should have been previously exhausted by dis-
tress.

Th*)mpitonv,Boe, 387

2. In this case, the owners of the tax title have
had the possession, paid the taxes, built and made
valuable improvements on the lot, in the presence
of the former owners, for nearly twenty years.

Idem. 387

3. Under such circumstances, a court of Justice*
should be unwilling to exercise any Judicial Inge- *
nuity to forfeit even a tax title, where the former
owners have been so slow to question its yalidlty.

Idem. 387

4. The power to sell lands for taxes is to be found
in the Acts of Congress, not in the ordinance of the
Corporation.

Idem. 387

5. The latter can neither increase nor vary It, nor
impose any terms or conditions, which can effect
the validity of a sale made within the authority
conferred by the statute.

Idem. 887

6. The purchaser of a tax title is not bound to in-
quire further than to know that the sale has been
made according to the provisions of the statute
which authorized it*

Idem. 887

7. The instructlonsor directions given by the Cor-
poration to its officers cannot have the effect of
conditions to affect the validity of the title.

Idem. 887

8. By a statute of Louisiana, it is proylded that
every person not being domiciliated in this State,
and not t>elng a citizen of any other State or Terri-
tory in the Union, shall pay a tax of ten per cent,
on all sums actually received from a succession of
deceased persons.

Freaerickaon v. State of Loviifiana, 577

9. The Act of Louisiana does not make any dis-
crimination between citizens of the State and aliens
in the same circumstances, and was nothing more
than the exercise of the power which every State
or sovereignty possesses, and was not in conflict
with the treaty between the U. S. and the King of
Wurtemberg.

Idem. 577

10. By a law of Arkansas, sales and conveyances
made by the sheriff and collector for the non-pay-
ment of taxes shall vest in the grantee a valid title,
and shall be evidence of the regularity and legality
of the sale.

27icm(U V. LawMn^ 88

11. The intention of the statute is to cast the ontut
probandi on the assailant of the tax title of non-
compliance with the law.

Idem. 88

12. But every question with respect to the assess-
ment, or non-payment of the taxes, or the regular-
ity of the proceedings of the sheriff and collector,
were, in this case, concluded by the petition of the
purchaser to the State Court, and the decree of con-
firmation upon that petition.

Idem. 88

13. The Jurisdiction of that court over the contro-
versy is founded on the presence of the property,
and like a pr*)ceedlng in rem is conclusive against
the absent claimant as well as the present contest-
ant.

Idem. 88

14. By the law of that State a judgment or decree
oonflrmlDg such sale operates as a k>ar against all
persons thereafter claiming said land in conse-
quence of Informality or illegality in the proceed-
ings. *

Idem. 88

TREATIES.

See Taxes.

1. By the contract of cession between the United
States and Georgia, Georgia ceded to the United
States all of her lands west of a line beginning on
the western bank of the Chattahoochee Klver where
the same creeses the boundary line between the
United States and Spain, running up the said Chat-
tahoochee River and along the western baak there-
of.

State of AldtMma v. Stale of Otorgia, 556

8. This language implies that there is ownership
of soil and Jurisdiction in Georgia in the bed of the

84S

Gbnbral Index.

Blver Chattahoochee, and that the bed of the river
ia that portion of its soil which is alternately cov-
ered and left bare, as there may be an increase or
diminution in the supply of water, and which isade-

auate to contain It at Its averaffc and mean stagre
urinsr the entire year, without reference to the ex-
traordinary freshets of the winter or spring, or the
extreme droughts of the summer or autumn.

Idem. 556

8. The western lino of the cession on the Chatta-
hoochee Ulver must be traced on the water line of
the acclivity of the western bank, and along that
bank where that is defined ; and in such places on
the river where the western bank Is not defined It
must be continued up the river on the line of its
. bed. as that is made by the average and mean stage
of the water as that is expressed in the conclusion
of the preceding paragraph.

Idem. 556

4. By the contract of cession, the navigation of
the river Is free to both parties.

Idem. 556

5. ThelFreaty between the U, 8. and the King of
Wurtemburg does not regulate the testamentary
dispositions of citizens or subjects of the contract-
ing powers, in reference 4o property within the
oounmr of their origin or citizenship.

^redricktton v. Slate of Ltmigtana^ 577

0. The case of a citizen or subject of the respect-
ive countries residing at home, and disposing of
property there in favor of a citizen or subject of
the other, is not embraced in this article of the
Treaty.

Idem. 577

7. By the Treaty of October 27, 188S, the Pottowa-
tomle Indians ceded to the United States their title
to their lands in Indiana and Illinois, and Michigan
Territory, south of Grand River, and reservations
were made in favor of Individual Pottowatomies,
and to complete their title to the reserved lands,
the United States agreed that it would issue pat-
ents to the respective owners.

Doe V. Wilson, 'J**

8. The reservees took by the Treaty, directly from
the nation, the Indian title, and this was the right
to occupy, use and enjoy their lands in common with
the United States, until partition was made. The
Treaty itself converted the reserved sections Into
Individual property.

idem. 584

9. Although the government alone can purchase
lands from an Indian Nation, yet when the rights of
the nation are extinguished by treaty an individual
of the nation who takes as private owner can sell
his reserved interest.

Idem. 584

10. When the United States under a treaty selected
the lands reserved to an Indian and made partition
(of which the patent is conclusive evidence), his

f grantees took the interest he would have taken if
Iving.

Idem. 584

TRUSTS.

As between the trustee and the centuia que trusU
the trustee can have no equity against the express
trusts to which he assented.

Smith V. McCantij 714

TRUSTEE.

SsE Bills and Notes, Equity.

1. There is no incapacity in a married woman to
become a trustee, and to exercise the legal judg-
ment and discretion belonging to that character.

Qridleyv. Wynant, 411

2. A married wqman may execute a power with-
out the oo(5peration of her husband.

Idem. 411

3. Within the scope of her authority, a court of
equity will sustain her acts, and require those whose
cooperation to necessary to confirm them.

Idem. 411

4. Where a person has an independent equity. In
action to enforce the same, any Inquiry into the con-
sideration or motives that operated.upon prior par-
ties to assume their relation of trustee and cegtui que
triMtfrom whom such equity was derived,to ineffect-
ual. McBlalr v. Qlbbes, affirmed.

Idem. 411

USAGE.

SuWlLIi.

1. The custom of a party to deliver a part of a
quantity of goods contracted to be delivered,

814

though invariable, cannot excuse such party fronr
compliance with his contract.

BUven v. N. E. Screw Co., 51<^

2. To excuse full oompllance, mere knowledge (if

such a usage would not be sufficient, but the custom

must actually constitute a part of toe contract.

Idem. 510-

8. But when such custom was well known to the

other contracting party, and actually formed a part

of the contract, it may furnish a legal excuse lor

the non-delivery of a proportion of the goods.

Idem. 510

4. Parol evidence of custom, consequently, i<« it n.
erally admissible to enable the court to arrive at
the real meaning of the parties.

Idem. 510

6. Omissions may, in some cases, be supplied by
the introduction of the custom, but It is not ad-
mitted to contradict or vary express stipulations or
provisions of the contract.

Idem. 510

6. Where defendants adopted a rule to accept all
orders for goods, and to fill them in the order thcy
were received, and that rule was well known to the
plaintiffs, evidence to prove that the orders had been
taken up in turn, and filled In proportion to the or-
ders given by other customers, was admissible.

Idem. ftio

7. And evidence to show what the usage of the
defendant's business was also admissible, becau<f
that usage constituted an essential part of the se\ •
oral contracts.

Idem. . 510

8. There must be ambiguity or uncertainty up(»n
the face of a written instrument, aridng out of tlie
terms used to Justify extraneous evidence of ussf e.
and it must be limited to the clearing up of the ob-
scurity

Oelricks v. Ford, 534

9. It to not admissible, for the purpose of addinK
to the contract new stipulations.

Idem. 534

10. Proof of usage to inadmissible where there Ir
no ambiguity or uncertainty in the terms of the
contract.

Idem. 534

11. Where the plaintiff agrees to deliver flour, lo
consideration of which the defendants agree to
pay the price, parol evidence of usage to superadd
as a surety a given sum of money, is inadmissibie.

Idem. 634

12. The court below was right in excluding evi-
dence of the usage where the usage was not provt^
and because It was incompetent to vary the clear
and positive terms of the instrument.

Idem. 534

USURY.

1. Where appellee agreed to complete canal for
bonds ; held, that the bonds were not void for usury
although the amount of bonds was double tbe
amount of monev estimated as necessary to ooni-
plcte the workf the appellee having taken the ri^k
of the contract.

WhUewaUr etc. Co. v. VaUette^ 134

2. It is essential to usury. In Indiana, that a gaio
exceeding a legal interest should accrue to tb4>
lender for the loan. Where there to no loan tben*
can be no usury.

Idem. IM

3. Where there Is a loan, although tbe profit ti>
lender exceeds the legal rate, yet if that profit b
contingent or uncertain, the contract, if fic^a M
and without any design to evade the statute, is nm
usurious.

Idem. i^

VENDOR AND VENDEE.

' 8BE SPBCinC PBRPORM AKCX.

1. A court of chancery regards the transfer «•<
real property, in a contract of sale and the payment
of the price, as corretotlve obligations.

Refeld v. Wotxifolk, 370

2. The one to the consideration of the other, and
the one failing, leaves the other without a cau»(

Idem. 370

8. A vendor is allowed a lien for the price of tbe
property against the vendee and hto assigns.

Idem. 370

4. The vendee to permitted to appropriate the

f>urohase money to exonerate hto estate from a
ien or incumbrance, and in someosseeto compen-
sate for original defects in the estate, as respect*
the quantity, quality or extent of vendor's interest
therein.

Idem. 370

62, 68, 64, 65 l\ S.

Grnsral Index.

XXXV

5. If tbc contract has been executed by the deliv-
ery* of possession and the payment of the price, the
irrounds of interference are limited by the cove-
nants of the deed, or to cases of fraud and misrep-
resentation.

Idem. 370

0. If there 18 no fraud and no covenants to se-
cure the title, the vendee is without remedy, as the
vendor, selllnff in good faith, is not responsible for
the f^oodneea of his title beyond the extent of the
covt .ants in his deed.

Idem. 870

7. A vesdee, in possession under a contract of
purchase or a deed with covenants, cannot reclaim
the purchase-money already paid, to be held as se-
curity for the completion or protection of his title.

Idem. f f g^^

8. Where the vendee had notice of an incum-
brance when he made and performed his agree-
ment of purchase, and did not stipulate for any
additional indemnity to that resulting from the
covenant of warranty, the court cannot, In addition,
compel the vendor to deposit security for the ful-
filment of his contract.

Idem. 370

WAIVER.

The appearance in eoiwurm of creditors, and
acquiescence with them in the terms for the sale
of the property of the insolvent, is a waiver of all
rights of the payment of Judgments against the in-
solvent.

Adams r. Pre9t4m, 273

WILL.

Sbs Lsomif agy.

1. Mexican will not inadmissible as testimony,
because it had never been admitted to probate,
and because the witnesses had never been exam-
ined to establish it as an authentic act.

AdamBV.NorrU!^ 539

2. Mexican will not null, because it does not ap-
I)ear on the face of the will that the witnesses were
present during the whole time of the execution of
the will, and heard and understood the dispositions
it contained.

Idem. 589

3. The observance of formalities, which do not
appear on the face of the will, may be shown by
testimony dehtyn the instrument.

Idem. 589

4. Bvidenoe of a custom in California, as to the
manner of malcing wills, was competent.

Idem. 589

5. And if it became pre\'ailing and notorious, so
IIS that the assent of the public authorities may be
presumed, upon principles existing in the Juris-
prudence of Hpain and Mexico, the acts of individ-
uals, in accordance to it, are l<*gitimate.

Idem, 589

6. The instruction to the Jury, that the testator
and witnesses should alike hear and understand the
testament, and. that, under these conditions, its
publication as the will of the testator should be
made, embraced all that was necessary.

Idem. 589

7. Proof of the signatures of the deceased wit-
nesses and of the testator, and of a declaration by
him that he had made a will with a similar devise,
was competent.

Idem. 539

8. It was a proper question to be submitted to the
Jury, whether, under the circumstances of the case.
It was probable the formalities required by the law
were complied with.

Idem. 589

9. In Louisiana; where a will has tieen destroyed,
f^?condary proof is admissible to prove its contents,
and to carry it to probate.

Oainem v. Hfnnen, 770

10. Courts of probate may for cause recall or an-
nul testamentary letters, but they can neither de-
stroy or revoke wills.

Idem. 770

See How. 21, 22, 23, 24.

11. Such courts may declare that a posterior will
shall be recognised in the place or a prior will
which had been proved.

Idem. 770

IS. Where a testator devised to the Citv cf Cincin-
nati real and personal estate, in trust, for the pur-
pose of building and maintaining two colleges for
the education of boys and girls, the surplus to be
applied to education and support of poor orphans,
preference to be given to his relatives and descend-
ants ; held, that the Bngllsh Statutes of Mortmain
were never in force in tne Bngllsh Colonies; and if
they were ever considered to oe so in the State of
Ohio, they were repealed by the state Act of 1»06.
Perin v. Carey^ 770

The City of Cincinnati is capable of taking, in
trust devises and bequests for charitable uses.

Idem. 770

15. Those devises and bequests named are char-
ities. In a legal sense, and are valid in equity, and
may be enforced in equity without the intervention
of legislation by the state of Ohio.

Idem. 770

16. The direction In the will, that the real estate
devised should not be alienated, makes no perpetu-
ity in the sense forbidden by the law, but only a
perpetuity allowed by law and equity in the cases
of charitable trusts.

Idem. 770

17. There is no uncertainty as to l)eneflciarie6 ;
and the testator's preference of particular persons,
as to who should t>e pupils in the college^, was a
lawful exercise of his rightful power to make the
devises and bequests.

Idem. 770

18 The disposition which ho made of any surplus
after the complete organization of the oofleges is a
good, charitable use for poor white male and fe-
male orphans.

Idem. 770

19. Legislation of Ohio upon the subject of cor-
porations, by the Act of April 9th, 18^, does not
stand in the wav of carrying into effect the devises
and bequests of the will.

Idem. 770

WITNESS.

1. A witness, to impeach the credit of another,
must know what Is generally said of the witness by
those among whom he resides. In order to be able
to answer the Inquiry, either as to his general char-
acter or as to his general reputation for truth and
veractity.

Tetae v. Huntinodnn^ 470

2. He is not required to speak from his own
knowledge of the acts from which the reputation
of the witness has been derived, nor is ho allowed to
do so.

Idem. 470

3. He must speak from his own knowledge of
what is generally said of him by those among whom
he resides, and with whom he is conversant.

Idem. 470

4. Any question that does not call for such knowl-
edge is an improper one, and ought to be rejected.

Idem. 470

5. The question ** what is the reputation of the
witness for moral character," was properly ex-
cluded.

Idem. 470

0. Such testimony may also be excluded when it
applies to time so remote as to become unsatisfac-
tory and immaterial.

Idem. 479

7. As the law cannot fix that period of limitation,
it must necessaril}' be left to the discretion of the
court..

Idem. 479

8. When the witness had already stated that he
was not able to answer the question, the discretion
of the court was not unrcnsimably exorcised by ex -
eluding it.

Idrm. 479

84 ri

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Full text of "Reports of cases argued and decided in the Supreme Court of the United States. [1-351 U.S; 1790- October term, 1955]"

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